Should George W. Bush, Dick Cheney and Others Be Jailed for War Crimes?

Every nation that institutionalizes torture, as the United States has done, selects specific groups of people as legitimate targets for its application. In the days of Operation Condor, Chilean torturers called their victims “humanoids” to distinguish them from actual human beings. Surely, though, the United States hasn’t done that? Surely, there’s no history of the torture of particular groups? Sadly, of course, such a history does exist, and like so many things in this country, it’s all about race.

The practice of torture in the U.S. didn’t start with those post-9/11 “enhanced interrogation techniques,” nor with the Vietnam War’s Phoenix Program, nor even with the nineteenth century U.S. war in the Philippines. It began when European settlers first treated native peoples and enslaved Africans as subhuman savages. As southern farmers started importing captured Africans to augment their supply of indentured English labor, they quickly realized that there was little incentive for those slaves to work — none but the pain of whippings, mutilations, and brandings, and the threat of yet more pain. Torture and slavery, in other words, were fused at the root. From the first arrival of black people on this continent, it has been permissible, even legal, to torture them.

And it didn’t stop with emancipation. After the end of slavery, southern states began the practice of convict leasing — arresting former slaves and then their descendants, often on trumped-up charges, and renting them out as labor to farmers and later coal mine owners who had the power and legal right to whip and abuse them as they chose.

Then there’s lynching. Many people think of it as an extrajudicial death by hanging.  As it was practiced in the Jim Crow South, however, it was a form of public, state-approved torture, often involving the castration or disembowelment of the living victim, sometimes followed by death by fire. Lynching thus continued the practice of treating black minds and bodies as legitimate targets of torture. So maybe we shouldn’t be surprised that, of the more than two million prisoners in the United States today, 40% are black, while the U.S. population is only 13% black. 

Here’s the problem, then. When we say that putting George W. Bush, Dick Cheney, and other top officials in their administration in prison for war crimes would be justice, we endorse a criminal justice system that is more criminal than just, and where torture is a daily occurrence.

Do we want to do to Bush, Cheney, and their accomplices essentially what they did to their victims?  There is, of course, a certain appeal to the idea of someday seeing such powerful white men among the suffering, tortured millions in our prison system, or even — like the supposed “dirty bomber” José Padilla and Abu Zubaydah — in perpetual solitary confinement.

And yet, would this truly provide even a facsimile of justice, given that American prisons are hardly instruments of justice to begin with? Those opposed to the acts at the heart of America’s never-ending war on terror were heartened when President Obama ordered the CIA “black sites” dismantled globally. We continue to demand the closing of Guantánamo (something that looks increasingly unlikely to happen in his presidency). How, then, can we find justice through a prison system that uses similar methods on an everyday basis here in the U.S.?

Forty Years to Go?

And then, of course, there is the question: Whom should justice truly serve?

The first answer is: the victims of the “war on terror,” including those who were tortured, those detained without trial, the civilian “collateral damage” of the wars in Afghanistan and Iraq, and the “unintended” victims of drone assassinations. Then there are all those in the rest of the world who have to live with the threat of a nuclear-armed superpower that has in these years regularly refused to recognize the most basic aspects of the rule of law.

Many who work with survivors of organized repression like Operation Condor say that their primary desire is not the punishment of their oppressors but official acknowledgement of what happened to them. In his New Yorker article, Wechsler, for instance, pointed out that, for the victims of torture, accountability may not be identical to punishment at all.

“People don’t necessarily insist that the former torturers go to jail — there has been enough of jail — but they do want to see the truth established… It’s a mysteriously powerful, almost magical notion, because often everybody already knows the truth — everyone knows who the torturers were and what they did, the torturers know that everyone knows, and everyone knows that they know.”

Seeing “the truth established” was the purpose behind South Africa’s post-apartheid Truth and Reconciliation Commission. Torturers and murderers on both sides of the anti-apartheid struggle were offered amnesty for their crimes — but only after they openly acknowledged those crimes. In this way, a public record of the horrors of apartheid was built, and imperfect as the process may have been, the nation was able to confront its history.

That is the kind of reckoning we need in this country. It started with the release of a summary of the Senate Intelligence Committee’s report on the CIA’s torture program, which brought many brutal details into the light. But that’s just the beginning. We would need a full and public accounting not just of the CIA’s activities, but of the doings of other military and civilian agencies and outfits, including the Joint Special Operations Command. We also would need a full-scale airing of the White House’s drone assassination program, and perhaps most important of all, a full accounting of the illegal, devastating invasion and occupation of Iraq.

Justice would also require — to the extent possible — making whole those who had been harmed. In the case of the “war on terror,” this might begin by allowing torture victims to sue their torturers in federal court (as the U.N. Convention against Torture requires). With one exception, the Obama administration has until now blocked all such efforts on national security grounds. In the case of the Iraq War, justice would undoubtedly also require financial reparations to repair the infrastructure of what was once a modern, developed nation.

We’re unlikely to see justice in the “war on terror” until that cruel and self-defeating exercise is well and truly over and the country has officially acknowledged and accounted for its crimes. Let’s hope it doesn’t take another 40 years.

Rebecca Gordon, a TomDispatch regular, teaches in the philosophy department at the University of San Francisco. She is the author of American Nuremberg: The U.S. Officials Who Should Stand Trial for Post-9/11 War Crimes (Hot Books). Her previous books include Mainstreaming Torture: Ethical Approaches in the Post-9/11 United States and Letters from Nicaragua.

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