The Senate Torture Report as a Truth Commission

The Senate Torture Report as a Truth Commission

It so happens that I have been researching the South African Truth and Reconciliation Commission at the same time that the Senate has published an alarming report of abuse and torture committed by Americans in the name of national security. Without equating South African apartheid with the Bush Administration’s policies and practices, I thought that a few insights from the South African TRC are worth highlighting.

First, the Senate Report is a transition point for the United States. Following early revelations of torture, we have had a decade of obfuscation, but now we are moving in the direction of truth-telling. Whatever one thinks of it, the Senate’s actions represent a type of truth commission. Flawed and partisan, but nonetheless a truth commission. Of course, the South African TRC was not simply a truth commission, but also a commission committed to reconciliation and prosecution of key perpetrators. The next step for the United States will be to consider whether and how we approach the next stage in this sad saga, which will involve questions of reconciliation and responsibility.

Second, while the Senate Report has focused on the question of efficacy, we should first and foremost recognize that information released yesterday underscores the moral failure of those who committed unspeakable acts of torture. It will take some time, but we must come to accept that the acts committed in the name of protecting our nation have weakened it. Our standing in the world has been irretrievably diminished. A poem by Desmond Tutu, head of the South African TRC, which he read during the opening session of the TRC in 1996, bears repeating:

The world is wept.
Blood and pain seep into our listening; into our wounded souls.
The sound of your sobbing is my own weeping;
Your wet handkerchief my pillow for a past so exhausted it cannot rest–not yet.
Speak, weep, look, listen, for us all.
Oh, people of the silent hidden past,
let your stories scatter seeds into our lonely frightened winds.
Sow more, until the stillness of this land can soften, can dare to hope and smile and sing;
Until the ghosts can dance unshackled, until our lives can know your sorrows and be healed.

Third, regardless of whether there are prosecutions, at some point those responsible for the policies that led to torture will be invited to apologize. If the South African TRC is any guide, they will refuse. During the South African TRC, in the kindest way possible Desmond Tutu invited former Prime Minister P.W. Botha to apologize. Tutu said to Botha:

I speak on behalf of people who have suffered grievously as a result of policies that we carried out by governments, including the government that he headed. I want to appeal to him. I want to appeal to him to take a chance … to say that he may not himself even have intended the suffering…. He may not have given orders or authorised anything…. I am just saying that the government that he headed caused many of our people deep, deep anguish and pain and suffering…. If Mr. Botha was able to say: I am sorry that the policies of my government caused you pain. Just that. Can he bring himself to say I am sorry that the policies of my government caused you so much pain? That would be a tremendous thing and I appeal to him.

Botha heard this appeal in a court of law, and sat there unmoved and unresponsive. Later, former Prime Minister F.W. de Klerk–the one responsible for freeing Nelson Mandela and setting South Africa on a path toward democracy–was also asked to apologize. He admitted that there were “bad apples” and that security forces committed acts of murder, torture, rape, and assault. But he denied that his administration ever directly or indirectly authorised such actions. Tutu said of de Klerk:

To say I did not know… I find that hard to understand. I have … got to say that I sat there and I was close to tears. I feel sorry for him. I am devastated. [For him] to make an impassioned apology … and then to negate it. All that is required is to say that ‘we believed in this policy but it is a policy that brought about all of this suffering. It is a policy that killed people. Not by accident, deliberately. It was planned.’

His failure to apologize permanently altered Tutu’s estimation of de Klerk.

He would have gone down in history as a truly great South African statesman… What a great man he would have been…. He is a very bright lawyer who qualifies his answers carefully to protect his position, but in doing this he has steadily eroded his stature, becoming in the process a small man, lacking magnanimity and generosity of spirit.

So this is where we are. We are beginning to understand the truth of what happened. Our souls are heavy as we learn of the silent, hidden past. Eventually we will pursue more than just truth. We will discuss a formal truth and reconciliation commission, and will investigate who and how to prosecute the perpetrators of torture. We will hope upon hope for a sincere apology from statesmen, but have little confidence that one will be forthcoming.

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International Human Rights Law, National Security Law, North America
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From news media interviews of some of the complicitors and authorizers, it appears that they remain unrepentant. We even hear some of the old lies, e.g., that people detained from the theatre of war in Afghanistan were not covered by Geneva law, that waterboarding is not torture (despite then easily identifiable U.S. cases, U.S. Dep’t of State Country Reports, and three decisions of the European and Inter-American Courts of HR).
We are no where near a Truth Commission.
Further, it would not obviate ICC jurisdiction with respect to crimes committed in whole or in part in the territory of a Party to the Rome Statute (like Poland, Lithuania, Roumania, Afghanistan), or universal jurisdiction in any other country or in an ad hoc international tribunal.
Just starting? Yes, but in a way they will not prefer.


And several where not willfully blind at all! It is likely that Cheney, his lawyer Addington, Gonzales, and those who worked for Gonzales in the White House knew of the memo from Legal Adviser Taft and the outcry from Secretary Powell before State was intentionally bypassed.
It is also likely that they and others knew of the opposition from each of the Judge Advocate Generals of the Army, Air Force, Marines, and Navy before they were intentionally bypassed.
John Yoo and others might well have been willfully blind (or worse) because it would have been so easy for John Yoo and any other lawyer involved in the “program” to turn on their computers — to check Westlaw for the 29 US cases that had already recognized that waterboarding and related inducement of suffocation is torture. So easy to turn on their computers and check US cases for the fact that death threats, the cold cell, and certain other tactics are torture. So easy to check US Dep’t of State Country reports and decisions of the European and Inter-American Courts of HR.
Some were either spreading lies or were professionally incompetent — one or the other.

Benjamin Davis
Benjamin Davis

Well we are not just beginning to be aware. The Senate Armed Services Committee report of December 2008 or six years ago was quite extensive in detailing the torture done then. So this report focused on a small portion of the other torture done to the high value detainees is just another nail in a coffin. The 2100 photos not yet released by the government for which the US pleading is required tomorrow will likely be another nail in the coffin of just how extensive was the torture program beyond just Abu Ghraib but at Gitmo, in Iraq, in Afghanistan, in the black sites and with the complicity of leaders of 54 countries.