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.