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Susan Benesch Headshot

The Danger of Caution

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If President Obama agrees to investigate or prosecute U.S. officials for torture, he will take a place in line behind newly-elected leaders of Chile, Argentina, South Africa and many other countries who have had to reckon with the crimes of regimes they had just replaced.

Each country has worked out a different formula during the quarter-century in which "transitional justice" has gone from neologism to buzzword, so they now provide the newcomer with a palette of options including truth commissions, trials, hybrid bodies intended to dispense both truth and justice - or none of the above, lest a fragile new government lose its hold on power.

This isn't a typical transitional justice scenario, of course: the United States is not a fledgling democracy. Also, the other countries' former regimes mainly tortured and killed their own citizens, whereas we targeted foreigners. Neither of these is a reason for Obama to sit it out. The United States should be able to uphold the rule of law at least as capably as countries that are just learning, or re-learning, to live by it. And the nationality of torture victims shouldn't have any bearing on the national response to it. First, torture is equally illegal, no matter who suffers it. Second, it causes injury not only to the victims but also to the law, the institutions that carry out torture, the society that sustains them, and to the torturers. The United States must recognize and repair that damage, as soon as possible.

Like his predecessors in other countries, Obama is weighing the risks of reckoning with the past against its benefits. But recent experience from abroad shows that reckoning can only be postponed, not prevented - and if postponed, it festers.

"This is a time for reflection, not retribution," Obama said on Thursday, defending his decision to release four more Bush Administration 'torture memos' while declining to prosecute those who committed torture. "Nothing will be gained by spending our time and energy laying blame for the past." With these cautious words, Obama inadvertently echoed what Chilean President Patricio Aylwin said on March 4, 1991, upon releasing the report of Chile's National Commission on Truth and Reconciliation. The report described how 2,279 people were killed for political reasons by the 1973-1990 military regime of General Augusto Pinochet. "We should not waste all our efforts digging into wounds that are irreparable," Aylwin said. "We cannot progress by digging deeper into divisions. It is time for pardon and reconciliation."

At the time Aylwin didn't have much choice but to pardon, as his Chilean audience knew. General Pinochet had grudgingly permitted the elections that Aylwin won to succeed him as president in 1990, but Pinochet retained control of the armed forces and the Senate, and had seen to the passage of an amnesty law that covered official acts during his regime.

Aylwin was also well aware of the experience of Argentine President Raul Alfonsin, who took office in 1983 after a seven-year military dictatorship had waged a "Dirty War" against suspected dissidents, killing at least 13,000 of them. Alfonsin created a truth commission and then ordered nine former junta leaders prosecuted, which led to military uprisings that nearly overthrew him. He felt forced to ask Congress to pass laws ending the trials and promising impunity to other officers. In 1990, Alfonsin's successor Carlos Menem pardoned the junta leaders, in the name of national reconciliation. "The past has nothing more to teach us. We must look ahead, with our eyes fixed on the future," Menem said. Alfonsin called it the "saddest day in Argentine history."

There is a saying in Argentina: the past is a predator. Its grip on the present is not easy to loosen. To this day, Chile and Argentina are still reckoning with the state crimes of the 1970s and 1980s. Pinochet was arrested in London in October 1998, based on a human rights case against him in Spain, and eventually returned to Chile, where hundreds of charges for torture and killings were filed against him. He died in 2006 without being convicted. Still, hundreds of other former Chilean military officers have been accused and many convicted, even though more than 30 years have passed since most of the crimes occurred. The same is true for Argentina, where laws against prosecutions for Dirty War crimes have been overturned, and more than 400 people now face charges.

In both countries, the prosecutions have had many curative effects. They made it clear that torture is a crime, strengthened the Chilean and Argentine judiciaries, and elicited truth that the commissions were unable to gather. Once prosecutors scrutinized Pinochet, for example, they charged him for corruption as well as human rights violations, cracking the façade of honesty that he had maintained among some Chileans. The cases against Pinochet led to charges against lower-ranking officials, and opened a new public discussion about the past, joined sometimes by torturers themselves, who have come forward to make startling, detailed confessions. In Argentina, for example, a former naval officer confessed to his role in throwing live prisoners into the ocean during "Death Flights," which sparked a round of confessions from other officers.

Accountability can also be internationally contagious. Just two weeks ago, the Peruvian Supreme Court convicted former Peruvian President Alberto Fujimori for torture, disappearances and massacres, and sentenced him to 25 years.

Courts are likely to spend decades deciding U.S. torture cases, too, if Obama declines to consider them promptly. The matter will make its way into courtrooms in other ways. Torture charges against U.S. officials have already been filed in Spain, and civil lawsuits are likely to come from the private bar in the United States.

In January, Sen. Arlen Specter (R-PA) indignantly rejected a truth commission for Bush-era torture and other crimes and said, "This is not Latin America". Sen. Specter was right in an unintended sense. Obama is not navigating a risky transition from military to civilian rule in 1983 or 1991. Surely the United States can do at least as well as Chile or Argentina, in allowing state crimes of the past to be exposed to the rule of law. For Obama the greatest danger may come, in fact, from caution.