January 12, 2009
The following op-ed by Harvard Law Professor Charles Fried, “History’s Verdict,” appeared in the January 10, 2008, edition of the New York Times.
In the wake of the Abu Ghraib revelations, the White House counsel, Alberto Gonzales, testified before the Senate Judiciary Committee in 2005 that “we care very much about finding out what happened and holding people accountable.”
There is now ample reason to believe that Mr. Gonzales was among those at the highest level of government who allowed Americans to engage in torture and cruel, inhumane and degrading treatment of those in our custody. Mr. Gonzales’s misleading and cowardly testimony certainly deprives him of any claim to our indulgence, but nonetheless neither he nor any of the others who participated in this abuse of detainees should be criminally prosecuted — not for their sakes but for the country’s.
Some argue that torture is justified if our survival is threatened, but even apart from the elasticity of this justification, it is flawed because it depends on an equivocation. Our physical survival is not what is of overriding moral importance (people give up their lives all the time for some higher value) but our survival as decent human beings acting for a decent society. And we cannot authorize indecency without jeopardizing our survival as a decent society.
President-elect Barack Obama understands this, as did Senator John McCain, and we can expect that the practice will stop (if it has not already) in the incoming administration, for the election was a definitive repudiation of the Bush administration and its principal characters. There are those for whom this will not be enough to vindicate the values of decency and humanity that the Bush administration flouted as it defended us against further terrorist attacks. There are those who will press for criminal prosecutions, but this should be resisted.
It is a hallmark of a sane and moderate society that when it changes leaders and regimes, those left behind should be abandoned to the judgment of history. It is in savage societies that the defeat of a ruling faction entails its humiliation, exile and murder.
In contrast, by turning away from show trials and from the persecution of even the worst of their past regimes’ miscreants, new democracies like Spain and South Africa showed that they had moved decisively beyond a politics of hate and revenge. To South Africa and its Truth and Reconciliation Commission compare the barbarism and desolation of Robert Mugabe’s Zimbabwe.
Think too of the succession of Roman emperors, of the Soviet Union of Lenin and Stalin, or of the night of the long knives when Hitler eliminated his closest associates and rivals. It is only an exaggeration to see the urge to criminalize our soon-to-be-former leaders, to make into courtroom drama the tragedy of the last eight years, as an extension of this same practice.
Of course ours would not be Stalin-type show trials, but they would have a kind of absurdity distinctive to our own over-lawyered culture. Consider what criminal prosecutions would really look like. First, we would have the investigations, the subpoenas, the depositions and grand juries, much of this directed at tripping up the targets, so that they can more handily be prosecuted for the ancillary offenses of making false statements, perjury or obstruction of justice.
Then, we would have the trials themselves — protracted, interspersed with motions and delays, obsessively followed by cable channels filling in the many dull spots with endless commentary from teams of so-called experts, the whole spectacle stupefying rather than edifying the public and doing little to enhance respect for the law. A feast for lawyers and legal junkies, criminal prosecutions would be an embarrassment and distraction for the rest of the society that wants to get on with solving the great problems of the present and the future.
But should the high and mighty get off when ordinary people committing the same crimes would go to prison? The answer is that they are not the same crimes. Administration officials were not thieves lining their own pockets. Theirs were political crimes committed by persons whose jobs were to exercise the powers of government on our behalf. And the same is even truer of the lower-level officers who followed their orders.
And what about Nuremberg and the trial of the Japanese war criminals? Were those a mistake, too? Not at all. Those were crimes against whole populations in wars of aggression. An analogous point holds for the criminal leaders of Rwanda, Serbia and Sudan.
If you cannot see the difference between Hitler and Dick Cheney, between Stalin and Donald Rumsfeld, between Mao and Alberto Gonzales, there may be no point in our talking. It is not just a difference of scale, but our leaders were defending their country and people — albeit with an insufficient sense of moral restraint — against a terrifying threat by ruthless attackers with no sense of moral restraint at all.
Our veneration of the rule of law makes us believe that courts and procedures and judges can put right every wrong. But we must remember: our leaders, ultimately, were chosen by us; their actions were often ratified by our representatives; we chose them again in 2004. Their repudiation this Nov. 4 and the public, historical memory of them is the aptest response to what they did.
Charles Fried, a professor at Harvard Law School, is the author of “Modern Liberty.”