Is prosecuting Bush an option? – A conflict resolution perspective on truth and justice

When Barack Obama’s support platform “Change.Gov” asked supporters to submit queries to the new administration, the most popular question turned out to be whether Obama would appoint a special prosecutor to “independently investigate the gravest crimes of the Bush administration, including torture and warrantless wiretapping.” Obama’s team ignored answering the question. Obama himself, being forced to respond during a TV interview, said he would rather move forward than look back.

Dealing with the past

It seems widely accepted today that the Bush administration systematically committed war crimes in the “war against terrorism”. “Extraordinary renditions”, the Guantanamo prison, or authorised “enhanced interrogation techniques” speak clearly.

This leads to a wider question: if such an investigation was to find evidence of systematic war crimes, would it makes sense to convict the political leaders responsible? There is a vast amount of information available in the field of peace research on how to deal with crimes committed by states, and on how to best achieve justice and reconciliation concerning human rights abuses by past political regimes. From cases such as post-communist states, authoritarian regimes in Latin America or Europe after WWII, historical patterns have been identified and comparisons have been drawn that may help the US administration to decide whether or not to investigate or even to punish former government officials.

To punish or to pardon?

Many of the 76,000 people who voted for an investigation into war crimes by the Bush administration to be Obama’s top priority were likely guided by a feeling revenge. I can’t say that I don’t feel the same way. After seeing the videos I linked to above, it is hard not to have a sickening feeling. Yet, emotions of this kind aren’t always the best guiding principles for political action.

There are two key questions when addressing state crimes. One is the question of acknowledgement: should past crimes be addressed, or should they rather be swept under the rug for the sake of “moving forward”, as Obama would put it. The second question is the one of accountability: Should sanctions be imposed on perpetrators or not? Here, too, the principle of looking backward or looking forward comes into play, because there is always some trade-off between justice and reconciliation.

Sending Bush and Cheney to prison?

There are some good reasons to punish political leaders if their personal responsibility can be attested. The central one is that it allows for a morally just order to be established. If respect for human rights and the rule of law are basic tenets of a society (as any US American would be eager to assert), then violations against these principles should be punished. A second reason is that punishment for state crimes stands symbolically for a change of regime. Obama based his message of “change” on being different from the Bush regime. A prosecution of Bush’s crimes would consolidate the trust people in the US and internationally have in the new government to embody a genuine break with the past.

It is questionable, however, if the “ghosts of the past” can really be chased away by means of retributive justice. As Raoul Alfonsin, first Argentinian president after the military regime, said: “In the first analysis, punishment is one instrument, but not the sole or even the most important one, for forming the collective moral conscience.” One important element in this is an independent judiciary. Who, after all, will have to sentence former leaders? It can be stated that the democratic principle of the separation of powers suffers when courts are used for political decision-making (and political it would be, considering that Bush has represented one of the two main parties in the US). Seen from that angle, also special prosecutors with the task to “independently investigate” easily become instruments of partisan vengeance.

Generally, punishment is not always a productive or functional way of solving social conflicts, even when justice would require punishment. Where civil society is fractured and divided between supporters of the previous regime and supporters of the new regime, “tolerace” might achieve more for human rights in the long run than further divisiveness. In the US case, Republicans could see it as an attack on their own conservative beliefs. In the worst case, former Bush voters – as well as bureaucrats and other officials – would feel alienated, creating the grounds for a destabilising backlash against the new administration.

The process of collective amnesia

What would an alternative be? Simply moving on? There have been many cases of state crimes where that happened, Spain being one of them (though it may be argued that the collective trauma in Spain after Franco can’t be compared to the US after Bush). For societies with past atrocities, amnesia is a tempting and psychologically almost normal reaction. On a collective level, this may happen unconsciously, like in Spain. But denial may also take an organised form whereby state institutions attempt to rewrite history. The Turkish atrocities against the Armenians are a powerful example of this.

Criminologist Stanley Cohen has identified a pattern of how governments react to allegations of human rights violations. The reactions normally have three elements: 1. Nothing happened (“We did not not torture”). 2. Something happened but it was no human rights violation (“It’s not torture”). 3. What happened was for the morally good (“We saved peoples’ lives with this”). Knowing that, it is worth lhaving another look at the interview with former CIA director Tenet.

To look forward, know about your past

Now there’s a problem with this kind of amnesia, which those who want to reconcile – like Obama – need to have in mind. Without truth-telling, there can’t be reconciliation. It is impossible to achieve reconciliation if parts of society refuse to acknowledge that there was ever anything wrong. Truth is a value in itself that would justify conscious dealing with the past, but there are other reason for this. They have to do with the victims, deterrence and the rebuilding of political structures that facilitated torture, and deterrence for potential perpetrators in the future.

New Yorker’s Lawrence Weschler has argued that torture victims’ demand for truth is usually greater than their demand for justice and punishment. This is mainly due to the “double problem” of torture victims: They are accused of being liars those by who do not want to acknowledge that torture happened (e.g. officials like Tenet). Thereby, their dignity is taken a second time after they have survived torture. Only by acknowledging victims’ suffering they have the chance to regain their dignity. Recognition creates a more positive identity for them: They cease to be victims and now become survivors.

Rebuilding political structures

Truth-telling is a key act of prevention as it may weaken potential support for any future repetition of abuses like torture. Imagine a commission set up by the new US administration to investigate war crimes and human rights abuses. If it described  in detail that atrocities were committed, who was responsible, and that universal principles were breached, then those who did support the Bush regime would likely feel a collective shame. It would make it harder to push an agenda of torture in the foreseeable future. This process would need to include a wider discussion and “moral cleansing” within society, where acts of torture will become clearly outlawed and not secretly tolerated or even admired, e.g. in pop culture.

There is also a need for a more immediate look at structures that facilitated torture. Regimes of torture develop laws, bureaucracy, language, rituals and justification. These structures need to be rebuilt, people involved need to be re-educated. Within the military and the bureaucracy, limits of obedience and the duty to intervene must be established. Social conditions under which crimes of obedience were possible need to be identified and reversed. Truth-telling is integral to mobilise the resources and the political will for this difficult task.

Striking the balance between justice and political prudence

Everyone can agree that crimes should not go unpunished. Still, as I have pointed out, sometimes there are good reasons for not punishing state crimes. The fundamental question is whether a criminal trial is the right legal strategy in the political realm? Here, arguments that warn the state not to ignore its moral principles and issue a blank cheque to future leaders stand against those that caution new regimes not to alienate supporters of the old regime and drive a wedge through society.

This does not mean though that “moving forward” is the right strategy. Dealing with the past is necessary to de-victimise former torture victims, to deter, and to rebuild structures that facilitate torture. The new US administration would be well advised to look into previous crimes in order to make a credible break from the past and make sure that the US will not descent into torture in the future.

The case of the US differs from all previous examples of state crimes in one respect. Here, human rights abuses did not happen within a society. Bush had built up a global system of torture where victims were not US citizens, and “extraordinary” renditions made use of global power to make other countries comply with these policies. Amnesia is tempting for US Americans because victims are far away and not part of their own society; but it’s a prerequisite for renewing American diplomacy. A public investigation into the Bush administration’s war crimes would be the first case of a global process of truth-telling.

For more information see:

The US Institute of Peace
The Project on Justice in Times of Transition
“Transitional Justice” by N. Kritz
“State Crimes of Previous Regimes” by S. Cohen (in Law and Social Inquiry)
“A Miracle, a Universe” by L. Weschler