JURIST Guest Columnist Benjamin G. Davis, an Associate Professor of Law at University of Toledo College of Law, says that the recent response by the US to the Spanish torture case outlines the Obama Administration’s approach to torture…

Recently, the US response to the Spanish prosecutor in the Spanish torture case became available. Unfortunately for justice, and for reasons I will describe below, last week the Spanish prosecutor decided to close the case and refer the matters to the Justice Department.

So let us look closely at the Department of Justice letter.

The letter is useful in providing insight into how the current administration has addressed torture claims against the prior administration. The heart of the letter has two parts: the first part is the discussion of the Office of Professional Responsibility (OPR) report and the subsequent Margolis report, which found Jay Bybee and John Yoo exercised poor judgment in their legal memoranda on interrogation of detainees, but declined to make a criminal or ethical referral. The second part is the decision that it was not appropriate to bring criminal cases with regard to any other executive branch officials who acted in reliance on these and other Office of Legal Counsel memoranda. Additionaly, the letter includes a link to the successive Office of Professional Responsibility reports that were made over several years.

In making his decision, I hope that the Spanish prosecutor read the letter together with the OPR reports, as they are instructive in detailing the mendacious, verging on obstructive, approach of executive branch officials in their interactions with the OPR, which was required to work without having subpoena power. The detailing by the OPR of the difficulties it encountered in bringing forward its investigation in all the steps up to the final Margolis report is an instructive lesson. The lesson shows how our system operates to attempt to thwart investigations so that higher-ups do not face accountability, let alone criminal responsibility.

In making his decision, I hope that the Spanish prosecutor kept in mind the memoirs of both President George W. Bush and former Secretary of Defense Donald Rumsfeld. These memoirs came out subsequent to the OPR report. Their defense of the torture, or blaming it on a “few bad apples,” I hope rang a bell in the mind of the Spanish prosecutor from the dirty wars in South America.

In making his decision, I hope that the Spanish prosecutor kept in mind the recent reversal of US policy in deciding to start up the military commissions for certain detainees in the War on Terror, many of whom were subject to torture and cruel inhuman and degrading treatment. This approach puts the victims of torture back in a third-class system that is a hermetically sealed conviction machine reserved only for foreigners. These approaches should hopefully suggest that in these matters of torture, America departs from meaningful judicial norms and the political branches are intent on keeping all in the dark, including American citizens and the world, about torture through these irregular processes.

Moreover, we did respect judicial norms and forms such as in the Ghailani prosecution in our civilian courts. However, the uproar of our political class in response to the verdict should help demonstrate to the Spanish prosecutor that leaders of both political parties are far too invested in convictions of our enemies to be capable of meaningfully evaluating and prosecuting torture by our own higher-ups.

In making his decision, I hope that the Spanish prosecutor kept in mind all the civil cases that have been brought by former detainees with regard to their treatment in various American courts and which have inevitably floundered against the rocks of the state secrets doctrine and others. Contrast this reality with the experiences of detainees in systems like the Canadian and English.

The US response to the Spanish prosecution of the lawyers has been fascinating because this prosecution focuses on the key link – and the weakest link – in the superstructure of torture that was put in place. The lawyers’ reasoning provides a faded fig leaf of respectability for those who try to hide behind their legal ministrations.

As I have detailed in an earlier article, Refluat Stercus: A Citizen’s View of Criminal Prosecution in U.S. domestic courts of High-Level U.S. Civilian Authority and Military Generals for Torture and Cruel, Inhuman or Degrading Treatment,, the legal and prosecutoral calculations in the American system under American law appear incapable so far to prosecute high-level civilians or military generals in situations such as this at least in our recent history.

Now, another effort in a foreign court is turned back under relentless US pressure and referred to our Department of Justice.

Some day, it may be necessary for a foreign court under universal jurisdiction and applying an international standard to take a step towards accountability precisely because of our leadership class’ obvious resistance or incapability to reach above willing low-level soldiers or CIA contractors being used as scapegoats. The Italians are the only ones who have done something. Germany, France, and Spain have blinked at American torture. So it goes. It ain’t over til its over and the statute of limitations is still running on these guys.

Benjamin Davis is an Assistant Professor at the University of Toledo College of Law. He has served as legal counsel for the International Court of Arbitration of the International Chamber of Commerce. He is also the creator of fast-track international commercial arbitration and the International Competitions for Online Dispute Resolution (ICODR).

Suggested citation: Benjamin Davis, Refluat Stercus Por Favor, JURIST – Forum,
April 21, 2011, http://jurist.org/forum/2011/04/benjamin-davis-refluat-stercus-por-favor.php.