Should the Torturers Go on Trial?

The impending end of the Bush administration and the inauguration of Barack Obama, expected to repudiate the illegalities and human-rights abuses of his predecessor, pose the enormous and explosive question of what to do about those responsible for what are regarded by a significant part of the public in the Western democracies, not to speak of the United States, as war crimes.

Obama signifies a new start in the United States, and an opportunity for renewal and rendering justice. But new starts do not wipe the slate of history, as has become clear in recent years by the proliferation of memorials and ceremonies intended as apologies for histories of crimes and persecutions that can never be undone. A new American administration’s new start means a new structure of legislation to augment and correct what already has been done and to change the norms of public life.

In today’s case, a fundamental distinction must be drawn between political and foreign-policy issues up for debate in national elections, and now before the Obama government, and the Bush record of acts of international illegality, including what generally are thought to be war crimes, such as torture. There will be no war-crimes trial for George W. Bush or Richard Cheney. There will be investigations into many aspects of the two Bush terms.

These inevitably will from the start be turned into political battles between Democrats and Republicans, obscuring all else on the national scene short of military catastrophe (unfortunately, not entirely unlikely in 2009).

In a thoughtful examination of the war crimes issue in the Jan. 15 New York Review, David Cole of the Georgetown University Law Center concludes that for national foreclosure, there has to be a formal accounting and determination of responsibility for the criminal policies of the Bush government, made by an independent and bipartisan blue-ribbon commission, possessing subpoena power, security clearance and access to all requested documents. This commission should be mandated by the president or Congress (or both).

This is highly to be desired, but in my opinion impossible. It would be prevented, undermined or discredited by partisan pressures.

There will be many NGO and activist-group demands for trials.

There may well be indictments of individual Bush administration officials by foreign courts, acting on the principle of “universal jurisdiction” and the Gen. Pinochet precedent. This already has happened in Italy (in absentia) in the case of a number of named CIA agents, charged with the kidnapping and torture of a Muslim radical resident there.

These agents will not be handed over by Washington, and no foreign government is likely to try to enforce such a conviction, although the more notorious figures of the Bush administration would do well to be cautious in their holiday travels.

On the other hand, I would think both the good sense of the new administration, and the American popular sense of justice, would preclude any further throwing of ordinary soldiers to prosecutorial wolves, as in the ignoble case of the West Virginia reservists tried in the Abu Ghraib affair, made to take the rap for the highest officials in the American government — a disgusting and dishonorable affair.

So what can be done? There are two purposes to be served.

The first is to hold those responsible for war crimes to account, which I think unlikely (at least in this American political generation). Their punishment will have to be left to the historians (or perhaps to a future American Dante, capable of recreating Guantanamo as an Inferno for American politicians).

The second purpose that must be served is deterrence. On that, I have a proposal.

The most effective way to prevent future war crimes is not to threaten elected leaders with punishment that probably will not be imposed. It is to convince civilian and military officials at all levels of government that if they commit or participate in war crimes, as clearly defined in international law and the Uniform Code of Military Justice, even under orders of their superiors, the serious possibility will exist that (in another administration?) they will be appropriately punished.

I would have President Obama solemnly recall to the members of the military services, and all other agencies of government, that acts violating the principles internationally agreed as a result of the Nuremberg Tribunal in 1945-1946, and acts proscribed in the Geneva Conventions and the U.S. Universal Code of Military Justice, are war crimes, and orders by senior officers to commit these acts are illegal orders.

Obviously, few individual soldiers, officers or officials will find themselves in a position to defy such illegal orders. But if they do not formally decline such orders, or fail to voice their protest when being compelled under duress to execute those orders, they should understand that this may eventually result in their trial. The punishment may be severe, or at a minimum their offense will be noted in their career personnel records, effectively terminating their professional careers in government.

One cannot multiply heroes. One can discourage a great many people in all ranks of government from condoning, acquiescing in, or joining torture teams, or otherwise accepting duty or condoning policies likely at worst to put them in prison, or at least end their careers.

I would at the same time have President Obama announce presidential honors for the military lawyers and CIA or Justice Department officials who defied or protested the illegal policies and actions of the Bush government.

William Pfaff’s Web site is www.williampfaff.com.