Moving Beyond Politics to Accountability on US Torture Program

January 11, 2009: January 11, 2009: “Who Would Jesus Torture?” sign at the International Day to Shut Down Guantanamo Bay, Supreme Court (Washington, DC). (Photo: takomabibelot)

Will the United States do what it demands of other nations, and hold its own government officials accountable for torture, or will it parrot authoritarian regimes as it invokes national security as a blanket excuse for crimes against humanity?

Despite official government denials, the US civil rights community has known for years that our government engaged in tactics that crossed legal and moral lines in the so-called war on terror. The Senate Intelligence Committee’s 6,000-page report finding that the CIA systematically engaged in waterboarding, rectal rape called “feedings” and other acts of torture finally puts the factual disputes to rest.

The question still remains, however, how our nation will respond to these facts. Will we do what we demand of other nations, and hold our government officials accountable, or will we parrot authoritarian regimes as we invoke national security as a blanket excuse? The answer will determine the true character of our nation.

President Obama has made clear that he wants to focus on the future rather than be engrossed in the past, and thus has shied away from prosecuting high-level government officials. But without some formal accountability process – whether prosecutions, pardons or a truth and reconciliation mechanism – a dangerous precedent will be set for prospective state-sponsored torture.

For over five years, the US government sponsored, funded and directly engaged in torture while lying to the American people. In our name, US high-level officials sent people to dungeons in Egypt, Algeria and Yemen to be brutally tortured and sometimes killed. Worse yet, attorneys at the Department of Justice gave US torturers legal cover through opinions that distorted beyond recognition the laws against torture to produce the desired outcome. Likewise, psychologists betrayed their professional oaths as they rubber-stamped the torture program and shielded those who engineered it from liability. Thus, future administrations may point to this program as grounds for the same depraved responses to national emergencies.

Although criminal prosecution is the most common form of accountability, it may fall short because many of the claims have passed the eight-year statute of limitations. Therefore, a combination of mechanisms should be considered. A truth and reconciliation process, for instance, offers procedural justice to the individual victims while allowing our nation to come to terms with this stain in our history. Victims will be granted the opportunity to testify to the horrors they experienced so that future generations will have no doubts that torture is an evil that has no place in our society. Witnesses and experts can also testify on how torture was an ineffective tool in keeping Americans safer.

For those whom prosecution is impractical, presidential pardons of high-level government officials and officers may be an option in exchange for their public admissions of wrongdoing during a truth and reconciliation process. While pardoning torturers is abhorrent, the stigmatization that comes from a public admission can have the same, if not stronger, deterrent effect as a conviction.

Ideally, any accountability measures would be led by Republicans; they have every reason to be as concerned as Democrats about preserving the rule of law and our standing in the international community. An accountability process led by a Democratic administration of its predecessor Republican administration risks diverting the focus from deterring future torture to a bipartisan fracas viewed as a criminalization of politics. It may also set the stage for a dangerous precedent wherein the office of the presidency is abused to punish political opponents of past administrations.

In the end, the US government has an obligation to employ all mechanisms available to definitively condemn torture as illegal and immoral. Future administrations should not be allowed to rely on the post-9/11 era to justify future torture programs.

We cannot change the past, but we can control the present. A formal and public accountability process allows us to move forward knowing that we did all we could to prevent future generations from repeating the mistakes of the past. Anything less makes us no better than the authoritarian regimes we denounce.