Living Memory, Torture, and Trials

For those of us born shortly after World War II, the first great moral question we asked ourselves was "if you had been German, what would you have done?" By the time we were in our late teens and early twenties, the question was no longer theoretical. Our country was engaged in an illegal and immoral war, we were subject to the draft, and we had to decide whether we would resist, flee, or become a "good German."

I'm quite convinced that the amount of resistance to the Vietnam War had everything to do with WWII's proximity. The horror may have occurred before our birth, but it was a part of the living memory of our parents, handed down directly to us.

Nor do I believe it to be coincidental that the frenzy of deregulation begun under Reagan coincided with the aging of those who lived through the Depression. As the memory of one economic catastrophe faded, the seeds of the next were sown.

It took 55 years after the Nuremberg trials for the American government to institute torture. Again, I don't think this is a coincidence - for as long as Nuremberg remained in living memory, we would not bend our policies to contradict its principles. (I should stress policy, since individuals under stress shall always act in divergent ways, whether wonderful or loathsome or something in between.)

But as we face the end of living memory of the Nuremberg trials, we must understand that they were not merely designed to punish the guilty, but to make certain that the memory of those war crimes would be codified into law. In other words, Nuremberg should have prevented the crimes committed by the Bush Administration even as memory fades.

This is what law and myth have in common: the ability to sustain an ethic after the death of all individuals who can remember the impetus for that ethic's creation.

And that is why I so profoundly disagree with President Obama's statement that "nothing will be gained by spending our time and energy laying blame for the past."

The reason to hold American torturers accountable at law for their crimes is not a matter of "retribution." It is to insure that when these crimes pass out of living memory, there is a reason for them not to happen again. It is so that the next time a CIA operative is asked to torture, she can refuse on the grounds that it would be illegal to do so, that she would be prosecuted if she did, and that she would be immune from retribution because her refusal has the force of law.

The Watergate trials did not end electoral chicanery, but they did establish standards of behavior and action to which we can hold individuals accountable. Conversely, the refusal to hold the first George Bush accountable for his illegal activities in Iran-Contra (as Carl Bernstein warned us we had to do) allowed his son to perpetuate far graver crimes.

It is one thing for a prosecutor to open an investigation and come to the conclusion that the Bybee and Yoo memos did, indeed, provide valid legal cover for the actions that were taken. It is certainly possible that a court of law would decide that the actions taken were, in fact, not torture as Bybee claims. It is another, entirely, to refuse to so much as open an investigation and thus dismiss the question on political rather than legal grounds.

If we who prosecuted Germans at Nuremberg refuse to hold Americans to the same standard, we are depriving Nuremberg of its precedential value. We are saying that Nuremberg was not a valid legal precedent but merely an act of retribution. We are consigning it to the vagaries of living memory.

And as powerful as living memory may be, like all memory, eventually it shall fade.