John W. Dean

Expert Advice On Dealing With A Prior Administration's Use of Torture

By JOHN W. DEAN
Friday, June 12, 2009

No official announcement has been made that the Obama Administration is not going to prosecute anyone – other than a few low-level soldiers who photographed themselves and already have been prosecuted – for torturing detainees in our so-called war on terror. But it has become clear that President Obama's announced desire to look forward, not backward, embodies such a decision.

Still, we must all hope that the Obama Administration makes more than a non-decision type of decision, and does not merely resolve the matter by silence and inaction. There are, in fact, precedents, and studies, that illuminate the grave problems confronting a democracy in making a choice when faced with the options of prosecuting and punishing versus forgiving and forgetting. I discovered this material some years ago when studying authoritarian governance.

The Insights of Samuel P. Huntington

I provided evidence in my recent book Conservatives Without Conscience that the Bush/Cheney presidency was the most authoritarian in American history. When doing research for that book, I read a work by the late Samuel P. Huntington, the highly- regarded Harvard political scientist and former president of the American Political Science Association. More specifically, I was interested in Professor Huntington's survey of the transition to democracy, during the mid-1970s through the 1980s, of some thirty countries that had previously been under authoritarian rule, which Huntington wrote about in The Third Wave: Democratization In the Late Twentieth Century.

Professor Huntington, who once served as a foreign policy adviser to Democratic presidential candidate Hubert Humphrey, was respected across the political spectrum, as conservative columnist Jonah Goldberg noted on his passing. Huntington called it as he saw it, and few have studied more governments so closely throughout the world.

When writing The Third Wave, Huntington explained that rather than following his normal practice of detached political analysis, he would explain the implications of his findings at five points in the book, where he "abandoned the roles of social scientist, [and] assumed that of [a] political consultant." It was in this context that Huntington addressed how a democratic government should deal with torture that had occurred under the rule of an authoritarian predecessor.

Applying Huntington's Insights to the Obama Administration's Predicament

While the situations are far from directly parallel, Huntington's analysis strikes me as relevant to our current situation. Thus, in the following paragraphs, I have paraphrased or quoted his work, and occasionally transposed it from the context of a purely authoritarian government to that of the authoritarian-leaning democracy favored by many conservatives, and encouraged by Bush/Cheney, and to the situation now faced by the United States and by the Obama Administration.

In turning to Huntington's analysis, I am not, of course, equating the American conservative authoritarianism with the authoritarianism the professor examined under the Central American and Asian dictatorships, or the Greek military, and similar authoritarian regimes. Nor is the situation parallel when American voters rejected the policies of the Republican Party by electing President Obama.

By the same token, no one should be surprised that torture occurred when American conservatives ruled in an authoritarian manner. Nor, given the fact that Obama campaigned by opposing such authoritarian actions, it should not be surprising that many of his supporters, who voted the authoritarians out of power in Washington, now want him to prosecute and punish those involved.

I found Huntington's work both provocative and illuminating in the context of the current situation that Obama faces in dealing with the use of torture by his predecessor. Especially given the fact we have never faced this situation before in the United States, but similar situations have existed in many other nations, the professor's advice is instructive.

The Case for Prosecuting and Punishing the Use of Torture

Based on Huntington's analysis, which is applicable to our country as well as to a newly-established democracy, there are a number of arguments for holding a prior administration accountable for torture through prosecutions and punishments:

(1) "Truth and justice require it." The Obama Administration "has the moral duty to punish vicious crimes against humanity.

(2) "Prosecution is a moral obligation owed to the victims and their families."

(3) "Democracy is based on law, and the point must be made that neither high officials nor [the] military … are above the law." Citing a judge who was critical of a government amnesty proposal, Huntington added: "Democracy isn't just freedom of opinion, the right to hold elections, and so forth. It's the rule of law. Without equal application of the law, democracy is dead. The government is acting like a husband whose wife is cheating on him. He knows it, everybody knows it, but he goes on insisting that everything is fine and praying every day that he isn't going to be forced to confront the truth, because then he'd have to do something about it."

(4) "Prosecution is necessary to deter further violations of human rights by [future] officials."

(5) "Prosecution is essential to establish the viability of the democratic system." If the Republicans and Bush/Cheney apologists can prevent prosecution though political influence, democracy does not really exist.

(6) Even if the worst "crimes are not prosecuted, at a very minimum it is necessary to bring into the open the extent of the crimes and the identity of those responsible and thus establish a full and unchallengeable public record. The principle of accountability is essential to democracy, and accountability requires 'exposing the truth' and insisting 'that people not be scarified for the greater good…'."

The Case for Forgiving and Forgetting the Use of Torture

Huntington's analysis of the case for leaving a past government's torture in the past, and imposing no consequences, which is based on more extreme government authoritarianism, is not nearly as applicable as his arguments calling for prosecution. Thus, I have taken his core arguments against prosecuting and punishing, and restated them in a context that is more closely applicable to our country and the current situation:

(1) A working democracy calls for reconciliation between major factions in society, who set aside divisions of the past.

(2) There must be a tacit understanding in a democracy among those vying for power that there will be no retribution for past policies sincerely held by opponents. Democracies do not criminalize policy differences, and while the Obama Administration does not believe torture is an effective policy, and has rejected it, it understands that the Bush/Cheney Administration believed it necessary to protect Americans.

(3) Because many Democrats were aware of the use of torture by the Bush/Cheney Administration -- specifically, Congressional Democrats who were briefed on its use -- it would be unfair to prosecute Republicans but not Democrats.

(4) Torture was only used because it was sincerely believed it was necessary to deal with terrorism, and, whether wisely or unwisely, it was done to protect the United States.

(5) Many Americans share in the guilt of the use of torture by the Bush/Cheney Administration. Recent polls indicate that only 29 percent of Americans believe torture should never be used, and the rest have varying degrees of toleration for its use. Similarly, not even half of Americans polled want an investigation into this matter.

(6) Prosecuting and punishing those involved in the use of torture would provoke a bitter and divisive public debate, which would detract from the government's ability to deal with more pressing problems like the economy, healthcare, and America's dangerous budget deficits. It is more important to guarantee the human rights of people today and tomorrow, than to seek retroactive justice that could compromise the ability to deal with more immediate and difficult issues.

Professor Huntington's Advice

It is unfortunate that Samuel Huntington is no longer available to share his wisdom for addressing this situation facing the nation, and the Obama Administration. Clearly there are strengths and weaknesses in the arguments on both sides of this issue. Nonetheless, as I noted, Huntington did give his advice to those who were forming new democracies -- advice which he based on how the democracy was formed:

(1) When the transition to democracy occurred through a process of transformation ("when the elites in power took the lead in bringing about democracy"), or through what he called transplacement ("when democratization resulted largely from joint action by government and opposition groups"), then Huntington advised those in power, "do not attempt to prosecute authoritarian officials for human rights violations. The political costs of such an effort will outweigh any moral gains."

(2) If replacement – not transformation or transplacement -- occurred (that is if "opposition groups took the lead in bringing about democracy, and the authoritarian regime collapsed or was overthrown"), and if those in power felt it was "morally and politically desirable," then Huntington advised that they should "prosecute the leaders of the authoritarian regime promptly (within one year of your coming into power) while making clear that you will not prosecute middle- and lower-ranking officials."

(3) Regardless of how the transition occurred, Huntington advised that those in power ought to "[d]evise a means to achieve a full and dispassionate public accounting of how and why the crimes were committed."

(4) Throughout his analysis, Huntington points out, "on the issue of 'prosecute and punish vs. forgive and forget,'" that "each alternative presents grave problems, and that the least unsatisfactory course may well be: do not prosecute, do not punish, do not forgive, and, above all, do not forget."

Huntington's advice, notwithstanding how the transition occurred during our last election, still appears very relevant to our democracy, which is the most advanced in the world. Personally, I find his arguments for prosecution stronger than those against it when those arguments are applied to the Bush/Cheney Administration. But since it appears the Obama Administration is not going to take such action, at a minimum the Administration should follow Huntington's counsel to find "a means to achieve a full and dispassionate public accounting," and should make certain that the means chosen is not understood as forgiving, which would allow the nation to quickly forget.


John W. Dean, a FindLaw columnist, is a former counsel to the president.

Ads by FindLaw