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Moving Beyond Secret Prisons

JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says that President Bush's acknowledgement that high-level terror detainees have been held in secret CIA prisons should be the beginning of a cleansing process in which leaders of the American executive, legislature, and judicial branches of government and the American people as a whole own up to and apologize for their abject failure to adhere to the international rule of law...

As President Bush has now made his long awaited admission that there have been secret CIA prisons around the world in which individuals have been held in prolonged, secret incommunicado detention in clear violation of international law (see the ASIL Centennial Resolution), one has a sense of relief that the coverup is lifting and at least part of the truth is finally starting to come out. In due course I am certain we will learn that the "tough" interrogation techniques admittedly used in these secret detention facilities violated Common Article 3 of the Geneva Conventions. Even if one had been in denial, one must at this point come to terms with the dawning realization that violations of international humanitarian law and war crimes have been committed by the United States that were authorized by the highest levels of civilian authority of the United States.

It is important that we do not think of this failure of our leadership to respect the most elemental aspects of international law as purely a failure of the Executive. In time, I hope that the ranking members of the Senate and House committees (Armed Services and Intelligence Committees and possibly others) and others (dare I say the Chief Justice of the Supreme Court and/or FISA Court?) who were briefed in some manner about these practices will also come forward and tell the American people and the world (1) what did they know? (2) when did they know it? This failure is a failure of the United States and falls on each of our shoulders as a collective shame.

I hope there will come a day when on the floor of the Senate, the Senators will reveal what they knew and on the floor of the House the House members will reveal what they knew and apologize. I hope there will be a day when the United States will make an apology to the world for its weakening of the rule of law through these types of actions.

We can recognize the good intentions behind these illegal orders — to protect the American people. But the departure from civilized standards that they demonstrate in the face of substantial credible internal opposition suggests a terrible failure of character that has besmirched American honor. We ask them also to keep our honor clean and faithfully execute our laws.

How do we get back to being ourselves? Might I suggest that Congress start by rejecting the Bush Administration's Military Commission legislation, a thinly veiled effort to amnesty actions that were done in the 2001-2006 period. Second, Congress should take its lead from the Military JAG Officers testimony this summer in fashioning a set of military commissions that start from the Uniform Code of Military Justice. We should not go off half-cocked but rather draw on the history and experience under that Code to fashion an adequate procedure that meets the strictures of our statutory and international law obligations as Hamdan has reminded all again. Third, Congress should simply refrain from any measures which would have the effect of amnestying or reducing the criminal and/or civil liability of those who authorized or engaged over the past years in the departures from civilized standards that are coming to light. The full extent of those departures (extraordinary renditions, torture and cruel inhuman and degrading treatment etc) from civilized standards are still far too unknown and merit serious examination and, as warranted, prosecution. The operative rule should be that the only salvation for those seeking to escape criminal and/or civil liability for their actions should be the Presidential pardon — not Congressional cravenness.

Benjamin Davis is a professor at the University of Toledo College of Law

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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Academic Commentary is JURIST's platform for legal academics, offering perspectives by law professors on national and international legal developments. JURIST Forum welcomes submissions (about 1000 words in length - no footnotes, please), inquiries and comments at academiccommentary@jurist.org

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