The leak of a secret report by the International Committee of the Red Cross about the torture of detainees 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 United States Senate Judiciary Committee about the pros and cons of setting up a truth commission (TC) to investigate such violations point in one direction. Floated first in academic circles, and proposed later in a Georgetown University speech by Senator Patrick Leahy (Democrat-Vermont), chairman of this committee, the idea is gaining support in Congress and in public opinion.
According to a recent poll, in the US today, 38 per cent supports prosecuting the culprits of such violations, whereas 24 per cent favours investigating the latter by means of 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 at the highest levels of the US government, were not the result of a 'few rotten apples'. They were a systematic policy expressed in explicit instructions to the interrogators of the US armed forces and the CIA, to obtain 'actionable intelligence'.
And to use torture, such as waterboarding, beatings, food deprivation and placement in coffin-like boxes (all described in detail by the ICRC report), one must add forced 'disappearances', kidnappings, and 'renditions'.
According to some legal experts, these practices would constitute war crimes. By engaging in them, the US would be violating international treaties to which it is party.
Some have opposed prosecution on the ground that these 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. It would thus be unfair to prosecute now, in a very different political environment, those who were government officials then.
Senator Leahy, a former prosecutor, has cited as a precedent a commission established in the '70s by Senator Frank Church to investigate abuses by the intelligence agencies.
Representative John Conyers, chairman of the House Judiciary Committee, has submitted a bill (H.R. 104) to create a National Commission on Presidential War Powers and Civil Liberties to investigate these violations. President 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.
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.
That is why in the '80s, Uruguay approved an amnesty law that condoned all such violations under military rule. An alternative approach was used by Argentina. The government of President Raul Alfonsin 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 countries, such as Chile, South Africa, Peru, El Salvador, Guatemala, Uganda and others, established TCs - a policy tool that aims for a 'middle-road' between the extremes of total amnesty and special prosecutions.
Handle sensitive issues
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. Their hybrid condition and ensuing flexibility makes them ideal to deal with such sensitive issues.
The Truth and Reconciliation Commission (TRC), chaired by Raul 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 US under President Bush was not an authoritarian regime or an exclusionary democracy. But serious human rights violations were committed, and an elaborate legal scaffold for these violations was constructed.
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.
The wrong-headed conclusion that it was these 'enhanced interrogation techniques' that prevented another 9/11 might be invoked again in the not-too-distant future.
Appointing a TC tasked with finding out exactly what happened in this regard from 2001 to 2008 does not prejudge the issue. 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.
Jorge Heine holds the chair in global governance at the Balsillie School of International Affairs and is a distinguished fellow at The Centre for International Governance Innovation in Waterloo, Ontario.