As the Obama administration settles in, the US at long last begins an anguished debate on acknowledging the abuses and settling scores with those who betrayed fundamental US values and may have violated US as well as international criminal laws.
The extent to which President Bush's lawyers tried to accommodate the ''dark side'' of US foreign policy is apparent from legal memos released by the Justice Department a few days ago, which make for harrowing reading. They have generated widespread indignation.
People have a powerful sense of justice for the satisfaction of which they are prepared to pay a cost if need be. Where wrong has been seen to be done and the decent opinion of mankind has been outraged, punishment is demanded. In a globalised world with an internationalised human conscience, justice has a global domain. Citizens expect and demand accountability for overseas and domestic acts of criminality and foreigners demand it for criminal acts committed within domestic jurisdictions. Where wrong has been done to fellow-citizens, and institutions and regimes in whose jurisdictions the crime was committed are unwilling or unable to bring perpetrators to justice, people want their own governments to reach on to the world stage to exact justice.
President Bush tapped into these sentiments in the immediate aftermath of 9/11 when he promised that whether the murderers came to justice, or justice came to them, justice would be done. How fitting, then, that those who exploited the post-9/11 fear to take him down the wrong turn to violate fundamental American precepts and international laws against torture must now themselves fear justice.
President Obama is right in wanting to move forward and not look back. But this cannot be done without some public accounting, domestic or international, for past criminal misdeeds. Obama is correct, too, in insisting that operatives who engaged in certain practices in the belief that they had been provided legal cover are not culpable. But this merely draws attention to the moral and legal responsibility of those who provided the cover by twisting or violating US and international laws.
Failing to bring them to account, while magnanimous and prudential in intent, will not satisfy the instinct for justice that must be seen to be done and could also pave the way for outsiders, especially Europeans, to launch their own criminal probes against leading US officials.
When, after his 16-month arrest, General Augusto Pinochet was sent back from London to his native Chile, Geoffrey Robertson, a constitutional lawyer, was asked whether it was likely the general would spend any time behind bars. ''No,'' he replied, ''but a fate worse than prison awaits him. He will spend the rest of his days surrounded by lawyers'' which is exactly what happened.
The Spanish judge who hounded, humiliated and ultimately humbled the Chilean dictator was Baltasar Garzo{aac}n. He now has the Bush torture enablers in his cross-hairs. Although Spain has separation of powers and the issue is unresolved, the Spanish Government does not favour pursuing this case and is vulnerable to pressure that will continue to be exerted by Washington.
When Judge Garzo{aac}n started criminal proceedings against Pinochet in the mid-1990s on the basis of a complaint filed by a human rights NGO, he was widely derided as a latter-day Don Quixote taking on a faraway general. Yet ''universal jurisdiction'' gave him the legal capacity to bring to justice human rights violators anywhere in the world. That principle will continue to animate European human rights campaigners if no progress is made in bringing the torture enablers to justice. While successful conviction remains rare, it does complicate the travel plans of those being watched by foreign prosecutors.
Pinochet was the first former head of state arrested abroad for crimes committed at home. The recent arrest order for Sudanese President Omar al-Bashir issued by the International Criminal Court made world headlines but also showed up a dangerous faultline in international politics. While Westerners applauded his indictment, most developing countries find the ICC's focus on Africa deeply troubling. This enabled Bashir to make almost a triumphal appearance at the Arab League summit in brazen defiance of the arrest warrant.
The alternative to criminal prosecution is a truth and reconciliation commission, along the lines of the successful South African example after apartheid. In arguing against a truth commission to investigate torture practices under Bush, Senator Arlen Specter said ''this is not Latin America''. Well, in some ways it is. ''Enhanced interrogation techniques'' were originally exported by US specialists to Latin American military regimes, including Pinochet's, in the 1960s and 1970s to help fight the enemy of the day communism. They were then applied at home to fight the new enemy of choice, terrorism.
Should there be no public accountability for possible crimes of torture authorised by senior US officials in either domestic or international fora, there will be a doubly deleterious consequence. Would-be torturers will be undeterred from similar or worse conduct in future, knowing they can escape the consequences of their criminal behaviour. And the embryonic institutions of international criminal justice like the ICC will be compromised, perhaps fatally, as examples of judicial colonialism where only the Africans and the defeated can be prosecuted, rather than vehicles of international justice that does not discriminate between the powerful and the weak, the rich and the poor countries that is, between the West and the rest.
For the sake of the victims, to atone for the collective collapse of the nation's moral compass, to restore America's tarnished reputation and moral authority, and to reinforce the institutions of international criminal justice, the torture enablers must be prosecuted either domestically or internationally; or else there must be a credible truth commission with the power to pardon the penitent and punish the unrepentant.
Jorge Heine, a former ambassador of Chile to South Africa and India, is Professor of Global Governance at the Balsillie School of International Affairs, whose founding director is Ramesh Thakur, a former UN Assistant Secretary-General. Both are Distinguished Fellows at The Centre for International Governance Innovation in Waterloo, Ontario.