Friday, April 24, 2009

Making the Case for Retributive Justice for High-ranking Officers Guilty of Torture

Torture at Abu Ghraib, Iraq

Dr. Sharon Tan’s interpretation of retributive justice in her recently published book The Reconciliation of Classes and Races fits well with Paul Krugman’s op-ed in the NY Times this Thursday titled Reclaiming America’s Soul.

Although Dr. Tan is not speaking specifically about the Bush Administration, both she and Krugman address the necessity for prosecuting the perpetrators of the crime of torture even though the crime occurred in the previous regime or administration.

Associate Professor of Christian Ethics at United Theological Seminary of the Twin Cites, Dr. Tan holds both a Doctor of Philosophy in Religion from Emory University and her Juris Doctor from the Emory University School of Law. Dr. Tan writes (emphases mine):

Thus, retributive criminal prosecution is appropriate within the context of societal reconciliation for high-ranking officers that have committed gross violations of human rights…Gross abuses of human rights include genocide, arbitrary, summary or extra judicial executions, forced or involuntary disappearance, torture or other gross physical abuses, prolonged arbitrary deprivation of liberty. As the underlying purpose of retributive justice is to declare that a moral wrong has been committed that society cannot tolerate, it is especially appropriate with gross abuses of human rights committed in the name of the state. As there purportedly can be no cultural excuse for such violations, committed in the name of society, it is appropriate for society to declare its stance otherwise by prosecution.

In fact, there is substantial and growing international law that requires the prosecution of those who committed gross violations of human rights. There has been increasing use of international law treaties to require punishment by a state of its own nationals in cases of genocide and torture. For example, the Genocide Convention, and the Convention Against Torture require punishment of offenders in applicable situations. The International Covenant on Civil and Political Rights does not explicitly require states to punish offenders, but does require them to investigate alleged offences. If there is a duty on a state to punish serious violations of international law, that duty falls on successor regimes even if the successor regime is democratically elected, or a transitional regimes. It is possible that an amnesty under domestic law can violate international obligations. However, as retribution is not revenge, punishment, like all human rights policies, must itself conform to international law standards. When punishment is pursuant to international law, not unbridled discretion, it is less likely to be a political affair.

In keeping with Tan’s description of retributive justice in human rights matters, Paul Krugman effectively rebuts each of the Obama Administration’s excuses for not pursuing at a minimum an investigation of the Bush Administration’s violations of human rights as detailed in the recently released torture memos:

“Nothing will be gained by spending our time and energy laying blame for the past.” So declared President Obama, after his commendable decision to release the legal memos that his predecessor used to justify torture. Some people in the political and media establishments have echoed his position. We need to look forward, not backward, they say. No prosecutions, please; no investigations; we’re just too busy.

And there are indeed immense challenges out there: an economic crisis, a health care crisis, an environmental crisis. Isn’t revisiting the abuses of the last eight years, no matter how bad they were, a luxury we can’t afford?

No, it isn’t, because America is more than a collection of policies. We are, or at least we used to be, a nation of moral ideals. In the past, our government has sometimes done an imperfect job of upholding those ideals. But never before have our leaders so utterly betrayed everything our nation stands for. “This government does not torture people,” declared former President Bush, but it did, and all the world knows it.

And the only way we can regain our moral compass, not just for the sake of our position in the world, but for the sake of our own national conscience, is to investigate how that happened, and, if necessary, to prosecute those responsible.

What about the argument that investigating the Bush administration’s abuses will impede efforts to deal with the crises of today? Even if that were true — even if truth and justice came at a high price — that would arguably be a price we must pay: laws aren’t supposed to be enforced only when convenient. But is there any real reason to believe that the nation would pay a high price for accountability?

For example, would investigating the crimes of the Bush era really divert time and energy needed elsewhere? Let’s be concrete: whose time and energy are we talking about?

Read More:

Incidentally, as copied and pasted below, the first reader’s comment following Krugman’s column received 490 recommendations by other Times readers.

If we do not investigate the allegations of torture and the lies that led up to the Iraq war we are telling all future presidents they are above the law and the Constitution does not apply anymore. We are destroying our nation when we allow powerful politicians to disregard the Constitution and international treaties. These are the same people that questioned the patriotism of any American citizen that disagreed with them and tried to stifle dissent. I don't want my patriotic voice silenced any longer. I want the Constitution enforced, now!

— Jim Harrington, San Diego, CA


  1. I think they should ALL be punished. Especially those low-ranking people who took photos of themselves laughing at prisioners naked in a pile. They knew what was REALLY going on because they were right there doing it themselves.

  2. Hi 1950s Democrat, I think the low-level torturers have already been court-martialed and received their punishments. The higher ups may still avoid even an investigation. This is wrong.