What About Lustration?

by Kevin Jon Heller

I am obviously on record as supporting the criminal prosecution of the individuals involved in the CIA’s torture regime — the interrogators who inflicted it, the military and government officials who ordered it, the OLC lawyers who rationalized it.  Such prosecutions are, unfortunately, extremely unlikely — at least in the United States.  Moreover, there does not seem to be any other way to discipline the responsible individuals.  We do not know who the interrogators are.  The Bush administration officials are out of office and out of power, at least until the next Republican is elected president.  Bybee is unlikely to be impeached, no matter what the chatter (and doing so might be unconstitutional).  And the statute of limitations for bringing a misconduct complaint against John Yoo appears to have already run.

There is, however, another possibility – one that steers a middle course between criminally prosecuting the torturers and letting them off the hook completely: lustration.  Derived from the Latin word “lustratio,” meaning “purification by sacrifice or by purging,” lustration refers to a transitional-justice process in which individuals involved in government misconduct are legislatively prohibited from holding certain governmental and non-governmental posts for a specified amount of time.

Lustration has a long history, although the concept is perhaps most closely associated with the laws passed by formerly communist countries in Eastern Europe following the collapse of the Soviet Union.  After independence, many of those countries prohibited members of the Communist Party and individuals suspected of collaborating with state security services from holding important posts inside and outside of the government.  Czechoslovakia’s Lustration Law, for example, prohibited such individuals from holding the following positions for five years (later extended to nine):

[P]ositions in the state administration at both the federal and the republican levels; the Czechoslovak Army (the rank of colonel and higher); the federal Security and Information Service; the federal intelligence agency; the federal Police; the Office of the President; the Office of the Federal Assembly; the Office of the Czech National Council; the Office of the Slovak National Council; the offices of the federal, Czech and Slovak governments; the offices of the federal and republican Constitutional Courts; the offices of the federal republican Supreme Courts; and the Presidium of the Czechoslovak Academy of Sciences; … top positions in Czechoslovak, Czech and Slovak Radio and Television; … the Czechoslovak Press Agency; … top management positions in enterprises and banks owned by the state; top academic positions at colleges and universities; and judges and prosecutors.

A U.S. lustration law could be carefully tailored to the dangers posed by the individuals involved in the CIA’s torture regime.  Lustration could be limited to government positions (to avoid constitutional problems); it could involve a longer or shorter ban; it could treat the different categories of offenders differently.  I don’t have a specific proposal to offer; I simply want to suggest that the idea of lustration should be part of the public discussion.

No matter how drafted, a lustration law would have a number of advantages. First, and most obviously, it would impose serious financial costs on the affected individuals, many of whom have spent most of their professional careers in government service and are simply biding their time until the next Republican administration.  The loss of livelihood, at least in terms of public employment, should be the minimum acceptable consequence for their actions.

Second, lustration provides a close retributive fit between the punishment and the crime.  The torture inflicted by CIA interrogators was not the work of a few sadistic bad apples; it was the product of a systematic policy formulated and rationalized at the highest levels of government.  Short of incarceration, therefore, it is difficult to imagine a more fitting punishment than prohibiting those who misused governmental power from ever having the chance to misuse it again.

Third, and perhaps most important, lustration would serve as an effective deterrent to future governmental misconduct.  The potential financial costs would be one deterrent; another would be the ignominy of the public shaming that lustration would involve.

There are, of course, dangers to using lustration — unfairness to the lustrati foremost among them.  As I pointed out in this essay, Czechoslovakia’s lustration law led to numerous individuals being wrongly lustrated, because it did not require the government to prove in a formalized hearing that the suspect had been involved in human rights violations; all it had to do was produce (notoriously unreliable) records held by the secret police that indicated he had been a communist official or collaborator.  A U.S. lustration law would have to provide potential lustrati with the opportunity to challenge their lustration via some sort of formal hearing.  Such individualized hearings are very time- and resource-consuming in normal transitional-justice situations, because of the large numbers of potential suspects.  But that would not be a problem in the U.S., because the number of individuals involved in the CIA’s torture regime is relatively small.

To be sure, conservatives who dismiss the Bush administration’s systematic criminality as “policy differences” and describe the desire to hold the individuals responsible for that criminality as “McCarthyism” will be no less opposed to lustration than to criminal prosecutions.  Nevertheless, lustration might prove to be an attractive option for those in the middle — elected officials who are opposed to impunity for the torturers but are uncomfortable with the prospect of putting them in jail.

What do you think, readers?

http://opiniojuris.org/2009/05/11/what-about-lustration/

23 Responses

  1. While it would take a very broad reading to consider Lustration a Bill of Attainder, they both have the same intent at heart, which is punish legislatively without a trial, and I thus object (morally, not legally) to it.

    As a practical matter, it strikes me as somewhat unnecessary.  I don’t know that any of the OLC lawyers are likely to see their political stars rise again.

  2. I think it’s sad, actually.
    Sad that we have to think about how we could apply alternative transitional justice mechanisms here. This is the United States of America. We’re the rule of law country, remember? We don’t need a Truth and Reconciliation Commission. We don’t need lustration. The Bybee-Yoo Liberation Front is not threatening to re-escalate a conflict that will mean the deaths of thousands of innocent civilians and hundreds of thousands of refugees flocking to Canada to escape the path of rape, torture, and pillage they will wreak if we try to hold them legally accountable. This is America. We need to start acting like it.

  3. Criminal prosecution of “individuals involved in the CIA torture regime” satisfies American legal expectations but in this case, legal purity is always adulterated by political interest and perhaps by national pragmatism. No one doubts the dislike, which borders on hatred that exists between the extremities of the two main political parties. Even if the prosecution of these individuals was motivated by the purest legal motive, the political reality is that the Republicans will use and twist it to fit their own agenda, and vice versa if the Democrats were out of power. The political bickering that ensues from such a scenario will be a great disservice to American best interest. The economy, terrorism, Iran, North Korea, Cuba etc. demands that America tackles these problems with a united front. Although, torture should never be countenance, prosecution of individuals involved in the torture-gate is, at this point, ill advised.
                Lustration may be a good idea, but the Obama administration must call it something else. Even though he is not, he has been branded a socialist and using a term that originates from the Soviet block will give the Republicans political arsenal that they hardly deserve.     
     

  4. The fellow commentators above have well outlined the main purposes of lustration – protection against restoration of the ancien régime and punishment of those who actively participated in running it. Although the first reason has always been the official one in the Czech Republic, it seems that it later proved to be rather outweighted by the second one – it happened when originally limmited duration of lustration laws was prolonged ad infinitum. The Czech Constitutional court based its assentory judgement (Pl US 9/01) on argument which considers the main purpose of lustration laws to be an assurance that only those people should be in office, who can guarantee loyalty to the state, meaning their personal loyalty to their office and more importantly loyalty of their office to general principles upon which the state is based. I am personally not convinced that the later can be avoided by lustration, because it has proven to be problematic not only in transitional and developing countries, but also in settled democracies. Adding the procedural problems with its application, one does not wonder why modern constitutions have strictly forbidden any kind of collective extrajudicial punnishment. If impunity of the US officials is to come to an end, I believe it should be done through fair trial either on national or international level.

  5. I expect that there would be even less enthusiasm for this than any other option, frankly. Consider the perspective of the President in passing this bill, or the staffers in negotiating the details! Would Pelosi’s chief of staff think this a good idea?

    I also suspect (without knowing) that it might be unconstitutional however drafted and even more so if only applying to government positions. First, due process??, second, how can Congress possibly tell a future President who he can’t appoint, and for that matter tell its own successor who it can’t approve?

    And in any event I share M Gross’ and VBM’s reservations.

    As for Godfrey Mhlanga, your conclusion is quite wrongheaded (in fact, if Obama did this, he would entirely deserve the oppobrium associated with it!) and your reasoning is appalling (we must do by sleight-of-hand what we dare not do openly??!?).

  6. European practice with lustration was not that smooth, though. European Court of Human Rights was not too happy with some national lustration laws and upheld that in some aspects these laws violate Art. 14 of European Convention which prohibits discrimination.

  7. Kevin,

    This is quite a provocative proposal, even if only construed on the order of thought experiment.

    Lustration, as Elster makes plain, “may entail dismissal, ineligibility, or simply exposure.” The latter process is worth consideration as well. Cf. the case of Poland:

    In Poland, candidates for high elective or appointive office have to declare whether they were ‘conscious collaborators’ between 1945 and 1990. If they admit it, no further action is taken, except the record is made public. Voters or hierarchical superiors then decide how to respond to the information. Candidates who falsely deny that they collaborated are banned from public office for ten years.

    It’s also worth considering, for example, the fact that lustration laws, while clearly in some respects punitive, have not always been seen by the courts (e.g. the Czech Constitutional Court) as falling simply under the rubric of “criminal punishment” (thereby avoiding the issue of retroactivity,’ to wit: the lustration law ‘does not impose sanctions, rather it merely sets the conditions for certain offices….’), and thus we may want to pass on the issue of “retributive fit” (or at least think carefully about the relative focus to be placed on the idea of retributive justice and punitive fit)….
    And I think you’re right to raise the possibility that a lustration approach adopted by the U.S. need not repeat the due process and other legal problems that afflicted some aspects of the recent laws, policies, and practices among East-Central European regimes.

  8. To change the subject slightly, I am curious as to whether there has yet been any discussion on OJ regarding Baybee’s memo, from Oct. 2002, on the legal justification for the invasion of Iraq. I just came across it (here and discussion of it here) and think its disclosure is quite new. I haven’t had a chance to read it yet myself, but I look forward to seeing some debate on it here!

  9. I can see something like this for the lower level follks, but not for the higher ups or professionals.

    Any lawyer, physician, or psychologist complicit in a war crime should be barred from the practice or teaching of their profession FOR LIFE.

    And any elected or appointed US official who participated in these crimes should be punished to the fullest extent of the law:: we need to make an example of these people taht will be remembered along with Nuremberg a thousand years from now. These people tried to destroy the law itself, and they purt the entire wolrd in danger by doing so.

    And here again, 18 USC 2441 is absolutely plain:

    ” 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.”

    And all you lawyers are supposed to be familiar with the fact that when a US statute says “shall” it actually means “SHALL”, not “may”. Or am I misinformed?

    The evidence is clear enough, that’s for sure. We know that detainees have died under torture and abusive custody in violation of18 USC 2441 on the direct authorization of George Bush with the active assistance of Dick Cheney, David Addington, John Yoo, William Haynes, Jay Bybee, MG Geofrey Miller, etc.

    There is no problem here except the unwillingness of people to do what the law requires in any criminal case, and that is not problem of pragmatics or politics,it isa problem of character, intelligence, andintegrity.

    We have become a nation of HYPOCRITES, FOOLS, and CRIMINALS.

    And it is time to find a CLUE and WISE UP.

    They must be prosecuted and they must be punished for their crimes.

  10. A lustration statute, while an interesting concept, with which I heartily disagree, would have to, as a matter of fairness, be imposed upon all members of the House and Senate intelligence committees briefed by the Central Intelligence Agency (and any others) regarding such treatment of prisoners being held by the United States.

    While it has already been raised that such an idea is highly political in nature, the legislative history of such a statute necessarily encompasses the failure of multiple Congresses (both Democratic & Republican) including the current one to actually pass a statute declaring in plain English that waterboarding is torture. Some may say doing so begs the question. I have to disagree (and I think if being honest others must as well) given the repeated efforts by sundry members of the Judiciary Committee asking the former AG Mukasey during his confirmation hearing regarding his opinion on this issue. Nary a Senator, as I recall, rose up in horror that he should disagree with what the law is.

    Given these facts, one must consider, if not concede, that a lustration statute is (1) inappropriate and (2) a political tool that would be wielded by those who more than strongly dislike the George W. Bush Administration.

  11. Adam,

    I don’t understand your argument.  Assuming for sake of argument that some members of Congress were briefed about waterboarding — which is far from clear — how exactly did they participate in the CIA’s torture regime?  Knowledge of a criminal act has never been enough for criminal liability; the individual must either participate in a common plan to commit that act (joint criminal enterprise) or in some other manner assist in its execution (aiding and abetting).  By that standard, the fact that some members of Congress omitted to protest the torture regime — which is also far from clear — in no way makes them criminally responsible for it.  To the best of my knowledge, members of Congress have no duty to prevent illegal conduct, the necessary precondition of omissions liability.

    As for your second comment, there has never been any question whatsoever, either under domestic law or under international law, that waterboarding is torture.  Full stop.  So your suggestion that the torturers are somehow not criminally responsible for their actions in the absence of an act of Congress that says “waterboarding is torture” is misplaced.  There is also no act that says “mock executions are torture” or “electroshock to the genitals is torture.”  Do you believe that an interrogator who held mock executions  or shocked detainees’ genitals could not be convicted of torture?

  12. By the way, your recollection about Congress’s response to Mukasey is clearly a bit hazy.  From NPR:

    When Sen. Sheldon Whitehouse (D-RI) asked directly whether Mukasey thought a technique that simulates drowning, known as waterboarding, is constitutional, the nominee was equivocal. He danced around the issue of whether waterboarding actually is torture and stopped short of saying that it is.

    “If it amounts to torture,” Mukasey said carefully, “then it is not constitutional.”

    Whitehouse said the answer amounted to pure semantics.
    “I am very disappointed in that answer,” Whitehouse said.

    “Sorry,” Mukasey responded quietly.

    [snip]

    Senate Democratic Whip Dick Durbin (D-IL), asked Mukasey if he could shed some light on the matter.

    “I’m hoping that you can at least look at this one technique and say, ‘That clearly constitutes torture. It should not be the policy of the United States to engage in waterboarding,'”

    Mukasey dodged.

  13. Kevin, that seems very confusing. If lustration has any point it is a form of political punishment. So Pelosi et al should be just as much subject to it as anyone else – what role did they play? Why they condoned it in their capacity as the relevant representatives of the legislative body – some role I think!

    And it is not very far from ‘clear’ that she was so briefed – you would write with a very different tone if you extended so much credulity to the Bush administration or the OLC lawyers.

  14. Patrick,

    Congress enjoys immunity for their legislative acts. This is all just a dodge until such time as we have the actual briefing transcripts ANd the exact conditions under which they were given.

    Until we do, you apologists are just using this BS to divert attention from the actual crimes that were committed, including not merely torture, but murder, kidnapping, unlawful detention, assault, witness tampering, and obstruction of justice, among so many other crimes.

    And the hypocrisy that you all display is appalling.

  15. I think, Charles, that lustration might be partly aimed at circumventing legislative immunity, although I don’t believe it has ever been practised by a sitting legislature against its own predecessor – for the obvious reasons that make it very problematic for 90% of the commenters here, it is generally practiced post-revolution.

    Otherwise, how is the price of fish lately?

  16. Patrick,

    I guess if I had chosen to totally ignore the political reality that drives legislative decisions I would not have come to a conclusion which you call “wrongheaded” and “appalling” reasoning. 

  17. Hmm, perhaps I should have just used ‘confused’. Imho, if Obama tried to use lustration he would thoroughly deserve whatever oppobrium he attracted, no matter what he called it.

    And, my point, he would deserve even more opprobrium for trying to sneak it off as sth else. I am already pretty uncomfortable about lustration as even an idea (at the very least, in the context of legislative and constitutional continuity). Surely there is something fundamentally wrong about a surreptitious ‘behind-the-play’ proxy for actual punishment?

    None of this is to suggest that there was nothing wrong with the conduct of the people involved. But lustration already seems one step towards the triump of the end over the means (or over principle), this seems a whole step further.

    I guess you don’t share my reservations about the practice itself and so don’t appreciate my reaction. Fair enough, I’m sure vice versa is equally valid.

  18. Patrick,

    Your reservations are well taken.  I’m not completely comfortable with the idea myself, because of the unfairness it involved in the former communist countries.  I simply think it should be part of the public discussion.

  19. Ah, well it’s easy enough to get around the problem of domestic legislative immunity by simply convening a real military commission to try them pursuant to the laws of war.

    But I’m actually not worried about punishing the legislators who supported these crimes, much as some of them clearly deserve to be treated as co-conspirators.

    My concern is simply that the principals be indicted, tried, convicted, and punished pursuant to 18 USC § 2441 and every other US criminal statute they violated. That’s what the Geneva Conventions require, and what the law demands — the President “shall take care that the laws be faithfully executed,” Const. art. II § 3.

  20. Kevin,

    I would think the conditions that produced (or at least contributed to) the “unfairness” you refer to are largely attributable to the circumstances of the actual transition from communist regimes and societies to democratic civil societies and polities and a comparative lack of recent experience with constitutional legal systems and politics. Certainly the cultural ethos of these societies (well described during the period immediately prior to and during the Velvet Revolutions by Havel, Michnik, Konrad, Kuron, among others) could account for an emotional climate or disposition that could derail scrupulous attention to fairness. In other words, I wonder if we have sufficient reason to think such (identical or similar) causal conditions would be present when the sort of circumstances peculiar to these instances of transitional justice are absent in this case. So I suppose I’m asking what reason(s) do you have for thinking such unfairness might repeat itself in very different circumstances and conditions.

  21. Actually, Patrick SO’D (what a great name btw, you must be extra smart 🙂 I think the position is even more fraught in a case of legislative and governmental continuity. The whole framework of revolution and its expediencies is what justifies the extra-judicial measures – punishment is required, but also time is not on your side and the country needs to get going again.

    Two real issues arise in the case of continuity – one, not only can the next legislature can simply override it, this is  actually extremely likely to happen because inevitably it will just be another piece of partisan manouvering. Two, it seems that only the revolutionary context provides the justification for the extra-judicial action. Otherwise, what justification is there that is not circular to ‘they have committed a crime’?

    And once you get to that, why aren’t you in court?

    On the scale of slippery-slopes, for me this one counts as jumping straight off the cliff.

  22. This is the kind of proposed solution that one sees in banana republics, where it is never enough to defeat the previous regime, politically, but becomes somehow necessary to delegitimize the previous regime by prosecutions, purges, bills of attainder, and banishments to political exile if not outright imprisonment.

    Be careful what you wish for, folks.

  23. Brant,

    The recent examples of Lustration are not found in “banana republics” and thus the proposal is not akin to such either. Lustration was practiced by regimes making the transition from authoritarian governments to democratic ones, and was simply one of the means used to ensure democratic values and methods of governance were not undermined or thwarted by those with backgrounds that suggested a lack of commitment to a democratic civil society and polity, a commitment absolutely necessary in the fragile and difficult period of transition. These constitutional democratic polities revealed a creative concern for criminal justice that was far less vengeful or retributive than it might otherwise have been, given the horrific human rights records of the regimes that preceded them. Whatever its shortcomings in implementation or institutionalization, the motivation and goals of Lustration thus revolved around the values and principles of democracy, as well as criminal justice, and this has nothing whatsoever to do with so-called banana republics.  

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.