The leak of a secret report by the International Committee of the Red Cross on the torture of 14 "high value" detainees in CIA custody (February 2007) has brought to the fore the issue of what to do about the human rights violations committed under the Bush administration.

The public hearings held some weeks ago by the Senate Judiciary Committee about the pros and cons of setting up a Truth Commission (TC) to investigate such violations point the way in one direction. Floated first in academic circles and proposed later in a Georgetown University speech by Senator Patrick Leahy (Democrat-Vermont), chairman of the committee, the idea is gaining support in Congress and among the public. According to a recent poll, in the U.S. today, 38 per cent supports prosecuting the culprits of such violations, whereas 24 per cent favours investigating them by an independent entity (such as a TC).

Torture practices (ending in some cases in death) against individuals suspected of having been associated with 9/11, justified and rationalised at the highest levels of the government, were not the result of "a few rotten apples" or "some excesses." These were the product of a systematic policy expressed in explicit instructions to the interrogators of the U.S. Armed Forces and the CIA to obtain "actionable intelligence." The Office of Legal Counsel in the Justice Department produced several memos that set aside a number of techniques from the list banned by the American Anti-Torture Act.

And to torture by waterboarding, beatings, food deprivation and placement in coffin-like boxes (all described in detail in the ICRC report), one must add forced "disappearances," kidnappings, "renditions" and other such nefarious exercises. According to some legal experts, these practices would constitute war crimes. By engaging in them, the U.S. would be violating international treaties to which it is party.

Some have opposed prosecuting the torturers and their bosses on the ground that their actions would have been the natural outcome of the rather passionate anti-terrorist climate that emerged in late 2001 after 9/11. Citizens were ready to do anything to find those responsible for the attacks on the World Trade Center and the Pentagon, and to prevent similar attacks. Given those circumstances, it would be unfair to prosecute now, in a very different political environment, those who were government officials then.

Precedent cited

Senator Leahy, a former prosecutor, has cited as a precedent a Commission established in the 1970s by Senator Frank Church to investigate abuses by the intelligence agencies. House Speaker Nancy Pelosi, and Representative John Conyers, chairman of the House Judiciary Committee, are also in favour of moving forward on this issue. Mr. Conyers has submitted a bill (H.R. 104) to create a National Commission on Presidential War Powers and Civil Liberties to investigate these violations.

President Barack Obama and his Attorney-General Eric Holder, who have condemned these practices, have given to understand that they do not support a Truth Commission, saying they would rather look ahead. The present government would have its hands full with the financial crisis and the wars in Iraq and Afghanistan, to add the prosecution of former Bush government officials, and the ensuing political polarisation.

Yet the American Civil Liberties Union has called for the appointment of a special prosecutor to check into the allegations of torture at CIA secret prisons. As its executive director, Anthony D. Romero, put it, "Allegations of crimes are not a discretionary matter."

This debate is not new. In transitions from authoritarianism, the newly emerging democratic governments have also had to confront the legacy of an evil past. Many countries in Africa, Asia and Latin America, as well as in Europe, have faced the same dilemma. Given other priorities, it is tempting to sweep past human rights violations under the rug. Much as President Obama today, the new democratic regimes have had to face a demanding agenda, including institutional rebuilding, payment of the "social debt" and jump-starting economic growth.

That is why in the 1980s, Uruguay approved an amnesty law that condoned all such violations under military rule. An alternative approach, modelled after the Nuremberg trials, was used by Argentina. The government of President Raúl Alfonsín set up special tribunals to prosecute the crimes of the military junta that ruled the country from 1976 to 1983, tribunals that convicted the generals and sent them to prison. None of these approaches worked. In Uruguay, a number of plebiscites were held to revisit the issue and it still refuses to go away. In Argentina, several military uprisings forced the pardon and release of the former members of the junta.

It is for that reason that Chile, South Africa, Peru, El Salvador, Guatemala, Uganda and many others established TCs, a policy tool that aims for a "middle-road" between the extremes of total amnesty and special prosecutions. TCs are independent but officially sanctioned bodies tasked with examining the human rights violations committed during a certain period of time. They are not tribunals, and, as a rule, do not have judicial powers. Formed by eminent personalities representing a broad cross-section of society, they are charged with delivering a report, generally within a six-month to two-year period.

Their hybrid condition and ensuing flexibility makes them ideal to deal with such sensitive issues. Their reports constitute an official acknowledgment of the damage and suffering caused by agents of the state. The information thus collected makes it also possible to make a much more informed decision as to whether to prosecute the culprits or not.

The Truth and Reconciliation Commission (TRC) chaired by Raúl Rettig in Chile (1990-1991) played a key role in facilitating that country's successful transition to democracy. Something similar could be said about the TRC chaired by Archbishop Desmond Tutu in South Africa (1995-1998), which was so important in allowing South Africans to come to terms with their apartheid past.

The U.S. under President Bush was not an authoritarian regime nor an exclusionary democracy. But serious human rights violations were committed, and an elaborate legal scaffold for these violations was concocted, something especially serious in the oldest democracy. This has become especially evident from the recent memoranda on the subject by the Office of Legal Counsel of the time, recently released by the Justice Department.

Alluring but misleading

The notion that it is best to "forgive and forget" is an alluring but ultimately misleading one. In not coming to terms with such wounds to the democratic body politic, and not giving formal, official recognition to these violations, these wounds continue to fester. In the words of the former Chilean President, Ricardo Lagos, upon launching Chile's National Commission on Political Prisoners and Torture in 2003, "there is no tomorrow without yesterday." The wrongheaded conclusion that it was these "enhanced interrogation techniques" (a remarkable euphemism in itself) that prevented another 9/11 might be invoked again in the not-too-distant future. Given no clean break with such inherently abhorrent practices, they might very well be revived.

The paradox of the lively debate this has triggered in the U.S. is that many supporters of President Bush, like Senator Arlen Specter (Republican-Pennsylvania) - who revealingly said, "this is not Latin America" - have stated prosecuting the culprits would be preferable to a TC. Traditionally, those who defend the culprits of these violations tend to consider TCs a lesser evil than the criminal prosecution of the Augusto Pinochets of this world.

The reason is obvious. Judicial proceedings are not the best mechanism to establish the historical truth. A good lawyer can distort the facts to the point that they become unrecognisable. TCs, on the other hand, have turned out to be very potent instruments to establish what really happened in black historical periods, be it in Peru under Alberto Fujimori or in East Timor under Suharto. And that is truly frightening for those who would rather avoid throwing light on what the then Vice-President, Dick Cheney, called the "dark side" of the U.S. from 2001 to 2008.

While at this point prosecuting government officials involved in torture might seem rash, appointing a TC tasked with finding out exactly what happened from 2001 to 2008 does not prejudge the issue and allows the country to take the full measure of what transpired. Once the report is in, there will be much better evidence available to make an informed decision. It may very well be that the government decides not to prosecute. But the TC's activities and the report will have provided the clean break that the body politic needs, cutting the umbilical cord with such an evil past.

The opinions expressed in this article/multimedia are those of the author(s) and do not necessarily reflect the views of CIGI or its Board of Directors.