Opinion Torturing for America

Part 2: Obama Doesn't Know How to Deal with the Past

Germany's Code of Crimes against International Law is equally strict in its treatment of torture. Under the statute, as under similar statutes in other European countries, torture is considered an international crime which can be prosecuted even if it is committed in another country. Citing this so-called principle of "universal jurisdiction," Spanish prosecutor Baltasar Garzón has now sought the prosecution on criminal charges of six former US officials who are allegedly behind the torture scandal. And the longer Obama delays taking the -- legally unavoidable -- step of bringing charges against senior officials from the Bush administration and those who carried out the torture, the less credible becomes the reasoning of German Federal Prosecutor Monika Harms, who has argued that German courts have no business intervening as long as the American judicial system is functioning properly.

President Barack Obama orders the closure of Guantanamo.

President Barack Obama orders the closure of Guantanamo.

"We need to look forward," Obama said. These are the words of someone who doesn't know how to deal with the past. What happens if he does the unavoidable? An indictment against those issuing the commands and those receiving the commands, against those who participated in and those who justified the darkest chapter in the war against terror, would be an indictment of the American system. That system includes the steadfast belief that the country's elected leaders have the best interests of the nation at heart -- and that there is nothing wrong with taking action to champion those interests. In other words, if torture was committed, it was committed for America.

The notion that international treaties, and European positions on human rights, could impose limits on national sovereignty, or that a foreign power or non-American values exist that could question what happens in the United States does not fit into this system. "We don't have the same moral and legal framework as the rest of the world, and never have. If you told the framers of the Constitution that what we're after is to, you know, do something that will be just like Europe, they would have been appalled." These are the words of Supreme Court Justice Antonin Scalia, who was involved in the decision on whether to close the torture facility at Guantanamo.

A Holder of Unlimited Power

Scalia is a conservative -- as conservative as the American way of thinking. That way of thinking is still today based on the Constitution, which, in its original form, did not even include a reference to human rights and tolerated slavery. And although the US Constitution guarantees comprehensive civil rights and liberties today, such as freedom of the press, it contains a relatively weak delineation of the government's obligation to abide by the law. A legal concept like "human dignity," which makes it illegal in Germany to even threaten to use torture, is unknown in the United States. Whether a person who commits torture can in fact be tried in a court of law is left to the discretion of the federal attorneys, who are appointed by the president. They are in the hands of the president. And he has the power to pardon anyone -- including himself.

The holder of such unlimited power is incapable of distancing himself from a system of which he himself is a part. This is both a benefit and a drawback of any democratic country: Elected officials change, but the state remains the same. Unlike a change of power in a dictatorship, when the injustices committed by a previous dictator can be dealt with at one go, in a democracy a newly elected leader has to tread carefully when it comes to the legal opinions of his predecessor.

This is why Obama, a Democrat, is promising the people at the CIA that they will not be prosecuted, because when they tortured people, they did so strictly within the framework of the then-administration's interpretation of the law. This is a concept that is not entirely foreign to European legal thought. Under German criminal law, for instance, the actions committed by a person who could have assumed his behavior was permissible, are considered excusable, albeit not justified.

Nevertheless, the idea that "what was lawful then cannot be unlawful today" -- as the late Baden-Württemberg Governor Hans Filbinger, who had been a judge during the Third Reich, famously told SPIEGEL in a 1978 interview -- does not always apply. A serious injustice can still be deemed an injustice, even if the powers-that-be had declared it legal. Ironically, this famous principle, the fundamental concept of international criminal law, was first proclaimed by an American.

Parallels with Nuremberg

Robert Jackson, a man no less charismatic than Barack Obama, said it to the Germans against the backdrop of the smoldering ruins of World War II. Jackson was the chief US prosecutor at the Nuremberg trials of Nazi war criminals, and the speech he gave was so powerful that it reduced his audience to tears. Never before had an American spoken as beautifully as Jackson. "The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated," Jackson said in his opening remarks. The hearts of the disenfranchised, the demoralized, the starved and the persecuted of the Nazi regime were behind the man who brought the surviving Nazi leaders to the gallows, just as the hearts of Europeans are behind Barack Obama today.

Of course, Jackson was charged with an undertaking far less complicated than Obama's. Jackson was speaking, not at the time of a new democratically elected administration, but at the zero hour of a new German legal system. Most of all, he was not talking about America, but faraway Germany. Moreover, the wrongs committed by the Nazi regime are clearly incomparable with the human rights violations of the Bush administration.

Nevertheless, the comparison with Nuremberg is not irrelevant for many in Obama's America. Christopher Dodd, the Democratic senator from Connecticut, boldly confronted the Bush administration when he said that "for 60 years, a single word has best captured America's moral authority and commitment to justice: Nuremberg." But now, he continued, "what we risk today is that future generations will look back at this time (…) and be able to capture the loss of America's moral authority and commitment to injustice also with a single word: Guantanamo."

Dodd is the son of one of Jackson's close associates at Nuremberg. As such, he is also familiar with a speech his father delivered to Congress, in which he quoted Justice Jackson at Nuremberg: "We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow."

Unlike Obama today, Jackson really was looking forward.

Translated from the German by Christopher Sultan


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