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Thursday, April 28, 2016

Are we more like Argentina or Russia?

A question I have been mulling for a while now is whether the US is likely to make a serious attempt at some point in the future to hold former government officials accountable for sanctioning arguably unlawful interrogation techniques undertaken as part of the “War on Terror.” 

The Obama administration has taken the position that it would not prosecute anyone who acted “in good faith and within the scope of the legal guidance given by the Office of Legal Counsel.”  See here.  The Department of Justice ultimately conducted a criminal investigation to see whether any “unauthorized interrogation techniques” were used, but this investigation was closed without any criminal charges being brought.  See here.  As best I can tell, it never looked into the question of whether the authorized interrogation techniques would constitute a violation of US or international law but for the (dubious) “legal guidance given by the Office of Legal Counsel.”  See here for a readable discussion of the legal guidance that was being offered at the time.  See here for another argument about why the OLC’s advice was suspect.

This is all well-known by now, quite depressing, but also unsurprising.  My sense is that the first response of governments to (true) allegations of wrongdoing is usually denial.  If that fails, the next response is to admit that mistakes were made but try to “move on” from them.  This is essentially the stage we are at with regard to the “Torture Memos.”  Governments are understandably reluctant to investigate and prosecute their own senior officials.  See here for a brief discussion of why the Obama administration chose not to investigate whether the OLC’s advice was a violation of the law.  Thus, serious investigations and prosecutions of the architects of wrongdoing are often resisted. 

At this point in time it seems impossible that the US will conduct a criminal investigation of whether any senior officials are responsible for either providing suspect legal advice or authorizing torture based on that suspect legal advice.   But it may not always seem impossible.  Indeed, there is a small but distinct possibility that what once seemed impossible will eventually seem inevitable.

I study post-conflict societies as a off-shoot of my interest in international criminal law and the winning side is almost always reluctant or unwilling to conduct a meaningful investigation of their own wrongdoing.  Indeed, amnesties and pardons are still a common “solution” to such wrongdoing.  But what I have also noticed is that attitudes in post-conflict societies can change over time.  This process can take decades, but things that seemed impossible soon after the trauma of the conflict can eventually occur.  It is not a perfect analogy, but a number of Central and South American states have gone through a process where state-sponsored wrongs were initially hidden, then swept under the rug and eventually (decades later) the subject of criminal prosecutions.  Of course, not all societies necessarily go through this process.  Russia for example appears to be content to sweep the wrongs committed under Stalin under the rug.  See here.

I don’t have a theory as to why some states progress to the stage of prosecuting prior wrongdoing, while others do not.  I suspect it is partly due to the passage of time.  It is also probably due to turnover in personnel.  It may well be that the next generation is less invested in the decisions of their predecessors.  It probably also has to do with shifts in the ruling party.  But whatever the reasons, there is a real possibility that at some point in the future the US government will make a meaningful inquiry into whether senior US officials authorized torture in violation of the law.  By the same token, it is also possible (perhaps even likely) that we will eventually decide collectively that the authors of the Torture Memos were heroes who were acting in our interests and that we don’t want to consider whether what they did was wrong.  So I guess the question is whether we are more likely to end up like Argentina or Russia?

Posted by Stuart Ford on April 28, 2016 at 03:23 PM | Permalink


"The Case of Lisandra P." -- taking place in 1980s Argentina ... was a good read. It has some legal and dealing with the aftermath of torturous regimes themes.

Posted by: Joe | May 2, 2016 11:59:40 AM

Say what? In which case the legal ignorance of the "voters" would be transparent and morally frightening...and that would hardly be the "end of it."

Posted by: Patrick S. O'Donnell | May 1, 2016 4:40:24 AM

It's a pity President Bush didn't pardon everyone involved in the waterboarding of captured al qaeda leaders. Then the voters could have rendered a verdict on how they felt about it and that would have been the end of it.

Posted by: Douglas Levene | May 1, 2016 2:30:56 AM

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