Friday, November 26, 2010

Torture and transitional justice

How should governments handle criminal acts committed by their predecessors? Over the past two decades, the academic study of transitional justice has been a growth area.

In the early 1990s, post-Communist East European governments deliberated on whether old security archives ought to be opened, and what punishment ought to be meted out to functionaries in the old regimes. Only a few years later, South Africa created its Truth and Reconciliation Commission, inspired by Desmond Tutu's fervent belief in the possibility of finding out the truth and achieving reconciliation regarding the crimes of apartheid. Around the same time, the wars in the former Yugoslavia led to the rebirth of Nuremberg-style tribunals: first the International Criminal Tribunal for the former Yugoslavia, then a tribunal for the genocide in Rwanda, and finally the International Criminal Court.

One of the intriguing features of transitional justice is the pervasiveness of "gut instincts" and assumptions with virtually no empirical verification (David Mendeloff published an excellent paper on this issue in 2004 [gated]). Just a few examples:
• Finding out the truth promotes (or is even a prerequisite for) reconciliation
(How do we know? What if it reopens old wounds and a desire for vengeance?)
• Prosecuting former high-ranking officials will lead to political instability
(Why? Maybe even their alleged political allies will be happy to see them removed from the scene)
• International tribunals are less likely to be biased than national tribunals
(Why? Bias probably depends more on how the tribunal is set up than on who pays the bills)

The literature has concentrated on countries subject to serious political instability, but of course the same issues arise in stable political systems as well. A striking example is Obama's handling of the Bush administration's torture of alleged terrorist suspects. Obama's position, announced most clearly in a television interview with George Stephanopoulos in January 2009 (transcript here), is that "we need to look forward as opposed to looking backwards"

The result, as we know, is that Obama has quite systematically avoided holding anyone in the Bush administration accountable for the torture policies. This raises the obvious question: Based on what assumptions did Obama think this was the right approach to take?

The Stephanopoulos interview suggests three key assumptions:
1. "When it comes to national security," it is necessary to make a choice between "getting things right in the future" and "looking at what we got wrong in the past" — they cannot be pursued at the same time.
2. If CIA employees feel as though they need to look over their shoulders and look for legal protection in deciding how "to keep Americans safe", their effectiveness will be reduced.
3. Not pursuing past injustice has no bearing on (or implications for) the future pursuit of justice. In other words, impunity and lack of accountability at the highest level are not a problem.

To my knowledge, we have no empirical evidence that any of those 3 assumptions are justified, and in fact there is reason to doubt that any are. Perhaps in an unstable political context, with tenuous rule of law and not much state capacity, the first assumption might be reasonable. But in the United States? That does not suggest much faith in the capacity of the American government. Indeed, as David Cole points out in a recent New York Review of Books blog post, the United Kingdom and Canada seem to be able to pursue both goals at the same time just fine, without overtaxing their system.

On the second assumption, there is no evidence that the CIA has been able to do its job better since being allowed to torture, nor does it appear to have been difficult prior to the Bush administration to place legal limits on what the CIA was allowed to do with (and to) suspects.

On the third assumption, finally, Cole notes that "the fact that we tortured and did nothing about it will periodically raise its head—in a failed prosecution, a foreign court judgment, or a terrorist incident inspired by images from Abu Ghraib."

It is often noted that Obama is more inclined to reflect and weigh options prior to making policy decisions than was his predecessor. It is disappointing, therefore, that on this crucial issue his decision seems to have been based on the kind of unexamined "gut instincts" Bush has become notorious for (and, according to his memoirs, quite proud of).

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