The word "retribution" is a red herring: we say it means justice; they say it means vengeance. We can shout (and are shouting) until we’re blue in the face that the sociopaths who composed the torture memos need to be prosecuted because of the need for retribution, accountability, or justice, but we’ll continue to get sidetracked and scolded that we should look forward, not backward...
So, looking forward instead of backward, what we need to do is... prosecute. But not (just) for justice, but for deterrence.
Has anyone noticed that this "forward not backward" theme has somehow morphed into a pseudo- intellectual, if not moral superiority? The implication seems to be that those of us who want justice are somehow petty, reactionary small-thinkers, while the best and brightest, who can see more clearly, know that our best days are still ahead and that only by forgetting the past can we reach them.
Referring specifically to the Rahm Emanuel interview, there are 2 major flaws in Rahm’s thinking here.
The first is that there is somehow a choice which must be made between looking backward and looking forward. There is no such choice. I normally (still) detest comparisons of the Obama administration with Bushco, but... what a Bushian false dichotomy. You’re either looking backward or you’re looking forward? Our President is a constitutional scholar and Lincoln expert; in some of his finest speeches, he is practically brimming with the combination of a keen understanding of history and a vision for the future. He, as well as anyone, should be aware of how hollow a forced choice between looking backward and looking forward sounds... Our best days are hopefully indeed still ahead, but we don’t need to sweep the past under the carpet to reach them.
The 2nd flaw is more important. Even if we accept the call to look forward, not backward; even if we accept the call to forego justice, we still must prosecute:
In the end, the clearest, most compelling reason to prosecute the torture authors is straight out of Criminal Justice 101: Deterrence.
Deterrence, by definition, is forward-thinking. Deterrence is classified both in terms of "specific," i.e. to preclude the specific offender from offending again, and also (even more importantly in this case) "general," i.e. to dissuade potential future offenders from offending in the first place.
As Nick Grono of the International Crisis Group pointed out:
Prosecutions have long been believed to have the power to prevent future atrocities. The argument is that if leaders genuinely believe that they are likely to be prosecuted if they commit atrocity crimes, then this will provide a strong (though not always overwhelming) incentive against such conduct. Certainly the founders of the ICC believed so, setting out in the Rome Statute’s preamble their determination "to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes" The benefit of deterrence accrues overwhelmingly to the international community as, to the extent it works, it prevents future atrocity crimes around the world. For local actors, the benefits are more focused, preventing a return to conflict by new leaders anxious to avoid the fate of their predecessors. Importantly, fear of prosecution can also prolong current conflicts a concern to both local and international actors if leaders threatened with such an outcome entrench themselves to ensure they don’t end up in the clutches of a criminal court.
Crisis Group
Without a system of deterrence, the main threat is not that those who have committed the crime will commit the crime again. The larger threat is that others will feel free to commit the crime, knowing that there is no punishment for doing so.
President Obama is rightfully concerned about America’s image and reputation on the world stage: what an amazing message it will send if we hold our ideals so high that we hold ourselves accountable. And conversely, what a massive disappointment if, in the end, our proudest national moment in decades is tarnished not just with the stain of hypocrisy, not just of moral ambivalence, but of a facilitation of future suffering. If torture carries no risk of punishment, then what is to stop the torturers? This message is certain to be heard not just domestically, but worldwide.
Count me among those who does feel the need for justice. I believe the wounds inflicted by the Bush administration will heal faster if Yoo and Bybee are held accountable for their actions. And since I still trust our President as a leader of genuine good will, I would be honestly surprised if on a personal level President Obama did not feel the same way.
But OK, let’s forget about justice for past wrongs, if the perceived upside is not considered to be politically worth the downside. Let’s focus on the future, if looking at the past is considered to be a waste of energy and vision. In any event, we still must prosecute the torture-mongers. If not for justice then for deterrence. If not to address past sins then to deter the occurrence of future ones. If not to heal the degradation and trauma of hundreds of waterboardings in a month, then to prevent this from happening in the future. .
OK Mr. President, let’s look forward, not backward... When you meet your Ghost of Christmas Future, will you know that you did everything in your power to prevent future atrocities? Or will the Ghost lead you past torture chambers of a future administration, the torturers and their facilitators more confident than ever that they have nothing to fear?