No Comment — May 5, 2009, 9:35 am

Lessons Not Learned

In a function sponsored by the New York City Bar Association last night, former Irish president Mary Robinson described a study that she and seven colleagues—prominent jurists from around the world—had completed, looking into the consequences of the effort against terrorism for human rights and the administration of justice. “The damage that has been done to human rights is severe,” she remarked, “and the most distressing thing is that the process was led by liberal democracies, particularly by the United States.” With the arrival of a new administration in Washington, Robinson argued, the time is here for an assessment of the “war on terror” experience. Is the “war on terror” over? It seems at this point that the legal concept, used by the Bush Administration to test and exceed the limits on presidential power, is being put into retirement. But its effects are likely to be with us for many years to come.

Yet the study Robinson led, with former South African Chief Justice Arthur Chaskalson, was not a study of the United States. It looked at developments in Europe, South Asia, Africa, and Latin America. “In fact we started by looking back to the experience of the democracies of the southern cone of South America—Argentina, Chile and Uruguay—in their own struggle with terrorist movements in the seventies and early eighties,” noted Professor Robert Goldman of American University. These countries faced what they considered to be an existential threat from the terrorists, and they reacted in ways that now seem familiar. They chose to deal with the conflict as a military one, concluding that the criminal law paradigm was not sufficiently aggressive. But they did not consider the military law rules to be applicable either—the battle with the terrorists was a “new kind of conflict.” Torture was used in connection with harsh interrogations, the civil rights of the criminally accused were stripped away, and special courts were introduced in which “classified” intelligence—not shared with the accused and therefore not subject to examination—was used to convict thousands, including many perfectly innocent defendants. A “state of exception” was declared as constitutional, and civil rights were rolled back. Military tribunals were also introduced to speed the process. As criticisms multiplied, military strong men in mirrored sunglasses had a ready retort: “These methods worked,” they argued, “they kept the country safe from the terrorists.”

Sound familiar? In fact, the experience of the southern cone democracies prefigured the Bush Administration’s reaction to its own terrorist threat with remarkable precision. And more than twenty years later, the consensus among leaders of the political and legal communities under the Southern Cross is that the harsh measures were not only unjust but also ineffective. The countries involved have spent a generation recovering from the devastating experience. And how did they recover? Accountability was an essential element. Those who broke the law, especially those who reached to torture and murder as tools of statecraft, had to be held to account for their crimes. “Clemency might prove appropriate in some small number of cases,” concludes Goldman, “but only after all the facts have been fully exposed.”

Inside the Washington Beltway today, however, the chattering classes don’t want to be bothered by the cumulative experiences of humankind. Hence, Ann Coulter is asked her opinions about accountability and torture on the American airwaves, and Mary Robinson is not. More lessons not learned.

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