Torture and “laying blame for the past”
On Thursday, the Obama administration released several of OLC’s notorious, but previously classified, memos on so-called enhanced interrogation techniques. President Obama made a statement decrying the techniques at issue but offering assurance to “those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.” This promise appears to be directed at the CIA interrogators themselves, not at the lawyers who drafted the memos or the policymakers who ultimately called the shots. Still, a passage near the end of Obama’s statement suggests that the administration’s not planning to charge anybody, period. He stated:
“This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.”
This is a poetic passage, but is it right? The United States is party to a treaty (the Convention Against Torture ) that unambiguously requires it to take suspected torturers (or those complicit in torture) into custody and either extradite them or “submit the case to its competent authorities for the purpose of prosecution.” Now, Obama did not use the word “torture” in his statement, which was surely not an accidental omission—but his AG did explicitly state that waterboarding was torture in his confirmation hearings, and Obama presumably condemned these memos because he disagrees with their legal conclusion that none of the disputed techniques constituted torture. Let’s assume arguendo, then, that torture took place.
If this is so, then it seems to me that the United States has a clear treaty obligation to do precisely what Obama dismisses as a waste of time: lay blame for the past, and look for retribution. That is what obligatory-prosecution treaties are for—they aim to end impunity for international crimes by requiring governments to look backward, and demand accountability, even when they would rather not do so. I am not suggesting that the Convention requires every individual associated with torture to be prosecuted regardless of the circumstances. It states that upon investigation, the “authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State,” which seems to allow some room for the ordinary exercise of prosecutorial discretion. DOJ might reasonably decide that some of the people involved with the policy aren’t legally responsible under the criminal implementing legislation. Or it could choose to focus enforcement resources on those it deems the most responsible for the policy, and exclude the interrogators themselves. Or it could decide that it simply couldn’t win cases against interrogators—that no U.S. jury would convict a defendant who had been acting on orders and on DOJ legal advice when the chief witness for the prosecution is a senior al Qaeda operative. But Obama didn’t make those arguments—instead, his argument was simply “Time to move on.” And that seems to me to be the one argument that the Convention bars us from making.
All that said, I have considerable sympathy for the position that Obama is in and even for the “time to move on” argument. Because I teach and write about international criminal law, quite a few people have asked me in the past few months whether I think Obama should pursue torture prosecutions, and my response has often begun with some variation of “Ugh.” On the one hand I have the international lawyer reaction, which is yes, of course (assuming the evidence is there to support prosecutions). But on the other hand I have the gut reaction, the practical reaction of somebody who generally supports President Obama and his policy agenda and wants him to succeed. That side of me says ugh, what a political nightmare that would be—there goes health care, etc., and is it really worth it?
As a general matter, while I hope that the push toward effective enforcement of international criminal law will continue and believe that domestic courts should be the front-line enforcers, I’m not really a supporter of the idea of imposing on states an absolute obligation to prosecute past international crimes. In some situations, there may be really compelling reasons not to do so. Not every society is the same; sometimes victims of international crimes would rather have peace than justice, for instance, and it is facile to suggest that the two always go hand in hand. Amnesties can sometimes help to bring an end to wars. Fragile new governments could be destabilized by an attempt to target former leaders, exposing citizens to renewed atrocities. My gut “ugh” reaction to the idea of prosecutions in the U.S. gives me renewed appreciation of the difficult dilemmas faced by transitional governments who are trying to do the best they can for their people.
When it comes to our dilemma, though, I don’t think “ugh” is ultimately a compelling argument. The United States is not a struggling transitional state, nor a war-torn nation trying to broker a peace deal with rebels. We have not experienced an overthrow of a regime, but a peaceful change of administration. Obama is the popular president of the world’s richest and most powerful nation and its oldest democracy. Taking on a few controversial prosecutions will not rend our Union–indeed, most Americans oppose torture and it is certainly possible that a criminal process (or at least a serious criminal investigation), carried out fairly and targeting those most responsible, might strengthen that consensus. And while the President is right that the country faces great challenges at this time, I think that in one important way pursuing these cases might help us to meet those challenges. The rest of the world cares about this stuff, and we need to earn back the trust of the rest of the world. We have made an unambiguous treaty commitment, and Obama ran for president in part on a promise to do his best to restore U.S. moral standing in the world by taking our international legal commitments seriously. I have to swallow hard saying it, but I would like to see that promise filled.