War Crimes in a Punitive Age

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Posted in: Criminal Law

Do you want to know the real problem with criminal justice reform? If we cut through all the stories that now dominate the airwaves—all the chatter about bad police, underfunded defense lawyers, over-zealous prosecutors, and heartless prisons—it is this: Criminal justice reform, as it is taking shape, deliberately does nothing to alter the organizing philosophy that created and sustains the carceral state.

Like other expressions meant to describe governance in the United States—“the administrative state,” “the national security state,” “the bureaucratic state”—the carceral state provides a way to organize, distribute, and justify power in American society. It reflects a particular way to think about the world, a set of assumptions about human nature, individual responsibility, and the relationship between the individual and the state.

For a variety of reasons, some more forgivable than others, criminal justice reform does not challenge these underlying assumptions. It merely sands down the rough edges a bit, mostly, as I have written before, because those edges were snagging a few too many whites who had committed non-violent offenses. As long as this way of thinking dominates American policy, the carceral state will not only endure, it will become ever more deeply embedded in American life.

This is why I have written so often about the need to develop a unified, transformative vision of criminal justice. People who hope to change things for the better cannot continue to dwell unproductively on particular problems with the criminal justice system, though there are many. Instead, we have to articulate a different philosophy of criminal justice. Rather than wander forward from unprovable speculations about human nature and free will—a course that has led us so far astray—I try to envision the destination we hope to reach and build a criminal justice system that will take us there.

Sometimes, events provide an opportunity to put my money where my mouth is.

As regular readers know, I wear two hats: criminal justice theoretician, and post-9/11 practitioner. I was lead counsel in Rasul v. Bush, the first Supreme Court case challenging the detentions at Guantanamo, and now represent Abu Zubaydah, the first detainee cast into a secret CIA black site and tortured under the Bush Administration’s “enhanced interrogation program.” Zubaydah was the person for whom lawyers in the Bush Administration wrote the infamous “torture memo.”

The Senate Select Committee on Intelligence has described Zubaydah’s torture in excruciating detail. More recently, it was well summarized by Rebecca Gordon in The Nation. Anyone can read for themselves much of what the United States did to my client, though much more is not yet publicly known. It was horrific, far more brutal than generally understood or previously thought. Any fair reading of the record compels the conclusion that Zubaydah was tortured, within the meaning of domestic and international law. For me, and for Gordon, that is enough to condemn what was done.

But both Gordon and the Senate make a great deal of the gotcha: the United States tortured the hell out of Zubaydah based on a heaving pile of falsehoods and mistakes. “[H]ere’s the remarkable thing,” Gordon writes, “it was all a big lie. Zubaydah wasn’t involved with Al Qaeda; he was the ringleader of nothing; he never took part in planning for the 9/11 attacks. He was brutally mistreated and, in another kind of world, would be exhibit one in the war crimes trials of America’s top leaders and its major intelligence agency.”

There is no question that Zubaydah was the victim of war crimes. The entire CIA black site program was a global conspiracy to evade and violate international and domestic law. Yet I am firmly convinced there should be no war crimes prosecutions. The call to prosecute is the Siren Song of the carceral state—the very philosophy we need to dismantle.

The argument in favor of prosecution is beguilingly simple, as befits an ideology that goes unquestioned: Those who engineered and administered Zubaydah’s torture—and the torture of many others—broke the law (which is true), the crime is grave (also true), and society must make its judgment known (I agree). But why do we believe a criminal trial is the only way for society to register its moral voice? In fact, what makes us think a prosecution is particularly well suited to the task, let alone the best solution we can design? A saw is a wonderful tool, but not when you need a shave. Others make more trivial arguments. Prosecutions, they say, ensure that behavior like this will not be repeated, which of course is silly—if we could prosecute our way out of any crime problem, we long since would’ve achieved a crime-free society.

Like any criminal trial, a war crimes prosecution would strip responsibility from the community and bestow it on a single person, who would investigate the crime, craft the charges, and present the evidence, reducing the people in whose name she acts to mute bystanders. Because motive has no place in a criminal trial, the prosecutor does not need to understand why events happened, or why they might have been endorsed by the community. She does not need to understand the complex social, racial, and political dynamics at work. In fact, she would strongly discourage these questions and object to evidence about them, since they distract from the only question she poses: Did those in the dock commit war crimes?

Yet if you listen to those who call for prosecution, you quickly realize they do not want to understand. They want to punish, to shame, to humiliate, to cast beyond the pale. In fact, they think they already understand. They have already slotted this episode into their view of the world, a view thoroughly steeped in the logic of the carceral state. Dick Cheney, they say, is simply a monster who should rot in hell; James Mitchell, the architect of the interrogation program and the man who tortured Zubaydah, is a sadist who deserves all the punishment we can heap upon him. For many years, my client has been on the receiving end of this vitriol, and the fact that some would turn the tables doesn’t make the room any more attractive or the setting any more comfortable.

I am not a criminal justice abolitionist and certainly agree that society needs good prosecutors. And I confess I have not yet developed a test that reliably differentiates between good and bad prosecutions. But I know that the call for this particular prosecution is marked by the same visceral, morally-charged demonization that has characterized the worst excesses of the carceral state for so many decades. After more than 30 years in the criminal justice system, I think I know the sound of blind rage when I hear it, and this is it.

Abu Zubaydah was wronged, but a prosecution will not make it right.

  • Tom Paine

    Those who voluntarily sought office created by the Constitution, and voluntarily took an oath to uphold same (including treaty based prohibitions against war crimes), assume accountability to the law, including prosecution for war crimes, crimes against peace and crimes against humanity. It may be argued that the community at large, those who paid taxes to enable the commission of those crimes and failed to oppose the “war on terror” are equally morally guilty. I submit those who oppose the “war on terror” and its tactics are not. However, those voluntarily assuming legal responsibilities must be subjected to accountability or the rule of law devolves into mere whims of those with power. “A prosecution will not make it right,” is true: in all prosecutions, neither right nor justice is achieved, but accountability to law may be. Conviction for war crimes is some evidence of a statement by the community that it repudiates such acts, and hangs over the head of the entire community as a sign of guilt. Sentencing for the war crimes can take into account the concerns stated above: perhaps rather than incarceration (or execution) the convicted could be given the choice of appearing in public to educate the community as to the immorality of war crimes, or some other appropriate disposition. Failure to prosecute calls into question the advance the law has made towards bringing law to war, a beast formerly thought to be beyond the reach of law. Though much improvement needs to be attained, for example a conscientious exemption to paying war taxes, the tool of war crimes prosecution exists and can be utilized with a sense of justice to achieve accountability and inform the community of where we ought to go next in reform.

    • Joe Margulies

      Hi Tom,

      Thank you for this thoughtful comment. It is of course true that those who undertake these tasks “assume accountability to the law,” and I agree that a prosecution can, in theory, hold people accountable. The question, however, is whether it is the only or best way. That, I think, is where we disagree. When we consider that a prosecution would occlude rather than reveal relevant facts, and entrench rather than dislodge carceral thinking, I am led to conclude that a prosecution is not the best way to achieve accountability.

      Joe Margulies

  • Crenando

    I agree wholeheartedly with most of your points but you start getting into some kind of “both sides are wrong!” BS. Game Theory requires tit for tat for forgiveness to be memorable and effective at all, I’m sorry if the punishment is to sickening for you but unless you can change the math of human nature, we have to work with the tools we have to prevent these sorts of vast crimes against humanity.