Yesterday's 3 posts had such an interesting and cleverly embedded thread running through them that I'd like to review them today.► First, Ruth Bader Ginsburg (right) is quoted as saying:
'What happened in Europe was the Holocaust, and people came to see that popularly elected representatives could not always be trusted to preserve the system's most basic values.'
► Second, "Those Memos"; and
► Third, news of John Demjanjuk (below left, at his trial in Jerusalem in 1988) accused of commiting war crimes in Poland during World War II.
If you click on the link to President Obama's explanation of why he released "those memos," you read,
'I prohibited the use of these interrogation techniques by the United States because they undermine our moral authority and do not make us safer.'
I am troubled by this reasoning: it implicitly admits that the techniques constitute torture, but studiously avoids the issue of torture's illegality in both domestic and international law.
I am further troubled to read:
'[a] democracy as resilient as ours must reject the false choice between our security and our ideals,'
yet
'[t]his is a time for reflection, not retribution .... We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past.'
Is it true that "a democracy as resilient as ours" could not survive the "disunity" that might be worsened by prosecuting those responsible for torture? We certainly didn't worry about any negative effects on German or Japanese unity that might have come from denying foot soldiers the defense that they merely "carried out their duties relying in good faith" on their superiors. Yet intelligence officers may rest assured that they may indeed rely on their anonymity and the defense of superior orders.Perhaps even more troubling is the juxtaposition of Obama's assertion that the interrogation techniques described in the memos "do not make us safer" with his offer of immunity to the "unsung" "men and women of our intelligence community [who] serve[d] courageously": "because of their sacrifices, every single American is safer." ??!!##??!! What were they sacrificing as they tortured people, other than their/our ideals, law, the dignity of their victims and their own humanity?
So by releasing "those memos," Obama is reminding us, in Bader Ginsburg's words, that popularly elected representatives can not always be trusted to preserve the system's most basic values. At the same time, by not prosecuting our own Demjanjuks, he is reminding us that popularly elected representatives can not always be trusted to preserve the system's most basic values. Worse, he is admitting defeat in the struggle to balance our security and our ideals. In short, he is saying that this sort of thing has always and will always happen.
So much for that "Never Again" badge I wore in high school.
Then I thought some more about this "disunity" business.
Maybe Obama thinks that prosecuting Americans for international crimes such as torture and war crimes would increase anti-international law and anti-International Criminal Court sentiment among Americans, and he's hoping to increase support for "internationalism" by not prosecuting. But this could be avoided by prosecuting under domestic statutes. So maybe he thinks that we
should only prosecute foreign torturers and war criminals, like the Nazis and Japanese.Then it hit me: candidate Obama heard from the Center for Constitutional Rights (CCR) with respect to Guantánamo.
He may be aware that CCR's case against former Defense Secretary Donald Rumsfeld was dismissed because the German prosecutor saw no reason to believe that Rumsfeld would escape justice in the United States. By announcing in the press that he will not prosecute, Obama has just given the green light (image credit) to the German prosecutor and any other foreign or international court that might be willing and able to do prosecute any Americans responsible for torture at least between September 11, 2001 and January 20, 2009: the United States is, in the words of the ICC Statute (art. 17), "unwilling . . . genuinely to carry out the ... prosecution." And since the Supreme Court still supports the Ker-Frisbie doctrine (illegal capture does not make prosecution illegal), William Schabas's April Fool's post is no joke after all.
Of course, it just might be that U.S. prosecution of those responsible for torture and other violations of human rights during the previous administration's "war on terror" might help end that "war" by providing justice to some of its victims and thereby contribute to undoing some of the harm that has been done. That might really protect Americans' safety and help the nation turn the page and get on with rebuilding unity, the economy, the educational system, health care, social welfare, etc.
