Criminal Justice and American Crimes of Torture

This week Obama took the bold step of releasing legal memos from the Bush administration that advocated torture, that is physical and psychological pain as techniques of interrogation. When he released this information he also was clear that his administration would not prosecute anyone acting on the advice of these memos. And he would defend anyone prosecuted for such crimes. He is arguing that we need to go forward rather than looking backwards.

Most astute civil rights defenders are arguing that to go forward we must first address the crimes of the past. If we don't do that it is argued that a de facto precedent is set supporting the legitimacy of of these torture techniques. In light of present legal principals I would have to agree. international law is clear that acting on orders from a superior does not absolve an individual of guilt. I'm no lawyer but by my understanding, if individuals who were involved in torture are not investigated and brought to trial in the context of the American system of justice, then it seems that the US is condoning their actions.

Now we get to the question of the American judicial system. There are 3 arguments in favor of incarceration, Punishment for punishment sake, Punishment as deterrent, and protection and prevention. Punishment for punishment sake is of course the mind set of the torturer, we don't want to recapitulate that mentality. The general evidence from criminal justice research is that deterrence does not happen. This is true for run of the mill criminals, maybe for those involved in crimes of the state deterrence works better. I'm open to that possibility , but I don't think we have evidence to support that. Finally prevention stands as the only potential legitimate rational for incarceration. Certainly we saw many of the political criminals of the Iran Contra scandal reemerge in the second Bush administration. Perhaps the world would have been safer if they'd been thrown in jail for life. Since a president might pardon anyone convicted of torture incarceration does not guaranty prevention from future crimes.

There are two other approaches to justice, rehabilitation, and restorative justice. Certainly a clear articulation from the present administration can do much to rehabilitate those who were acting on the Bush administration memos. Their crime was the torture techniques, but they were following orders, something we assume they will continue to do. Finally this brings us to restorative justice, in restorative justice the parties involved work together to identify ways that justice can be restored. Restorative justice at the political level might follow the model from South Africa's Truth and Reconciliation Commission.

Of those approaches and options regarding justice I suppose I favor truth and reconciliation. But if Obama wants to focus on the future and forget past acts, perhaps this principal can be applied to the vast number of people now behind bars. Nowhere does this make more sense than for the thousands incarcerated for non-violent drug crimes. For my part I'd like to see it applied to my friend who was recently sentenced to 22 years for acts of eco-sabotage done nearly 10 years ago.

What ever I think or Obama thinks, the responsibility of perusing and prosecuting the Bush approved torture rests with Eric Holder. Mr Holder is obliged to act regardless of what president Obama wants. Time will tell if he does.

Supporting the Obama Agenda in questioning recent Obama administration actions.

Let’s assume that presidential candidate Obama was sincere when he spoke out against the violations of habious corpus at Guantanamo and rendition of individuals to secret prisons. Obama has also been outspoken in favor of transparency. Obama’s agenda represents the political refutation of the excesses of the Bush administration.

I’m glad that President Obama has issued orders to close the Guantanamo prison and the secret, so called black sites. Obama has taken action on transparency for instance issuing orders that FOI request be responded to with as little information withheld as possible.

Recently some positions taken by the Obama administration seem to go against habious corpus and transparency. First is the issue of the Bagram prison in Afganistan. Apparently the administration is now arguing that prisoners can be taken from other countries to Bagram, and be kept there indefinitely without due process. This is a continuation of the Bush Administrations position. A judge has ruled that the same rules that apply to Guantanamo apply to Bagram. Another point of concern is the Obama Department of Justice invoking state secrets and even creating a new term “sovereign immunity” in a case of illegal spying from the Bush Administration. Sovereign immunity virtually dismantles judicial checks on spying from the executive branch. The State Secrets Protection Act, legislation originally written by Clinton and Biden in response to Bush’s evoking of state secrets, has been reintroduced by Senators Russ Feingold, Ted Kennedy, and Pat Leahy.

No doubt the Obama agenda as articulated during his campaign is being challenged by the politics of the office of the presidency. I would like to have a greater insight into the pressures that push the administration away from the agenda. In the meantime supporting the State Secrets Protection Act is something we can do to support the original Obama agenda.

Words I never thought I'd hear

"We can't reduce the threat of a nuclear weapon going off unless those that possess the most nuclear weapons, the United States and Russia, take serious steps to reduce our stockpiles," These are words I never thought I'd hear from a sitting American President. Sure I never thought I'd see a non-white president, but lets judge people by the content of their character not the color of their skin. Yes, I still oppose Obama's troop build up in Afghanistan. One has to take into account that this speech was really aimed at mobilizing world leaders against North Korea. And any politicians words are only as good as the actions they translate into. But even if he wasn't serious about cutting nuclear arms by one third in the next year and eventually eliminating all nuclear weapons, the notion that we would not have a double standard regarding nuclear weapons and military threat is unimaginable up to now in US foreign policy.

I think that we in the peace movement should have a celebration over this initiative.