December 4, 2008

Beyond pardon


I mentioned something like this briefly towards the end of yesterday's post, but here's an even more striking demonstration of the moral bankruptcy of the forgive-and-forget approach to America's recent history of torture. In an article on whether Bush should issue a blanket pardon for torture, Mike Mukasey says no, because that would lead people to believe that there was something wrong with the government's interrogation, detention, and surveillance programs that would require pardoning in the first place -- which in turn will cause people to be less likely to endorse similar approaches down the road:

"People are going to get the message, which is that if you come up with an answer that is not considered desirable in the future you might face prosecution, and that creates an incentive not to give an honest answer but to give an answer that may be acceptable in the future. It also creates some incentive in people not to ask in the first place.

Um, yeah, that's called deterrence, and it ought to be one of the things our criminal justice system is concerned with. Stifling discussion is a good thing when discussion veers into the illegal and immoral. If someone's "honest" answer is, "lets induce fatal hypothermia," you're damn right I'd like to disincentivize that.

That so many people (not least the attorney general -- who got the job because he was a vast improvement over the last one) can still believe that no serious wrong has been done actually persuades me that in fact there shouldn't be prosecutions. Yes, prosecution would serve the cause of individual justice, but the country is much more seriously out of whack than simply arresting bad guys can fix, and setting it right needs to take priority. That's why I'd rather support a truth and reconciliation commission.

Prosecution will only harden the hearts of those who can't understand the evil that occurred, and make them more disposed to repeat that evil given half a chance. It could also, especially if done poorly, frame America's torture program into the bad actions of individuals, or of a specific chain of command, rather than a systemic problem. And it will create an incentive for the accused to deny, obfuscate, and challenge, which means that even if they are convicted, the public will still be left with the general sense of a debate that may not be completely settled. A truth commission, done properly, would remind people once and for all why torture is always a moral outrage.

Posted by Daniel Radosh


this is a lame comment, but, um, i agree with you.

" if you come up with an answer that is not considered desirable in the future..."

this totally misses the point. the "answer" that they came up with was considered not desirable (read: illegal) until they decided otherwise. they were breaking existing laws, not some potential future laws that a more thoughtful society might impose ex post facto (use of Latin: 5 bonus points).

that said, i think you're right about the Commission which does seem to be the best answer. Scott Horton reaches a similar conclusion in this month's Harper's for whatever that's worth.

@Jamie. Excellent point. (You too, slutwench)

Here, here, righteous one!

I don't mean to be all troll-ish, but "truth commission"? Why do we need a government "truth commission"? Especially considering that you're accusing the government of endorsing untruthful speech?

This is all about convincing people of the truth of your beliefs, right? And according to the 1st Amendment, isn't that the job of free speech? And free speech is supposed to be guaranteed to the people, and not the government?

Jeez, is there any job that citizens can do, that you don't think the government can do better?

Truth commission? How Orwellian can we get?

@Comish. Do you have any idea how a TRC works? If you don't like the idea, attack the actual idea, not your made-up version of it. Most people cite South Africa's as the best model to date. I'm certainly not thinking of the bullshit 9/11 commission.

Also, the First Amendment doesn't actually assign a "job" to free speech, it simply asserts it as a right. I assume you're referring to the "marketplace of ideas" theory. Oliver Holmes certainly read such a job into the Constitution in Abrams v. US (his dissent in that case is personally dear to me, as a relative of Jack Abrams) but he meant that government ought not *limit* speech in order to protect the truth, not that government had no right or duty to seek or promote the truth itself.

Can the president pardon himself? I can't understand how a single person could be punished for torturing detainees when the order to torture comes directly from the president. I think Jamie sums up the situation quite succinctly. What Mukasey is not saying though, is that if Bush pardons anyone, he is admitting to at least the perception that he is guilty of something himself. We know that bush is incapable of admitting something he did may even be perceived as wrong, that he knows other people have ideas different from his and that god has not guided his every action perfectly.

Any pardon for torture could only mean bush is admitting that he himself has violated the law, at least according to the majority of Americans who voted in democrats across the board. His huge ranch in paraguay probably seems like a great investment right now.

I remember reading somewhere that if we want to get the various administration officials to tell the truth about their torture policies, then we should hope for pardons. They can then be subpoenaed to testify before Congress, where, thanks to the pardons, they cannot invoke the fifth amemndement, since they can't be prosecuted for torture. However, if they perjure themselves by lieing about torture, they face jail time.

I'm no legal scholar, but that sounds like great way to get the SOB's to admit that what they did was illegal and wrong.

@King. Yeah, pardons go hand in hand with TRCs. I just wouldn't want to see pardons without a guaranteed mechanism for full confession, which is what Bush would, hypothetically, offer.

Bush is retiring to the scene of his crime family's greatest triumph -- Dallas. These people lack basic human empathy. No confessions will be forthcoming from him or his people without the means they employ on others -- torture.

I thought about a TRC. But we need to prosecute people. Put them in jail. Punish them.

We have a history of peaceful transition between governments. TRC's are for countries that have gone through a lot, lot more. If we can't prosecute people for war crimes, who can??

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