Accountability for Torture — More About Courage than Consensus

by Lisa Magarrell & Anh-Thu Nguyen

When a U.S. federal court sentenced Chuckie Taylor, Jr., in 2009 for the crime of torture of his fellow Liberians, the Department of Justice proclaimed, "Our message to human rights violators, no matter where they are, remains the same: We will use the full reach of U.S. law, and every lawful resource at the disposal of our investigators and prosecutors, to hold you fully accountable for your crimes. ...[T]orture will not be tolerated here at home or by U.S. nationals abroad."

The trial of Taylor - son of former Liberian President Charles Taylor -demonstrated the capacity of U.S. courts to prosecute individuals for gross violations of human rights no matter where they occur. It also showed the government's ability to carry out the United States' obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("the Torture Convention").

Definitive information has come to light - through Freedom of Information Act litigation and investigations undertaken by the Senate Armed Service Committee (PDF), the International Committee of the Red Cross (PDF) and others - that U.S. agents have undeniably committed serious crimes, including torture. These reports and investigations underscore the need to examine in much greater depth the systems and institutional decisions behind illegal and immoral aspects of U.S. counterterror policies and practices.

The United States has laws that are meant to promote government transparency and disclosure; it has a clear legal framework for prosecuting the crime of torture; it also has longstanding respect for the rule of law and a stated commitment to hold torturers accountable. Yet, when it is a matter of its own agents' wrongdoing, as well as involvement by political figures at the highest level, the government's interest in accountability seems to evaporate without much protest.

The apparent reluctance of those who currently have authority to hold rights violators to account - the President, Department of Justice, and Congress - has more to do with politics than with the existence of suitable mechanisms. In this respect the United States shares some of the challenges faced by other countries that have had to come to terms with their agents' serious transgressions of human rights.

In 2003 the Peruvian Truth and Reconciliation Commission released a report examining a 20-year period in which the state responded to systematic acts of terror by illegal armed groups with unlawful detentions, forced disappearances, torture, extrajudicial killings and other crimes. "One consequence of the internal armed conflict in the political arena consists of the moral decay into which the country sank," the commission reported. "In effect, the way in which the political forces and large sectors of public opinion faced those years - with indifference, tolerance for human rights violations, and a willingness to exchange democracy for security as the cost of ending the conflict - opened the door to autocracy and impunity."

In Peru, obtaining accountability required confronting divided public opinion, serious national security threats and unpopular victims - including terrorists. Yet, six years after the commission's report, a number of police, military officials and even the former president, Alberto Fujimori, are behind bars. Accountability may come late, but it responds to an insistent demand for a genuine demonstration that even the powerful are not above the law.

The United States needs to take this lesson to heart and find the courage to hold torturers - and those who enabled, tolerated, and covered up their abuses - to account.

It is relatively easy for a powerful nation to shrug off its own actions as "policy decisions gone wrong" rather than focus on the reality that these decisions unleashed torture and other cruel, inhuman and degrading treatment. Most countries dealing with torture and other serious crimes while upholding a commitment to democratic values and human rights face commanding arguments about why no further accounting is required. Even those who would recognize the value of accountability in other circumstances say the facts are already known, that addressing abuses is politically charged and divisive, that the priority must be to move forward and leave a troublesome past behind.

Experience shows, however, that when serious, comprehensive inquiries are undertaken, they reveal institutional failings and a dimension and gravity of crimes which, in fact, were not fully known.

Accountability for serious crimes through prosecutions based on the evidence, not on political vengeance, strengthens the rule of law and contributes to forward-looking change in practice and policy.

Accountability efforts benefit society by ensuring that debate and action are based on facts and human faces, rather than on ideology and fear.

Since abuses committed in the detention and interrogation of terrorism suspects have mostly not directly affected U.S. citizens, the impetus for accountability can seem remote, and the victims unsympathetic. This is in part a result of the secrecy, fear and overbroad justifications used to drive the country to violate its founding principles.

Too often, to the U.S. public, the means adopted by government in the name of national security are just words, not actions with long-term human consequences. The government has sought to justify abuses and obscure their nature, using euphemisms like "enhanced interrogation" to cover acts of torture and other mistreatment. Many may be troubled by the abuses that have surfaced, but U.S. constituents do not have to look detainees in the face or hear their stories. That distance fosters ambivalence, aided by a general refusal to incarcerate detainees in U.S. prisons or allow those who are absolved to be released in the United States. But not only does torture affect individuals and their families directly; by demeaning the humanity of prisoners in detention, the U.S. also dehumanized its own young soldiers and interrogators and tainted its intelligence community, affecting society's legal underpinnings and the country's perception by other nations. These consequences will haunt the United States for years to come.

Where violations have been massive or systematic, it is futile to delay accountability until there is a national consensus about truth and justice. In Chile, for example, Gen. Augusto Pinochet obtained 44 percent of the popular vote in a 1988 plebiscite, which led to the restoration of democracy. Many of his supporters believed that the abuses committed under his regime were necessary at the time. Yet, over the years, Chilean courts have successfully prosecuted military and police agents who tortured and killed detainees or "disappeared" political opponents. Those now in prison include the director of the secret police that functioned under Pinochet's command. Two truth commissions - one on deaths and disappearances and one on torture - also helped to shift public opinion. By 2004, a Fundación Futuro poll showed that 81 percent of Chileans thought that the truth commission processes helped to prevent recurrence of abuses.

Chile and Peru both teach us that courageous action rather than national consensus are more likely to drive accountability forward and that full accountability requires a longer term vision and an array of tools. These include an independent criminal investigation that focuses on those most responsible for systematic abuses; action by professional and governmental ethics committees; systematic declassification of information; and an independent and credible inquiry that can provide a comprehensive picture of the system that enabled abuses, their scope, and the human and political consequences.

Finally, full accountability must include transparent, institutional reforms and reparative justice mechanisms, such as compensation, rehabilitation programs, and opportunities for falsely accused prisoners to clear their names.

In the last 25 years the international community has determined that some crimes are too egregious to go unpunished. The U.S. has committed to and encouraged that trend by enacting its own anti-torture laws and pressuring other states to bring torturers to account. As Juan E. Méndez, past president of the International Center for Transitional Justice and long-time human rights advocate, notes in a recent interview, "It stands as an incredibly distorted and hypocritical position for the United States to push for accountability everywhere around the world and not to want to make its own state agents accountable when they have committed very serious crimes like torture."

Accountability (PDF) is necessary if the U.S. is to look forward with clarity and credibility. The U.S. should not allow short-term political interests to hold justice and accountability hostage. Accountability is more about courage and political will than about the kind of consensus required for other government actions.