There seems to be a slowly growing clamor about whether Obama is going to order some sort of independent commission to determine whether to bring charges against administration officials for their role in torture of “detainees” (a combination of battlefield combatants, common criminals, globally renowned terrorists and random people handed over to us, often for large sums) and I’m sure it will come to a climax within the first couple months of his presidency. My two cents are documented here, and if you haven’t seen that documentary I strongly encourage you to. It definitely helps frame the actual discussion as opposed to the “ticking time bomb” fantasy or “fanatics won’t voluntarily give information but will under duress” that is so often mentioned. I strongly oppose torture on both a moral and pragmatic basis, and we’ve seen similar debate for centuries and it’s always eventually settled the same way, so it’s kind of ridiculous that this is even under discussion.

But I am less concerned about the “enhanced interrogation” policy, which should definitely not be much of a factor in the near term — especially since Army and CIA intelligence was against it from the start — and more about Justice. To me it seems that no concept is more universally agreed upon and no concept is less agreed about, especially when it comes to justice for awful crimes. For many justice is primarily a tool for the aggrieved, a process that promises catharsis through punishment. For others it is about healing and moving forward, a facilitator for the stages of grief. And of course there are deeper themes: whether it’s keeping in check the innate sinfulness of man, or finding redemption and realizing the holiness of life.

And of course, there are crimes that are so disgusting that justice is impossible; crimes that tap into our most primal fears and seduce our inner “savage” that values survival above all.

For me though, Justice is about a promise.

I think part of what makes justice such a complicated concept is that it is very idealistic and very personal, but at the same time must be very pragmatic and very universal. People have all sorts of rationale for making moral decisions, and I think that Kohlberg did a reasonably good job of describing them even if you disagree that they are hierarchical. On a personal level, I am naturally a stage six as I am driven by universal principles that are absolute, but as I get older I am learning that in order to get things done I have to exhibit stage five and four morality in practice, or else my appeals fall on deaf ears. But still, this is about ego-centric moral reasoning, and justice has more than one party.

Since people have so many different moral reasonings, it is difficult to devise a justice system that addresses them all in a satisfactory way. Indeed, it can be argued that justice itself isn’t really a singular concept, as justice for the guilty or neutral party is as real as justice for the victim; justice for the whole is as important as justice for the individual. This is why our legal system is highly stage four oriented but has many caveats such as sentencing based on intent and parole for the (theoretically) reformed or even leaving it up to the victim to want to bring charges for small crimes, while always bringing charges (regardless of the victim’s wishes) for harsher crimes.

And of course, justice itself implies that the innocent have nothing to fear.

Personally, I feel that Justice as a promise does a good job of covering all the bases, even though in reality it is nearly impossible to fully implement. To me crimes are breaking an implicit promise that you don’t threaten the life or property of another (crimes that don’t fall under this shouldn’t be crimes at all), and that justice is about rebuilding that promise, even if it’s through force. I am very radical in my beliefs, as if someone murdered my loved ones I would support their freedom if they became truly contrite and I could trust that they would never harm another person; but on the flip side, I wouldn’t have a problem keeping someone in prison for a long time for minor crimes like theft unless they had a concrete plan for change. Moreover, there are some people that can never be trusted and I don’t think that they should be part of the larger justice system.

I think that the government’s role should be to design social and legal programs that do their best to rebuild that promise. To me, viewing justice purely as retribution and punishment, and creating an environment where minor criminals are often “trained” to go on to bigger crimes is breaking that promise. The same for releasing non-rehabilitated prisoners due to overcrowding, while incarcerating nonviolent drug offenders.

And when it comes to torture, our government broke promises plenty: to the international community, to the innocents that were detained, to the soldiers in the field that were in greater danger and to the moral fabric of our society. I’ve read that we shouldn’t investigate because it will be detrimental to our political and social scene, and stability should be valued above all. Andrew Sullivan has a letter that thinks Obama won’t do anything because he is not vengeful. Of course many argue that we should investigate because officials violated a universal dictum or at the very least, our laws.

But to me, it is about a promise. If we do not stand up for the rule of law, how can we expect the government to follow it in the future? If we do not stand against torture, how can we condemn it as a universal crime? If we aren’t willing to risk strife in order to uphold ideals, then what is the point of having them?

Even the Lincoln phrase that Andrew’s reader quoted doesn’t apply:

With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds…

Charity and forgiveness are only possible when there is a promise that the crime won’t be repeated. This could either be because of a genuine change, or it could even be like in the civil war or WWII where the losers were vanquished and therefore rather harmless. That might apply to the Bush Administration particularly, but not to their thoughts on governance generally.

I am not for prosecuting these crimes because I hate Bush, I am for it because I want to have faith in my government to do what it says it will; the world to have faith that we will honor our agreements; and our citizens to have faith that American Ideals are worth fighting for, even if it’s a constant struggle.