Crime without punishment

A moment of great rejoicing for human rights activists and champions of the rule of law came at the beginning of this month as former Peruvian president Alberto Fujimori was sentenced to 25 years in jail for “crimes against humanity”, having authorized murders, kidnappings, and torture as part of a severe anti-terrorist campaign in the 1990s. Fujimori’s sentencing, one must hope, will send a powerful message to government leaders around the world that maintaining public security is an insufficient excuse for violating fundamental human rights, and that even presidents will be held to account for the crimes they commit in office.

But not in America.

Not because there is nothing to prosecute. On the contrary: in the years following the 9/11 attacks, both a president and a vice president of the United States initiated, oversaw, attempted to cover up and then to justify a program of interrogation that was based on torture, in violation both of domestic U.S. law and of the country’s international treaty obligations. In December, former vice president Dick Cheney casually admitted to ABC News his role in authorizing techniques like waterboarding, a technique which the Obama administration’s attorney general, Eric Holder, would later tell Congress is undoubtably a form of torture. This interrogation program was approved by top administration lawyers and carried out by employees of the CIA.

By implementing such a program, the United States became a torture state, a classification borne at different times by countries like Iran, Argentina, Chile, and the Soviet Union. Worse, it did so with the largely tacit — but quite real — support of much of its population. But President Barack Obama has apparently decided that the stain of torture should remain on society’s skin — not washed away, but simply ignored. As part of a release of classified CIA documents relating to torture, Obama announced in his now-familiar poetic diction, “This 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.”

There is nothing that eternally optimistic Americans like better than moving on swiftly from unpleasant situations, so the president’s mellifluous proposal will doubtless meet with little opposition from the man in the street. But he is wrong to declare that “nothing will be gained”. Prosecutions would do several things. They would ensure that justice is done and is seen to be done, and would thus restore respect for the rule of law. They would publicly reinforce American society’s shared sense of right and wrong. They would dispel the cynicism that flourishes when power is unchecked and the force of the law is seen to apply only to the common people. They would prevent denial and myth from forming a crust under which a country’s authentic history would find itself buried. They would deter potential torturers in the future. And to the world, they would signal America’s intent to return to Enlightenment principles upon which it was founded.

Obama may think that this decision is based on a tough-minded political realism. But that hard logic should only apply to the removal of dictators in foreign countries who would otherwise cling tenaciously to power if threatened with prosecution for their crimes. In such cases, a society may reasonably opt to deny justice in order to peacefully achieve democracy. But in America, in 2009, no such trade-off is required. The Bush administration was not a dictatorship, but the elected government of the world’s most powerful democracy; there was no hint that it would refuse to give up power after November’s vote. Obama’s “realism” is based on an unnecessary and absurdly one-sided bargain: the denial of justice in return for the morale of CIA agents.

The contrast with the moral and political example set recently by Peru could not be more stark. In the 1980s and 90s Peru faced not one but two significant insurgencies: a guerrilla campaign mounted by the Túpac Amaru Revolutionary Movement (MRTA), and a separate terrorist/guerrilla campaign mounted by the Maoist Sendero Luminoso (“Shining Path”). By the early 1990s, large swathes of rural Peru had slipped away from government control, and it is no exaggeration to say that the Peruvian state faced an existential threat.

President Fujimori, a man of clearly authoritarian tendencies who shut down Peru’s Congress and hobbled its justice system in favour of untrammelled executive power, relied on the support of an urban-based public that applauded his hardline stance and demanded an end to the insurgencies. When Peru’s police forces did not produce results fast enough, Fujimori sent in the military. Army units intimidated villagers, fighting a grim battle with the insurgents not so much for the hearts and minds but for the submissive obedience of the rural population. Fujimori also authorized the creation of military death squads, who kidnapped, tortured, and murdered suspects. Noted the country’s Truth and Reconciliation Commission in 2003:

57. The TRC has established that the most serious human rights violations by military agents were: extrajudicial executions, forced disappearance of persons, torture, cruel, inhuman or degrading treatment. The TRC particularly condemns the extensive practice of sexual violence against women. All these acts constitute a dishonor for those who perpetrated them directly and for those who, in their position of hierarchical superiors, instigated, permitted or covered them up with mechanisms of impunity.

Patient police and intelligence work eventually won out, and Abimael Guzmán, the leader of the cult-like Shining Path, was arrested and tried in late 1992. By 1997 both insurgencies had sputtered out, and peace finally returned to Peru after decades of war. Fujimori was removed from office in 2000 following a serious corruption scandal involving his chief of intelligence, Vladimiro Montesinos, who was caught on film trying to bribe a congressman into switching sides. Peru’s subsequent administrations, rather than declaring that “nothing will be gained by spending our time and energy laying blame for the past”, put the former president on trial for serious violations of human rights. And has now put him in jail.

Any war against terrorists is invariably frustrating for a state and its police and soldiers. The temptation to “take the gloves off” is ever-present, and the sanctions and principle of the rule of law are often the only things preventing a given government from crossing that line. Yet the rule of law only has power — indeed, it only exists — if it is acted upon as systematically and as apolitically as possible. Decide to ignore significant crimes for political reasons and the law is turned into a harmless ghost.

Peruvian society, under mortal threat over many years of war, made some serious mistakes, blessing a government’s incipient authoritarianism and supporting its slide into state-sanctioned terror. But once it had removed that government from power, Peru quickly moved to restore belief in the rule of law by trying and punishing its former chief executive and his head of intelligence. “[T]his ruling is an historic step in the fight against impunity, not just in Peru but in Latin America,” said a legal advisor to Amnesty International. “It sends a clear message that impunity will not be tolerated in the future.”

Under the pressure of 9/11, American society made serious mistakes too. But President Obama’s recent decisions mean that for high crimes of state, the rule of law is now an irrelevancy. They mean that whenever the American state feels threatened, we should expect that it will act increasingly ruthlessly, since no credible threat of future punishment will exist to keep its agents or its officers of state in check. They mean that into the indefinite future, a group of Americans who have earned their pay cheques as state torturers will continue to be employed by the government. Worst of all, it means that almost inevitably, and perhaps not too long from now, they’ll be earning pay cheques again for such evil work.

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