Whether To Prosecute for Torture?

Broadcast on WAMC Northeast Report, Tuesday, April 28, 2009

There is an effort to press the Obama Administration to prosecute those responsible for torture and it is gaining steam among many of us who have been outraged by the former Administration’s sanction for torture. I have no doubt that their behavior was unconstitutional and violated many statutes. As a purely legal matter I am convinced that high up in the ranks of the Bush Administration there were a number of guilty parties who deserve prosecution and stiff penalties for their misbehavior.

But I have many doubts about whether they should be prosecuted based on what may be the likely outcome of prosecution. One strand in the conservative movement has been based on toughness. For them, the primary goal of the criminal law has been retribution. Prosecution would come straight out of their theory.

Those of us in opposition have a very different notion of social learning. We don’t buy their shoot or punish approach to all problems. Our question is what will come of prosecution and how we can create a better society. We remember that putting a few members of the Nixon Administration in prison did not end dirty tricks. Impeachment of another president for his sexual behavior didn’t mark the end of sexual misbehavior.

Many of us like to say we are a peaceful country. That makes us feel good but it is not true. We didn’t conquer the territory from coast to coast peacefully. We took it by force from England, Spain, Mexico and the Indians.

We’re a divided nation now. For the toughs masquerading as conservatives, being gentle with adversaries just seems wimpish and unrealistic. They don’t believe in soft power and they are hostile to the claim. Their response to the revelations of misbehavior is not contrition but threats about what they and their supporters will do to paralyze the political system if we dare prosecute. As things stand, the perpetrators of torture and their apologists will just figure on getting even whenever they can find their way back into power. And nothing will be learned or gained.

Prosecution works best when society is united and perpetrators can be led to understand and own up to their misbehavior. Otherwise it makes martyrs and anger. I don’t think we’re there yet.

Hearings or a truth commission with a broad mandate to expose what happened could be helpful. Congress will have to be involved because the media do not stick long to issues that don’t involve the lawmakers themselves. Hearings could deal with false imprisonment, “extraordinary rendition”, and other high level misbehavior.

Could prosecution work? Perhaps if the punishment fit the crimes – fines and community service devoted to humanitarian work – and if any lenience depended on clear and convincing evidence of contrition.

Most important is to shame the perpetrators of such un-American behavior. Indeed, the wrong that calls itself the Right described as un-American, or “pinko”, many in our parents’ and grandparents’ generations who cared about others than just themselves, and they still label “socialist” anyone and everyone who wants to show concern for our fellow man. Our job is to make clear that they should be ashamed of themselves. They are “un-American”. And yes some enterprising entrepreneurs should make a buck publishing accurate lists for everyone to know who we are dealing with and what they did. Once that point is made, further punishment and prosecution may be unnecessary.

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