Eighteen months into the second Trump administration, many of the president’s directives have been challenged as not just unprecedented, but as illegal, unconstitutional, and even criminal. Resistance to Trump’s blatantly unlawful actions, including the targeted killing of suspected drug traffickers at sea, explicit manipulation of the Department of Justice for political and personal financial gain, the misuse of congressionally allocated funds to reshape federal institutions, the removal of federal civil servants, and the use of force against foreign countries and kidnapping of foreign heads of state, go beyond the disagreements inherent in how to govern a nation as powerful and globally active as the United States. A string of court decisions, ranging from trial judges at the district level all the way up to the U.S. Supreme Court, have repudiated many of these policies. The Trump administration has reacted to those decisions with vitriol, threats of impeachment, and threats to ignore judicial decisions.
Let’s be clear, many of the flaws exposed by the Trump administration were baked into the American system, if not actively encouraged by previous administrations and Congresses of both political parties. Americans often accepted the premise that unwritten, extralegal norms would serve as abiding checks on unlawful actions. Given the prominence that the Constitution plays in America’s self-mythologizing, it is somewhat surprising that so many fundamental gaps in governance were permitted to continue. However, the judiciary’s reliance on those same norms – primarily under the guise of deference – to avoid contentious decisions involving political issues contributed to a culture where it was seemingly impossible to fathom certain politically salient issues could be resolved in front of judges. What’s more, there has been insufficient political will in Congress to address these issues through legislation or effective oversight. In too many contexts, non-binding norms within the executive branch were left as the only “check” on ascendant presidential power.
It is in this context of unparalleled assaults on the rule of law in the United States that we must discuss how to address these failures in a post-Trump America. The bad news is that America has a history of trying to “turn the page” on its institutional failures, going all the way back to the original sin of slavery and race-based violence, segregation, and discrimination, but also encompassing intentional wrongful acts against Native American populations, gender-based discrimination, anti-LGBTQIA+ policies and laws, war crimes against civilians (in almost every conflict the United States has engaged in), the officially-authorized torture programs in the post-9/11 era (including at Guantanamo Bay and in Abu Ghraib), and negligent or even intentional misleading of congressional or judicial bodies by the executive branch over issues of national security and foreign policy. America’s national sense of identity has always embraced a “moving forward” narrative (for good and for ill) and – outliers like Watergate and Iran Contra aside – voters have very rarely found a fault so foul that U.S. leaders couldn’t survive justifying avoiding the uncomfortable task of facing up to government failures.
The good news is that tools to address the U.S. government’s most recent failures don’t have to be invented from whole cloth – they exist in the field of transitional justice. Often seen as a post-conflict mechanism, transitional justice tools can be useful outside of that context, such as when nations grapple with competing narratives about what “really happened.”
In fact, America has contributed to the development of transitional justice tools in myriad ways, including through numerous local, state, and regional programs, direct support for research and study of best practices, developing the capacity to support transitional justice efforts in countries and communities important to U.S. national interests, and training a robust cadre of professional civil servants who dedicated far more than their “40 hours a week” to wrestling with these challenges and exploring the best ways to move forward. That doesn’t mean the work will be easy. But it does mean useful tools already exist, and the United States has significant experience, inside of government and in the robust civil society community, in applying them. What Americans must find is a willingness to apply these tools to ourselves, possibly for the first time in a substantive way since the failed experiment of Reconstruction.
Transitional justice as a field of practice incorporates four pillars or key principles: (1) truth seeking; (2) justice and accountability; (3) reparations; and (4) institutional reform. Each of these poses real challenges and could be the subject of an entire article about what might be necessary to pursue them in the current moment. But all of them have been used by the United States in response to internal failures in the past, although rarely in combination.
Past Attempts at Applying Transitional Justice in America
Examination of the transitional justice model in the context of post-9/11 violations illustrates the U.S. path to its current democratic challenges. The feeble attempts at accountability seemed designed for token reference, rather than delivery of justice. Regarding truth-seeking, the Senate Select Committee on Intelligence spent six years investigating the CIA torture program and then assembling a 6700-page report that found, definitively, what some have known for hundreds of years – that torture is neither effective nor legal. When a highly redacted executive summary of the report was released in 2014, it was lauded as a first step of transparency that would lead to closing a shameful chapter in U.S. history. But there was no next step – the full report remains classified, including to security-cleared lawyers for the torture victims at Guantanamo Bay. Without further declassification of the full torture program, the American public remains conflicted on the use of torture, even as former officials who initiated and enabled the program have been promoted in successive administrations.
Justice via prosecutions hit early walls under the George W. Bush administration. The prosecution of low-ranking military service-members for the torture and murders at Abu Ghraib and in Afghanistan entirely avoided examining the orders from Secretary Rumsfeld through the chain of command for criminal responsibility. The highly limited Durham investigation into the CIA torture program closed without a single indictment, despite evidence that CIA personnel committed grave crimes beyond the purported legal authorization provided for the torture program. And when the International Criminal Court decided to investigate alleged U.S. crimes in Afghanistan, the first Trump administration hit the Court with sanctions. (Biden took his time lifting those sanctions, but they were imposed again under the second Trump administration).
The idea that Americans are above the law when it comes to overseas harm has, predictably, been expanded exponentially by recent administrations, with executive meddling in the Eddie Gallagher murder case as a prime example. Not only are U.S. officials immune to consequences, but the perpetrators tend to “fail up.” Many advocates, imploring the incoming Biden administration for accountability in 2021, highlighted how Gina Haspel, who destroyed evidence of torture at the black sites, became CIA director. Judge Jay Bybee, then Assistant Attorney General for DOJ’s Office of Legal Counsel, signed off on the so-called Torture Memos in his official capacity. He was later nominated and confirmed to the Ninth Circuit Court of Appeals, prior to the public disclosure of the memos. After their revelation, the DOJ under President Obama cleared him of any wrongdoing, squashing calls for his impeachment.
Without a willingness to implement the first two pillars and admit wrongdoing, reparations and institutional reform may seem distant. America’s history with reparations is tense, to put it mildly. But there was a concrete example in the Civil Liberties Act of 1988, which granted $20,000 and a formal presidential apology to each surviving internee of the Japanese-American internment camps. State legislators in Maryland recently overrode Governor Wes Moore’s veto of the Reparations Commission to authorize a study into the appropriate form of reparations related to Maryland’s history of enslavement.
Institutional reform is perhaps what America likes best, as, in the way America has implemented the principle, it removes the focus from the individual and instead says “the system was at fault.” One very relevant such institutional reform followed the Vietnam War, when Congress passed the War Powers Resolution in 1973. However, even that groundbreaking legislation, which was enacted by a Congress sufficiently in lock step to override a presidential veto, has been weakened by the judiciary (INS v. Chadha essentially neutered its crucial concurrent resolution mechanism for terminating illegal wars) and sidestepped, dissembled against, or flat out ignored by the current administration. There have been other institutional reform efforts that have made a meaningful difference but failed in the long-term to prevent serious abuses of executive authority.
Perhaps most disturbing, neither party during the past two presidential administrations has seemed particularly interested in strengthening safeguards against the executive when their party is in power. In fact, the corrosive culture of impunity that has risen over a generation now seems to prevent institutional reform; Trump wears it as armor as he destroys the procedures by which any such reform would take place.
Transitional Justice in a Future America
Applying these principles in a post-Trump U.S. government that actively seeks to repair, rather than ignore, the structural flaws this administration has highlighted will not be easy. It will take dedicated political pressure from Congress, a willingness to act outside of political party self-interest, an honest assessment of past failures by administrations of both parties, and a willingness to put unpopular but necessary actions over the chance of re-election. Some might argue that there’s little evidence that American political leadership of any party is willing to take on those kinds of risks, at least at a federal level. Which is why we write this now – because such an undertaking will require active engagement by Americans of all political stripes who are tired of our democratic processes being manipulated for theater or personal gain, or simply to whitewash the past and press forward.
We have seen political actors rise to the challenge in the past. Reform efforts and censure of bad actors in response to Watergate, Iran Contra, and the abuses by Senator McCarthy all took place in a bipartisan manner and offer hope of the possibility of such actions in the future. If the American experiment is to continue, it requires that new actors do so again, and in new ways. We have to be those actors, or put those actions in motion ourselves. We have seen some small but significant steps, like the Illinois Accountability Commission (which aims to keep an independent public record of federal immigration enforcement actions during “Operation Midway,” grounded in evidence, testimony, and investigative review), in this direction already. Others have called attention to this need for national accountability.
But we need more – a comprehensive willingness to engage in the idea that America isn’t perfect and when it stumbles, the American people must address those failures before we try to move on. For the failures and fractures revealed in the past decade (and going back further) are not transitory, and they are cumulative. In the current administration, we can see the accumulated weight of these failures causing serious, systemic harm to the continued exercise of American governance. Addressing these failures is not, will not, and cannot be a simple process of returning to business as usual after a token nod to accountability. It will require sustained commitment and confronting uncomfortable truths.
Transitional justice tools also serve a broader function than just the critical need to address serious fractures in American rule of law. The international community has watched with dismay as American leadership attempts forceful export of unchecked executive power to international legal norms, revealing itself to be an inconsistent ally at best, and too often an outright adversary. The use of internationally recognized transitional justice tools at home will signal a serious and credible effort to repair the years of broken promises, failed policies, and intentional disengagement from collective international efforts. American Exceptionalism, currently an anachronistic form of national self-deception in a globalized world, must be re-conceived to reflect the values-driven leader that the United States could still become – with transparency, accountability, reparations, and reform.
Author’s Note: This article reflects the personal views of the authors and does not represent the opinion of the Department of Defense.
