In the face of overwhelming evidence that numerous US detainees were tortured during the Bush years, President Barack Obama has famously said he wants to “look forward, not back.” He prohibited the use of torture and cruelty in one of his first executive acts, but since then he has consistently resisted all efforts to hold accountable those who, under the prior administration, authorized such mistreatment. He has opposed a commission of inquiry, failed to order a criminal investigation of high-level officials who authorized—and concocted legal justifications for—torture, and successfully defeated all suits seeking damages for victims. Unacknowledged guilt, however, has a stubborn way of sticking around. In recent days, torture has been back in the national conversation, raising once again the issue of what we (and others) should do about it.
To be honest, I expected this kind of legal assault after Obama’s inauguration. The plusses are as follows:
- It would have appealed to his base, and Cole’s article is an example of this.
- It would have filled the cable news time with the sins of his opponents, giving him cover to do many other things he would like to do.
- It would have lessened his dependence upon Congress to further his agenda, which is the main source of the disaster of the 2010 election cycle.
- It would have criminialised his opponents, which would make perpetuation of his legacy much easier.
But he hasn’t, and I think the reasons for this are as follows:
- Using international law to criminalise opponents would have the long run effect of undercutting American autonomy and thus the power of the American state, which could backfire in future situations. This is why the left, for all of its ostensible internationalism, is reluctant to “cross the Rubicon” on this; diluting the power of the American state dilutes their own power as well.
- Going after torturers would make the use of torture yourself problematic. And, for all of their moralism on the subject, I still think the left will someday use torture on their political opponents, given the opportunity and perceived need. You just don’t get as self-righteous as they are on the left and then turn around and restrain yourself when you have your opponents where you want them. A quick look back at the history of leftist states will confirm this.
- Prosecutions under American law would be long and complicated and, with the complex rules of evidence and procedure we have, have an unpredictable result short of suspending the Constitution. That’s the key lesson of the outcome of the Ghailani trial, which is why the Guantanamo detention facility exists and why the Obama Administration hasn’t gotten around to closing it.
- He would need a stronger AG than Eric Holder to carry such a programme out. To some extent this is a result of the reticence from (1) and (2).
If the left plans to put away their opposition via the use of war crimes trials, they’re going to need a lot more nerve at the top–and elsewhere–than they’ve got now.