Saturday, November 15, 2008

Truth vs. justice, American style

There's a pretty big debate in the field of "transitional justice" about whether human rights violators should be prosecuted or given amnesty after their regime ends. We typically discuss this debate in the context of distant countries like South Africa, Afghanistan, Guatemala, etc. On the one hand, prosecutions ostensibly reinforce the rule of law; on the other hand, reconciliation is supposed to pave the road to long-term peace.

Well whad'dya know, this question is now front and center here at home. In January, the U.S. will be transferring leadership, and thus changing some of the ways in which the "war on terror" is conducted. Meanwhile, independent war-crimes experts have noted that there is plenty of evidence already out there to pursue criminal prosecutions against Bush Administration officials, at least as high up as Cheney, for human rights violations such as torture and disappearances. Some human rights advocates are demanding that we must prosecute them in order to send a message to the rest of the world that we apply the rule of law to everyone.

So, should Obama "bring the violators to justice," or should he pursue "truth and reconciliation"? As much as I'm disgusted by the crimes of the Bush Administration, I'm inclined to support the latter. Indeed, that seems to be the direction that Obama is heading as well.

Why don't I support criminal prosecutions? First, I think any prosecutions of senior leaders would be perceived as political revenge rather than impartial justice. As a result, they would be largely seen as illegitimate, and not very feasible in the first place. Second, Obama is trying to set a tone of reconciliation and bipartisanship, and prosecutions would be so controversial that they would consume his entire first term. It would likely handcuff his ability to get much done on the economy, health care, Iraq, Afghanistan, etc. Third, simply establishing some kind of truth commission (via congressional hearings or a special bipartisan panel like the 9/11 Commission) would be a huge step forward in acknowledging the sins of the past and laying the groundwork for reform. A truth commission would also be controversial, but if it was organized in the right way, it could actually build public consensus about how to move forward. Fourth, a truth commission would not preclude going after prosecutions at some point in the future. Even in countries where amnesties have been given, such as Chile, they can later be revoked or overridden by a different judicial body.

So yes, we need a full and public accounting of the ways in which the Bush Administration violated the Geneva Conventions, the Convention against Torture, our own Constitution, and various other standards of decency. But at least for the time being, human rights activists should back off from their demands for prosecution in the interests of moving forward.


jterry said...

I'm going to confess here that I think "truth v. justice" is an entirely false dichotomy kept alive primarily by human rights and conflict resolution types interested at keeping themselves in business. We need to stop thinking of justice as an entirely punitive act, and we need to stop kidding ourselves that prosecutions don't lead to truth telling. I think a truth commission can actually lead to individuals feeling a sense of justice, and perhaps that form of justice is exactly what we need in this case, as you allude to above.

Dan Chong said...

Jason, I party agree with you. We should be trying to re-define justice so that it's not viewed as exclusively punitive. But I also think the debate is much more than something to keep IPCR professionals employed. There are very real goals to pursue at the "justice" end of the spectrum (rule of law, deterrence, etc) that inevitably come into tension with real goals at the "truth" end of the spectrum (peace, reconciliation, etc). So there are some real trade-offs to consider in this debate.