November 30th, 2008

Via Glenn Greenwald, an op-ed by Jack Goldsmith, one of the few civilian lawyers who served the Bush Administration at a high level and emerged with honour:

The people in government who made mistakes or who acted in ways that seemed reasonable at the time but now seem inappropriate have been held publicly accountable by severe criticism, suffering enormous reputational and, in some instances, financial losses. Little will be achieved by further retribution.

I’m gobsmacked.

Does the USA run a Scandinavian criminal justice system that aims to reform its few convicts with human kindness? Not in fact: it pays a lavish annual tribute to the Eumenides. According to the BJS,

On June 30, 2007 2,299,116 prisoners were held in federal or state prisons or in local jails.

This is the highest rate of imprisonment in the world. The USA executed 42 murderers in 2007, the majority of whom just happened to be poor Southern blacks; it jails petty drug dealers for 10 years without parole for a second offence of possession of 50 grammes of crack cocaine.

The offences we are talking about here are odious ones: conspiracies to commit war crimes. The Federal War Crimes Act of 1996 (18 U.S.C. 2441) provided, before it was eviscerated by repugnant and unsound redefinitions, that

Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

Does the “enormous reputational loss” suffered so far by say David Addington strike you as adequate retribution? Is he begging his bread on street corners in smelly castoff clothes, shunned by his old acquaintances, an object of endless public scorn? If we can’t get the hard prison time these men deserve, at least let them be utterly ruined, dragging out their days from enquiry to court, unable to travel for fear of arrest.

That said, it’s probably right to start with an enquiry – a full-dress Truth Commission with subpoena powers. Criminal trials serve two purposes: to award punishment fairly in each particular case, and to assert the rule of law in a public rite. The conviction of Scooter Libby for obstruction served the former but scarcely the latter, as only Beltway insiders and political junkies understood what was at stake. In prosecutions of Bushites for war crimes, the pedagogical exhibition of what they did would be promptly obscured by the legal smokescreen of OLC memos, executive interpretations, and dodgy immunity legislation (such as the Military Commissions Act of 2006), on which argument would largely turn. IMHO, and in this my opinion is much humbler than Dahlia Lithwick’s, it’s best to uncover and lay out before the American and world public an authoritative account of the facts. Only then, bolstered by public revulsion, should one go on to prosecute those primarily responsible.

No further pardons or immunity deals should be struck by Holder’s special prosecutor before the end of the inquiry. Let witnesses plead the Fifth if they like. In the prosecution phase, strike deals with underlings by all means.

What about the mercy Goldsmith awards with such facility? Possibly; but at the end of the legal process, not the beginning. Pardon should depend as much on the repentance of the guilty as on their mental state when they committed their crimes, and on the broader issue of the health of the constitutional order. It’s a profound dilemma whether this is best served by retribution or by mercy, never by simple forgetting.

At the end of the Oresteia, the greatest work of art in the Western canon on the problem of justice, Aeschylus has the Athenian jury split equally over the guilt of the undoubted matricide Orestes. He is acquitted by the casting vote of the presiding judge, the goddess Athena. President Obama, the Onion’s “black man in nation’s worst job”, will have to don Athena’s golden mask. He could start to prepare by reading the play*.

* I recommend Robert Fagles’ fine translation, but there are other modern versions on the Web.

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