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Before forgiveness for torture, there must be accountability

Published Dec 7, 2008


The season of forgiveness is here, and US federal felons are hoping it will alight on them. The period from the Thanksgiving holiday until precisely noon on January 20 - inauguration day for the incoming president - is prime time for pardons in a president's last term.

Junk bond baron Michael Milken wants forgiveness, former WorldCom chief Bernard Ebbers a shorter prison term. More than 2 000 applications have flooded the White House and the justice department.

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Then there are those people not yet charged, much less convicted, who nervously look for pardons, too. Suspecting the future might bring indictments, those in President George W Bush's administration who may have broken laws to carry out his policies could use the boss's protection.

Beyond the wire tappers, perjurers and obstructers of justice in the US attorney firings are those who promoted the notion that torture isn't torture, and even if it is, it isn't necessarily illegal.

There is something to be said for forgiving the excesses of public servants, some of whom were risking their lives, who believed they were protecting their nation even if skating close to the law's edge.

The problem with just moving on is, as William Faulkner put it: "The past is not dead. In fact, it's not even past." We can't expect an enemy nation to respect anti-torture laws when it captures our guys, if we have flouted the same laws.

"It's a question of protecting future military personnel in future conflicts," says Scott Horton, a New York lawyer who writes for Harper's magazine, often on torture.

Nor can we ignore the precedent Bush set for his successors. We can't simply forget that an administration assumed it had authority to violate the law and human rights. When the torture at Abu Ghraib prison was exposed in 2004, then-defence secretary Donald Rumsfeld told a senate committee he should be held accountable, if only because it "occurred on my watch".

Rumsfeld stayed on the job for another two years without so much as a reprimand from the president. It was as if the torture that killed at least one man and brought shame to the US wasn't sufficient grounds to kick him out of the Pentagon.

There has to be accountability: at least a somber, thorough look at what happened and how to make sure it doesn't again. If, in the process, evidence turns up criminal conduct, we can take it from there.

More than zeroing in on interrogators, I'm interested in those who declared that sort of conduct legal in the face of clear law that forbids it - including former White House counsel Alberto Gonzales, Rumsfeld, some of his top aides and a slew of lawyers at the White House, the justice department and the Pentagon. One of them, Jay Bybee, who used to run the justice department's office of legal counsel, now works as a federal appeals court judge.

They crafted memoranda that said interrogators could ignore the Geneva Conventions, international treaties and US law barring torture - distorting the law and giving cover for illegal conduct.

So far, none of the investigations has led to a definitive account of what happened, though more are under way. If none produces a complete picture, the next president should empanel a commission that will. There must be acknowledgement of past sins, a determination not to repeat them and accountability for any sinners.

Ann Woolner is a Bloomberg columnist. The opinions expressed are her own

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