JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says a recent effort by a conservative advocacy website to besmirsch the reputations of current DOJ lawyers who previously represented detainees should not distract the US government from criminally prosecuting DOJ lawyers from the past administration who made torture possible….

I recently came across an effort by a group calling itself Keep America Safe to pressure DOJ lawyers who once represented detainees by outing them as the “Al Qaeda 9”. This new twist smacks of the “Cully” Stimson's effort in the last administration to “pressure” law firms that had lawyers working pro bono for the defense on those cases. After an uproar, Stimson resigned.

Keep America Safe and its surrogates appear to be conducting a thinly veiled effort to question the patriotism of those lawyers who represented detainees in resisting violations of the Geneva Conventions and bringing to light, in FOIA requests and litigation, the torture in the prior administration.

This kind of chilling effect on dissent from outrageous policy is nothing new under the sun. Its natural impact is to attempt to intimidate both those who take on these cases and those who would hire such people after they take on these cases, especially those entering the government to serve the public trust. Too much “controversy” about them.

A further twist is an open letter in “support” of the lawyers, recently described here. Among the signatories are a laundry list of persons who in the prior administration’s time were strong advocates for torture (whatever the euphemism used at the time). Of course, the zen of this letter is to try to put the current DOJ lawyers who defended detainees on the same level as the former DOJ lawyers who advocated for torture and thus rehabilitate the former DOJ lawyers.

Sorry folks, even here in Toledo we can see that game and it will not work. The former DOJ lawyers clearly advocated for a crime to be committed (though the OPR report glaringly did not even look at that canon of ethics in any meaningful sense). The current DOJ lawyers advocated for the defense in adversarial proceedings. These are fundamentally different animals and no effort at equivalence should be allowed to succeed to keep Americans in the dark.

Look, my fellow Americans, you either resist torture or you acquiesce to it. There is no middle ground. If you are so fearful that you are willing to think torture is OK, then you are just joining a long line of Americans in our history who in moments of hysteria were willing to give up everything. If you are, like the top military JAG officers in that time, willing to see the detrimental consequences of torture for America and that a state crime was committed, then I would ask that you stand with people like me and seek the criminal prosecution of the DOJ lawyers from the past administration so we can wash our very dirty laundry here at home rather than in some court overseas in Spain.

I recognize the effort to get you to acquiesce to torture is sophisticated and relentless. That is what people who advocate for torture do to avoid a day of reckoning in court. And those who you do not see named are the high-level civilians who were pushing for torture in the NSC Principals, the White House, and Congress. These persons have a stake in Americans not being aware of what they really did and also in not having what they did — whether Democrat or Republican — brought out for the world to see. I would even wager that there are leaders or former leaders of other countries that helped us who do not want to see their efforts to support torture come out in the public.

But so what for the egos and reputations of these people? They besmirched their reputations by putting torture in place, by perverting our soldiers to do their bidding, and then letting the grunts at the bottom take the fall when the Abu Ghraib scandal erupted.

They are perfectly willing to instrumentalize anything, anything to prevent themselves from being prosecuted. Do not let yourself be kept in the dark. Ask for light to be brought in the cold brilliance of a court room. It may not be good politics for this or that administration, but it would be a good thing for America. When it comes out we will all know who was quiet and who took a stand against torture. And that is the choice each American has to make when the forces are attempting to spin the problem into something else so that we sweep this all under the rug.

This is not going under a rug. Not if I can help it.

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