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Published: Tuesday, 5/26/2009

If Americans insist, our leaders will prosecute

BY BENJAMIN G. DAVIS

AS THE debate intensifies in Congress over who knew what about torture and when, U.S. citizens should not sit on the sidelines.

We should insist that the high-level civilians and generals who ordered, authorized, and put in place the torture in the past regime be prosecuted - just like the low-level uniformed soldiers who did their bidding in Iraq and Bagram who were court-martialed, served or are serving time, and were dishonorably discharged.

The only way that this prosecution will happen is if Americans insist that our political class come clean on their role in the torture and the organizers are prosecuted.

That is why the Society of American Law Teachers wrote to then-Attorney General Michael Mukasey in August, 2008, asking for such a criminal investigation and prosecution.

In January, 2009, the Society of American Law Teachers were pleased to hear that Mr. Mukasey had authorized John Durham, a U.S. attorney from Connecticut, to go down to the Eastern District of Virginia to criminally investigate and prosecute those who destroyed the "torture tapes" of Al-Qahtani, a detainee held at Guantanamo Bay. A grand jury is empaneled, and Mr. Durham is conducting his criminal investigation even as I write.

That is why the Society of American Law Teachers wrote again on Feb. 29, to President Obama, urging his administration to expand the scope of John Durham's investigation and prosecution to all aspects of the illegal crime of torture put in place starting in December, 2001.

That is why a broadly based group of 200 organizations called on May 12 for Attorney General Eric Holder to appoint a special prosecutor for criminal investigation and prosecution of the alleged crimes committed.

That also is why on May 18, simultaneously across the country, numerous individuals and organizations filed licensing complaints with bar associations in the District of Columbia, New York, California, Texas, and Pennsylvania against the 12 alleged "torture lawyers" of the past administration seeking their discipline and disbarment.

Based on publicly available documents, I have made a list of 50 persons of interest (some who may be witnesses, others who would be defendants) and the types of federal crimes that were committed. If I can do that sitting in Toledo, I see no reason why a person in the halls of government cannot do better.

After 9/11, the political class panicked when it allowed torture to occur and betrayed the real America. Not the America of the rabble-rousing crowds at lynchings, but the America that is the city on the hill.

Last Thursday, President Obama and former Vice President Dick Cheney spoke to us about national security. The problem of people we hold at Gitmo and other terrorists we may hold in the future was described, and that there are some of them for which justice in the form of court, court-martial, and, if necessary, military commissions when courts or courts-martial are not available.

Why is it that justice so long wished for is not possible? Because, for people like Abu Zubaydah, Khalid Sheikh Mohammed, and Mohammed Al-Qahtani, the evidence that was gathered on them and from them is tainted by the torture regime that was put in place at Gitmo, in the battlefields of Iraq and Afghanistan, and in the secret black sites that were run by the CIA.

To keep America safe, we cannot turn a blind eye to torture done in our name that now prevents us from bringing people to justice.

At the same time, we must assure that these enemies are defeated and proceed in a manner so that they can be brought to justice, just as Justice Robert Jackson, chief prosecutor at Nuremberg in 1945, insisted: through judicial procedures that are fair and comply with the law.

Mr. Cheney defended the enhanced interrogation techniques that he assures us worked and were lawful. All evidence from past use of torture that has become available says he is flat wrong.

Why does he continue to defend this? He was at the heart of the torture and to defend it is to defend himself from criminal prosecution. We should not let his words of fear make us depart from American values that have stood well for more than two centuries.

Mr. Cheney appears to be defending the CIA types with whom he had an office to oversee the minutiae of the torture program. At the same time, he sacrifices U.S. soldiers who were court-martialed, served time, and were dishonorably discharged for following the same legal advice as the CIA types were given and doing his bidding in Iraq and Afghanistan.

America must insist that torture apologists like Mr. Cheney cannot have it both ways. If soldiers go to jail, then the persons giving the orders they followed should go to jail.

The consequences of torture are painful and run deep for America. After Abu Ghraib, they sapped our resolve at home and weakened our alliances abroad. Those who put the torture policy in place must be prosecuted so there is a marker for the future that America defends itself with its values. Torture weakens us.

It is time to renew what is best in us, while we fight those who wish us ill, to win the terrible struggle with which we are confronted.

I know it is hard for some to imagine elite members of government being tried in a public court in this country. But that is precisely what we need to get to in order to 1) have the full public record under oath and 2) have an American jury of peers under the law convict or acquit.

The Spanish moved ahead with criminal investigation of six of the former high-level lawyers who authored the "torture memos." The Spanish court has written to Mr. Obama asking whether the United States intends to prosecute. The United States has an obligation to investigate and prosecute under the Convention Against Torture and Other Forms of Cruel, Inhuman and Degrading Treatment, but it will not do so unless Americans insist that our leaders do the right thing.

We should not continue to dither about criminal prosecution of the high-level civilians and generals. After all, we have prosecuted the uniformed soldiers who did their bidding. It is not a question of whether to prosecute, it is a question of how high up we wish to go.

As Americans, we should not count on our political class to do this because many of the leaders were briefed at the time or shortly after as to what was going on. Which briefings were complete and which were not is "inside baseball" in politics.

The point is that once they were briefed, what did these leaders do? It is patently clear that leaders of both stripes did nothing or not enough, rationalizing their acquiescence.

We can stick our heads in the sand. But to do that is to renew the worst in us. It is to allow the small fry to be hurt and to let the powerful get away with what they put in place.

It is to say that these are not crimes of a few lawless leaders, but crimes of the United States of America. I will not stand with those who would besmirch the honor of our country.

We cannot reclaim our good name for ourselves and around the world unless we show the willingness to take this on. Moreover, by doing so we send a message to those who torture their citizens or others wherever in the world torture remains one of the highest international crimes.

The will to do this will come from each American. At 53, I never imagined I would have to write to my fellow citizens, telling them that we must insist that our government cannot torture. It is important for us, and for future American governments, to know that if they go down this path, they will be prosecuted. We must fight the pressure to leave this horrible precedent on America's soul. Not in some future apology, but in a criminal prosecution today.

Benjamin G. Davis is an associate professor in the University of Toledo college of law, a member of the Robert Jackson Steering Committee that organized the effort at www.specialprosecutor.us, and a board member of the Society of American Law Teachers www.saltlaw.org .



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