JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says that instead of excusing the Bush administration lawyers who enabled torture as a tool of American policy, we should press for their prosecution and celebrate the efforts of those legal advisors in the Department of Justice, the Department of Defense, the FBI and elsewhere who put their jobs on the line to stand up for true American values…
I've just been to the Toledo Memorial Day parade. I saw old men and women in old uniforms, some riding and some walking stiffly. Ordinary Americans who in various times at least back to the Korean War had put on the uniform. I saw young men and women brimming with energy that feels like a vague memory to me. I saluted the colors as they went by. I looked at young children dressed as young Marines. I was reminded again of the sacrifice of so many decent Americans who trust their leaders when sent into battle to protect the American idea. I look at these loyal American hearts, those at the bottom of the pile who are willing to give their all for our nation's cause.
I ask myself what part of that American idea says that torture is OK? Not one bit of it. It is not our nature, it is not our best nature. We are not that craven.
Over this past week we have been provided the U.S. Department of Justice Inspector General's Report on the FBI's role in detainee interrogations, we've heard Secretary of State Condoleezza Rice during a speech at Google admitting that "enhanced" interrogation techniques were authorized out of necessity, and Attorney General Michael Mukasey exhorting Boston College Law School graduates – law school graduates!! – to be more forgiving to the lawyers like Jack Goldsmith who enabled torture.
Mukasey is particularly instructive as he describes us as being in another cycle of timidity and aggression as we have done in earlier periods. He warns us against going down that path and asks us to recognize what was being called for from the lawyers in the years just after 9/11 – aggression, aggression, aggression. He questions those who call for civil penalties against the lawyers, as well as those, like myself, who call for criminal prosecution of the lawyers who enabled the torture. Along the same lines, Secretary Rice defends the United States use of torture on the grounds we were in a different legal atmosphere after 9/11 – a thinly veiled effort to assert necessity as a defense for the torture.
What the U.S. Department of Justice Inspector General's report tells us is that there were cool heads at the time telling the ones who wanted to torture not to do that. There were all of these voices – in that same post 9/11 environment – who were objecting up and down the line to the actions of their co-workers. These were people who were willing to "not go along to get along" because they questioned the wisdom of the work of those who enabled torture.
May I ask Secretary Rice and Attorney General Mukasey, where is your concern for those lawyers? Where is your concern for Alberto Mora standing up and objecting in the Pentagon? Where is your concern for Bruce C. Swartz , Marion "Spike" Bowman, and Pasquale D'Amuro, lawyers in the FBI? Where is your concern for the FBI agents who went up their chain of command to object to treatment that was patently illegal? Where is your concern for a William Taft IV at the State Department who argued for the applicability of the Geneva Conventions?
Rice and Mukasey ask us to take pity on the legal advisors who enabled torture. That is like taking pity on the sheriff who hands over the prison and the prisoners to the lynch mob. Why not take pity on the deputy who stands in the door and refuses the rule of the jungle?
These legal advisors deserve no more pity than any garden variety crack dealer. Specialist Darby showed us the pictures of just what these legal advisors put in place. Murat Kurnaz and Khalid El-Masry have explained to us what they were put through. Good decent members of the military and CIA were perverted into torture machines at Bagram, Abu Ghraib, Guantanamo, black sites and other places on the basis of that legal advice that came down to them in the form of orders to do various atrocious acts.
When the pictures came out, we were all shocked and heads were made to roll. The thing is that the heads that rolled were just the heads of the very low level persons who had betrayed their oath and their obligations under the Uniform Code of Military Justice. Anyone with a vague sense of the military knew full well that these kinds of concerted actions in several places were not just the product of low-level improvisation.
If we want to change from a cycle of timidity and aggression, then let us do that this time by trying something new that we do not do in this country: criminally prosecute the high-level civilians – the OLC lawyers and White House lawyers, the principals of the National Security Principals meetings, the General Counsels and Intelligence types at the Defense Department and CIA. Criminally prosecute them for conspiring to torture and a whole list of other crimes. Do the same for the generals like General Miller who made sure the bidding of these high-level criminals was done.
Why speak so clearly of this? Because, it is in the hearing room, in the court before a jury that we can see of what stuff these persons are made. We as ordinary citizens can judge the high and mighty and determine, as a matter of law, what part of what they did was legitimate and what part of it was panic and improvisation.
It is important for those who so willingly put forth these arguments for torture to be called to account – just like those soldiers at Abu Ghraib. Otherwise, we have not put a bulwark up against this most heinous of human crimes – torture. We have let this cycle go around again without the principals being prosecuted – again.
Now Secretary of State Rice and Attorney General Mukasey want us to acquiesce in what has happened: forget about it and go on. Their very efforts are part of an effort we are seeing over and over to have us just let it go. We should not let it go because there is a need for institutional memory – institutional memory that reminds all who work in this area that torture is not some utilitarian calculus – it is a crime.
In order to bring this home to Secretary of State Rice and Attorney General Mukasey, what we who think the line should be crystal clear should do is not just write pieces like this one. We should inundate the offices of Secretary of State Rice and Attorney General Mukasey and our representatives, calling on them to criminally prosecute these high-level perpetrators of torture. Borrowing from the Amnesty International approach with regard to prisoners of conscience in which cells are created that send letters to a designated prisoner of conscience, as citizens of conscience we should exercise pressure on the leaders of our country to force them to be criminally prosecuted for their deeds against the United States.
Let Secretary of State Rice and Attorney General Mukasey come into their offices every day until they leave Washington and find letters from average citizens from around the United States, calling on them to use their power to redress the torture bar. Let them have to find appropriate storage for the thousands of letters. Let them contemplate the wrath of millions of Americans at their acquiescence in besmirching what America stands for.
Think back to the weasly words of Secr
etary of State Rice, Attorney General Mukasey, the torture memos and the surreptitious perversions of Addington, Haynes, Yoo, Goldsmith, Bellinger, Bradbury and other lawyers. Let us not weep for these poor souls who pervert law in the service of power. Let them be prosecuted, let them face a jury of their peers, and let them be convicted. Let us through our actions call the hounds of hell upon the enablers of torture.
Let us vindicate those in our government who were willing to stand for law and resist the panic and improvisation that led to torture. Through these prosecutions of their weak colleagues, let us tell Alberto Mora, Bruce C Swartz, Marion "Spike" Bowman, Pasquale D'Amuro and Willam Taft IV and the other lawyers who stood up for what is right that their keeping the faith with what is fundamental in America is important to us and that we honor and cherish them for their struggle in the darkest of times.
Benjamin Davis is a professor at the University of Toledo College of Law