Saturday, January 24, 2009

Torture prosecutions

The "conventional wisdom" seems to be that prosecutions for torture are unlikely, but I think the CW is misplaced.

First of all, there's no statute of limitations for war crimes, so it's presumptuous to assume that the political situation 10 or 20 years from now won't allow for it. Just ask Pinochet.

Speaking of Pinochet, there's also the fact that war crimes are universal jurisdiction crimes, so there's always the possibility of the prosecution in a foreign court. Still, here I am talking about US prosecutions.

Despite his talk about "moving on" and "looking forward: I don't think there's any indication that Obama has ruled out prosecutions down the road. He's a skilled politician, though, and I think he recognizes that he can (indeed must) let the case build for prosecutions over time. He has some very pressing issues that must be dealt with NOW and getting bogged down in legal action that will unavoidably take years to resolve is, frankly, stupid. Better to let the pressure build slowly.

Factors that will build the pressure will include finding out more about what, exactly, was done. Shining a bright light on the prior practices and who authorized them will help build pressure to act. As a matter of fact, under the relevant treaties and laws the government will HAVE to act eventually, and at least open investigations. Given what we already know, investigations seem likely to lead to charges and charges will necessarily lead to trials. Whether they lead to convictions is hard to say, but people have been convicted for less.

What Obama had to do now on the torture and related executive abuses is ensure that they STOP immediately and that there be a complete repudiation of the Bush approach. His executive orders and appointments both achieve that aim. There has been some quibbling from the ACLU and some outer human rights advocates that Obama left him some "wriggle room" here and there. It's their job to raise these kinds of flags, but I put little stock in them. Keeping some third way of dealing with Gitmo detainees besides the regular courts and UCMJ available is simple political prudence. Despite the appalling incompetence of the Bush people, it's probably that at least some of the remaining detainees at Gitmo are actual, bona fide dangerous terrorists that can't be released safely. Unfortunately, because of Bush policies, they probably can't be prosecuted now because of torture and abuse. So some process that keeps them detained will have to be found.

Obama has clearly laid out that openness, rule of law and humane treatment are the default values whenever in doubt. This is the opposite approach from Bush, of course, but what it means is that as it percolates down the chain to the lowest levels that things will change in a concrete way. Just as Rumsfeld's decisions led directly to Lynndie England's actions, so will Obama's lead to changes It all starts at the top.


Anonymous said...

I see your point about letting the demand for trials build over time,but I think it is so unfair that the little grunts, especially Lynndie England, actually were the scapegoats for this administration. Now that the SFASC has found that:Conclusion 19: The abuse of detainees at Abu Ghraib in late 2003 was not simply the result of a few soldiers acting on their own. Interrogation techniques such as stripping detainees of their clothes, placing them in stress positions, and using military working dogs to intimidate them appeared in Iraq only after they had been approved for use in Afghanistan and at GTMO. Secretary of Defense Donald Rumsfeld’s December 2, 2002 authorization of aggressive interrogation techniques and subsequent interrogation policies and plans approved by senior military and civilian officials conveyed the message that physical pressures and degradation were appropriate treatment for detainees in U.S. military custody. What followed was an erosion in standards dictating that detainees be treated humanely.

Why hasn't she had all charges against her dropped, her dishonorable discharge revoked, and some compensation given to her for spending time in jail and being unable to find employment due to her felon status? I don't understand, she has to live in poverty while Cheney and Rumsfeld get to retire in comfort. I hope someone will help her write a book, and someone will publish it. Her story is unbelievable, and can happen to any us. She wasn't a guard, just a clerk who was in love with the wrong man, and stepped into those pictures (which, in fact, simple detailed what Cheney and Bush deemed legal procedure). So, what was her crime - being in pictures? She didn't even touch any of those people.

Seth Owen said...

While I don't excuse the conduct of Ebgland and Graner in any way, the failure to hold anyone else in the chain of command has always been inexplicable to me.

Where was the platoon sergeant? Where was the platopon leader? Where was the company commander, the operations officer and base commander when all this was going on?

The larger point, however, is even more valid. Her defense argued at the time that the conduct was authorized and she should not have been punished. I agree that her conviction and punishment should be re-examined.

You're right in one sense, though. Her real crime was being in the pictures. Can there be any doubt that it only became a scandal because of the photos?

Katrina said...

I you were an officer. You may want to check out my blog about Lynndie here:

I ask this question. If her only crime was taking/being in pictures in an unauthorized area, is that a bad enough crime to be court-martialed, sent to the brig for three years, and a dishonorable discharge? I went to high school with a guy who was a West Point grad, in the Rangers - then got hooked on cocaine in Panama, and punched his commanding officer in the face. He wasn't court-martialed - no brig time - just kicked out with a bad conduct.

Lynndie touched NO ONE. She tortured NO ONE. She was a young woman of 20 when those pictures started, while Graner was 34 and should have known better. She was inlove with the wrong man and in the wrong place at the wrong time.

There is so much more to this story than the public knows - check out my blog. It makes me think that they world public would prefer to see Lynndie as a cartoon figure.....when will the real war criminals such as Rumsfeld, Cheney, Bush, and the COC above Janis Karpinski be arrested, charged, and tried for war crimes?

Anonymous said...

Copy and paste this into your browser to hear Lynndie's interview with BBC this past Wednesday, Feb. 4, 2009

Slate - Encyclopedia Baracktannica