Sunday, December 21, 2008


There's a healthy debate, one that has gone on for many years but that has grown more robust in the past few months, about what should be done about crimes committed by members of the Bush Administration. This is most focused on the authorization of torture, but it's about other crimes, too.

The debate is taking place amongst law professors, human rights groups, bloggers and others. It is still off the radar screen of most of the country. The most basic concepts -- like that authorizing torture is a violation of U.S. law (and I won't even get into international law) -- are not understood by many, perhaps most, commentators. And certainly not by many members of congress. There does seem to be some progress, though, in making the issue more mainstream; Glenn Greenwald points to a number of recent examples.

The questions in the debate include: How should torture be investigated? By whom? By the justice department, by congress, by an independent commission appointed by congress or the president, or by some other body? Could there be prosecutions? Should some people get immunity if they agree to give evidence? How can the whole process have legitimacy to the country and to the world? How, politically, will any of this even get off the ground given that many congressional Democrats approved of torture?

I'm going to make what is surely a gross simplification and describe what I would consider to be three of the camps in the debate:

1. Investigate through some kind of independent commission; possible future prosecution.

2. Investigate through some kind of independent commission; take future prosecution off the table.

3. Have the U.S. Justice Department pursue criminal prosecution immediately.

The question of immunity is huge. Immunity proponents say that no Bush Administration officials are ever going to jail anyway; that we must therefore be practical (if not 100% principled); that only by giving immunity can any investigation get out the most information, and that getting the whole truth out is extremely important. The Truth and Reconciliation Commission is sometimes trumpeted as an example for this camp, though obviously that was a very different situation.

Opponents of immunity say that only through criminal penalties will future torture be deterred. The Bush Administration members can be shamed, but if no one goes to jail, future administrations will know quite well that they too can torture. The immunity opponents also say that while more investigation of torture is necessary, we already know most of the facts that we need to know, and that we can get the more information we need without giving immunity.

If you support the immunity arguments, you can even support the idea of Bush pardoning everyone in advance, as that will take care of it right there. I'm betting that's not going to happen, though.

Too often lost in the debate is the history of U.S. torture pre-9/11. I recommend Naomi Klein's summary from a few years ago, "'Never Before!' Our Amnesiac Torture Debate." What changed after 9/11 was not whether the U.S. supported torture as policy, but whether it publicly supported torture as policy. I'm still not sure which is a better situation.

Any investigation or commission will understandably be focused on the torture as public policy of the Bush Administration, and not the earlier history. Fair enough. What's important is that we don't just move back to the pre 9/11 policy of quietly supporting torture, be it in Latin America or elsewhere, but rather that we move to being against torture altogether.

I don't know if this will happen, but the best I would hope for is that in the context of this commission, people in power will somehow finally see how bad torture really is, and be less likely to quietly condone it in the future.


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