Over the past century, our nation has triumphed over two sets of aspiring global tyrants: the axis powers in WWII, and the Soviet Union in the Cold War. Our victories over these foes were, in each case, world-historical in scale and importance. Yet within less than a century, we now flirt with losing the principles those successes established.
First, our recent record on torture, and more recent failure to prosecute all officials involved in enabling it, undermines the legacy of international human rights we established after the Second World War. Second, after vindicating freedom, liberty, and individual privacy in the Cold War, we now dutifully submit to a surveillance state more intrusive than any that has ever existed in human history.
In other words, Bush and Cheney succeeded in doing what neither Nazi Germany nor the Soviet Union could: eviscerate American values and undermine our grandest foreign policy accomplishments since the turn of the 20th century. And while President Obama's aim to "look forward, not backward," may resemble a thoughtful political compromise, it is an illegal capitulation to illegitimate political interests carrying profound consequences for human rights and freedom both in the U.S. and around the world.
WWII and Human Rights...
The allied powers fought the Second World War largely in the name of human rights, which we enshrined in its wake with a series of international institutions. The United Nations was perhaps the most ambitious example; others include various treaties setting baseline standards for (among many other things) the treatment of detainees during wartime.
International institutions to ensure collective security represented a major leap forward for humankind, akin to the Apollo moon landing 20 years later. Not since the Treaty of Westphalia in 1648 had international relations undergone so fundamental a transformation. A core tenet of the post-WWII era, established by the Nuremberg Trials of former Nazi officials, held that individuals bear criminal liability for violating international human rights regardless of what domestic laws my authorize their conduct. The "following orders" defense was soundly rejected and officials up and down the chain of command faced justice for war crimes.
We Americans have been called upon to apply these principles to our own leaders only 60 years later. But our willingness to preserve our earlier achievements has proven lacking.
...vs. Torture with Impunity
Despite public pressure from voices across the political spectrum, the Obama administration continues to sweep torture under the rug. And while the Holder Justice Department has demonstrated welcome independence by recently announcing a limited investigation led by a special prosecutor, it could be worse than none at all if senior officials enjoy effective immunity.
First, investigating only junior level scapegoats would set a legal precedent that decisionmakers can violate human rights with impunity. Second, overlooking senior officials who set torture policies would confer artificial legitimacy on the range of offenses that were officially approved, despite their international illegality. While the current cover-up threatens the rule of law and real accountability is necessary, scapegoating could be even worse than doing nothing.
Failing to follow the key Nuremberg precedents--that "following orders" cannot justify war crimes and that liability transcends the chain of command--weakens them in the future. Mere omission vindicates lawlessness: sitting on our hands or prosecuting only some individuals involved will undermine the international legal framework we erected after defeating the Axis powers.
Immunity for any officials involved in torture will lead to an unfortunately predictable result: a global race to the bottom in human rights standards. Every two-bit despot the world over will claim a license to torture, maim and perhaps even kill at will.
Rather than stand accountable to the international community, any accused torturer need merely cite the Holder precedents (allowing perceived necessity to justify war crimes and resurrecting the lame "following orders" defense) to escape justice for whatever manner of abuse they might concoct. Even today, torture by U.S. officials reportedly continues at Guantanamo Bay, where Immediate Reaction Forces have killed at least one detainee while administering brutal force feedings lacking even sanitation, let alone anesthesia.
Moreover, by eroding a principle so fundamental as the prohibition on torture, underinclusive prosecution renders more palatable the full range of other international law violations. If even torture doesn't justify prosecuting everyone involved, why would, for instance, poaching endangered species or violating the ban on ozone-producing chlorofluorocarbons (CFCs)?
When attempting to justify their desire to sweep torture under the rug, apologists argue from both sides of their mouths. Accepting the "following orders" defense, they suggest that investigators ignore wrongdoing by interrogators who committed torture, yet conversely demand that senior officials who issued those orders should also escape investigation (despite their even greater culpability). Apologists wish to avoid "chilling current intelligence operations," but given the dismal performance of our intelligence agencies, a little transparency and accountability is long overdue.
Examining other examples of prosecution offers even more reasons to pursue a robust and thorough--rather than artificially limited--investigation. Unless expanded from its initial contours, prosecutor John Durham's investigation will allow the architects of torture policy to remain free, while only other countries' torturers face justice (or for that matter, while non-violent offenders in America receive prison sentences for vastly less severe crimes). The resulting contrast and lack of proportionality could erode the legitimacy of both the international legal regime generally, and our own criminal justice system, in one fell swoop. Few discrete decisions--and even fewer omissions--could do so much damage so quickly to such vital institutions.
Our failure to apply the Nuremberg precedents threatens to sacrifice a civilizational advance as major as the printing press. Perhaps we should be less surprised, however, given that U.S. torture policy boasts a long, unapologetic history across a disappointing number of contexts. The result will ultimately turn on how much (and how sincerely) we honor the sacrifice of veterans who died in WWII--and whether everyday Americans committed to the legacy of human rights they established see fit to raise our voices.