Early in January 2009, before he was inaugurated, then-President-elect Barack Obama who had earlier “broadly condemned some counterterrorism tactics of the Bush administration and its claim that the measures were justified under executive powers” said that “he also had ‘a belief that we need to look forward as opposed to looking backwards.'”[1]
Imagine, I rhetorically asked my students (I was still employed at the time), if you had kidnapped and murdered vast numbers of people and subjected some of them to torture, what your local district attorney would think. Would s/he excuse your conduct on grounds that “we need to look forward as opposed to looking backwards?”[2]
The problem I was reaching for, although I think I expressed this poorly at the time, is one of accountability. It bedevils anarchists; Uri Gordon points out that accountability requires an authority to investigate any breaches of agreed conduct and to impose any sanctions.[3] The problem I am dealing with today, however, does not arise in an anarchist situation, but rather its complete opposite, a situation in which a person in an authoritarian position elects not to hold people accountable for their actions.
Even when those actions are almost certainly war crimes.
The rationale for accountability is that when people are hurt, society needs protection from the offender and victims need some sort of compensation. Accordingly, a profoundly flawed criminal justice system which “is morally indistinguishable from criminality insofar as it exercises force and imposes suffering on human beings while violating its own morally justifying ideals: protection and justice,”[4] has developed that not only fails adequately to discern truth of guilt or innocence,[5] but further harms presumed offenders, their families, and their communities, leading to yet more crime,[6] without ever addressing root causes, but instead stigmatizes the poor.[7]
The fact is that in the United States, we very much seem to prefer vengeance to justice. Now after over six years in office, as the Senate Intelligence Committee is at odds with the Central Intelligence Agency not only over whether the CIA improperly accessed Committee computers but over “enhanced interrogation” programs—torture—Obama views torturers gently, saying “it’s important for us not to feel too sanctimonious in retrospect about the tough job that those folks had. A lot of those folks were working hard under enormous pressure and are real patriots.”[8]
I wonder what the judges of the Nuremberg trials would think of this. Obama’s failure to prosecute Bush administration criminality is itself a violation of international law.[9] But Obama had only banned only some forms of torture, not all,[10] and we already know that torture, or at least abuse that very likely amounts to torture, continued in secret jails in Afghanistan under Obama’s watch.[11] Further, Obama has gone on to commit what are almost certainly war crimes by authorizing drone strikes that have disproportionately killed civilians.[12] Now again, today, it seems that within the U.S. military, to an extent unmatched by its allies, there is impunity for disproportionate civilian deaths.[13]
The Obama administration has been lawless in many respects. Domestic spying and prosecution of whistle-blowers come to mind. But these are war crimes, crimes that as recently as in the aftermath of World War II, elites collectively swore must never happen again. They are crimes against humanity that, in the scale of morality that then arose, dwarf other forms of criminality. And why? Obama explains, obscuring the felt need for vengeance that Muslims and people of a certain shade of color continue to feel the effects of:
Even before I came into office, I was very clear that in the immediate aftermath of 9/11, we did some things that were wrong. We did a whole lot of things that were right, but we tortured some folks. We did some things that were contrary to our values. I understand why it happened. I think it’s important when we look back to recall how afraid people were after the twin towers fell and the Pentagon had been hit and the plane in Pennsylvania had fallen and people did not know whether more attacks were imminent and there was enormous pressure on our law enforcement and our national security teams to try to deal with this.[14]
William Rivers Pitt dissects the morality of this at length. His point, put entirely too briefly, is that the reason we have a system of laws and (so-called) justice is that the heat of the moment should never excuse some conduct.[15] In other words, a felt need for vengeance must never outweigh the genuine need for justice.
But in this country, it does.
- [1]David Johnston and Charlie Savage, “Obama signals his reluctance to investigate Bush programs,” New York Times, January 2, 2009, http://www.nytimes.com/2009/01/12/world/americas/12iht-12inquire.19265701.html↩
- [2]Barack Obama, quoted in David Johnston and Charlie Savage, “Obama signals his reluctance to investigate Bush programs,” New York Times, January 2, 2009, http://www.nytimes.com/2009/01/12/world/americas/12iht-12inquire.19265701.html↩
- [3]Uri Gordon, Anarchy Alive! Anti-authoritarian Politics from Practice to Theory (London: Pluto, 2008).↩
- [4]emphasis in original, Jeffrey Reiman, The Rich Get Richer and the Poor Get Prison, 7th ed. (Boston: Allyn and Bacon, 2004).↩
- [5]Dan Simon, In Doubt: The Psychology of the Criminal Justice Process (Cambridge, MA: Harvard, 2012).↩
- [6]Ernest Drucker, A Plague of Prisons: The Epidemiology of Mass Incarceration in America (New York: New, 2011).↩
- [7]Herbert J. Gans, The War Against The Poor: The Underclass And Antipoverty Policy (New York: Basic, 1995); Jeffrey Reiman, The Rich Get Richer and the Poor Get Prison, 7th ed. (Boston: Allyn and Bacon, 2004).↩
- [8]Barack Obama, quoted in Tom Kludt, “Obama: ‘We Tortured Some Folks’,” Talking Points Memo, August 1, 2014, http://talkingpointsmemo.com/livewire/obama-we-tortured-some-folks↩
- [9]Robert H. Jackson Center, “The Influence Of The Nuremberg Trial On International Criminal Law,” n.d., http://www.roberthjackson.org/the-man/speeches-articles/speeches/speeches-related-to-robert-h-jackson/the-influence-of-the-nuremberg-trial-on-international-criminal-law/; Jonathan Turley, “United Nation’s Report Condemns The United States For Human Rights Violations, Including Blocking Prosecution Of Those Responsible For Torture,” March 28, 2014, http://jonathanturley.org/2014/03/28/united-nations-report-condemns-the-united-states-for-human-rights-violations-including-blocking-prosecution-of-those-responsible-for-torture/; Matthew Weaver, “US human rights record chastised in UN report,” Guardian, March 27, 2014, http://www.theguardian.com/world/2014/mar/27/us-human-rights-record-chastised-un-report; ↩
- [10]Jeff Kaye, “Obama Admits He Banned Only “Some” of the CIA’s Torture Techniques,” Firedoglake, August 3, 2014, http://dissenter.firedoglake.com/2014/08/03/obama-admits-he-banned-only-some-of-the-cias-torture-techniques/↩
- [11]Hilary Andersson, “Red Cross confirms ‘second jail’ at Bagram, Afghanistan,” British Broadcasting Corporation, May 11, 2010, http://news.bbc.co.uk/2/hi/8674179.stm; Kimberly Dozier, “U.S. holds terror suspects at secret Afghan sites,” San Francisco Chronicle, April 8, 2011, http://www.sfgate.com/world/article/U-S-holds-terror-suspects-at-secret-Afghan-sites-2376267.php; Anand Gopal, “America’s Secret Afghan Prisons,” Nation, January 28, 2010, http://www.thenation.com/article/americas-secret-afghan-prisons; Adam Martin, “Secret U.S. Prisons in Afghanistan Confirmed Again,” Atlantic Wire, April 8, 2011, http://www.theatlanticwire.com/global/2011/04/secret-us-prisons-afghanistan-confirmed/36471/↩
- [12]Amnesty International, “‘Will I be Next?’ US Drone Strikes in Pakistan,” October 22, 2013, http://www.amnestyusa.org/our-work/issues/security-and-human-rights/drones/will-i-be-next; Jon Boone, “US drone strikes could be classed as war crimes, says Amnesty International,” Guardian, October 21, 2013, http://www.theguardian.com/world/2013/oct/22/amnesty-us-officials-war-crimes-drones; Human Rights Watch, “‘Between a Drone and Al-Qaeda’: The Civilian Cost of US Targeted Killings in Yemen,” October 2013, http://www.hrw.org/reports/2013/10/22/between-drone-and-al-qaeda; Mark Schone, “White House admits killing civilians with drone strikes, denies breaking law,” NBC News, October 22, 2013, http://investigations.nbcnews.com/_news/2013/10/22/21065224-white-house-admits-killing-civilians-with-drone-strikes-denies-breaking-law; Declan Walsh and Ihsanullah Tipu Mehsud, “Civilian Deaths in Drone Strikes Cited in Report,” New York Times, October 22, 2013, http://www.nytimes.com/2013/10/22/world/asia/civilian-deaths-in-drone-strikes-cited-in-report.html↩
- [13]Gabriel Domínguez, “AI: US military justice system in ‘urgent need of reform’,” Deutschewelle, August 11, 2014, http://www.dw.de/ai-us-military-justice-system-in-urgent-need-of-reform/a-17842563; Gabriel Domínguez, “Amnesty slams US’ ‘poor record’ of probing civilian killings in Afghanistan,” Deutschewelle, August 11, 2014, http://www.dw.de/amnesty-slams-us-poor-record-of-probing-civilian-killings-in-afghanistan/a-17844952↩
- [14]Barack Obama, quoted in Tom Kludt, “Obama: ‘We Tortured Some Folks’,” Talking Points Memo, August 1, 2014, http://talkingpointsmemo.com/livewire/obama-we-tortured-some-folks↩
- [15]William Rivers Pitt, “The Dumpster Fire of Obama’s Moral Authority,” Truthout, August 7, 2014, http://www.truth-out.org/opinion/item/25430-the-dumpster-fire-of-obamas-moral-authority↩