Resist Torture or Acquiesce? A Question for Americans

JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says that CIA chief Michael Hayden's recent admission to Congress that three "high value" terror detainees were waterboarded by US interrogators begs the question of whether American citizens will acquiesce in this state lawlessness because the torture was done by our government to foreigners considered to be leaders of our enemy, or will resist torture by pressing for the prosecution of high-level American civilians for authorizing war crimes commited against the laws of the United States...



General Michael Hayden publicly acknowledged this week that the United States waterboarded three Al-Qaeda persons in the 2002-3 period. According to White House spokesman Tony Fratto, the then-US Attorney General and the President are presumed to have been the officials approving the use of such interrogation methods.

Notwithstanding the disappointing parsing previously engaged in by Attorney General Mukasey and others with regard to the point, let us be clear — waterboarding is torture in U.S. domestic law and as a matter of international law. There is no need for new law on this point as the current law is sufficient to prosecute waterboarding. There is no room for doubt except if one is trying to protect someone who did this torture. Read Evan Wallach's Drop by Drop: Forgetting the History of Water Torture in United States Courts, 45:2 Columbia Journal of Transnational Law (2005). Also, read Jordan Paust's Beyond the Law (Cambridge 2007) for legal analysis of the question of torture.

At least three domestic and international war crimes were therefore committed in 2002-2003 under authorizations that went at least to the then Attorney General John Ashcroft and most likely to President of the United States George Bush. These persons are therefore "persons of interest" in helping us determine whether they are in fact principals (including accessories before the fact) and accessories in federal crimes including conspiracy that I detail in some length in my forthcoming article "Refluat Stercus". In addition, all those who knew of these crimes and kept them from prosecution are similarly persons of interest with regard to being accessories after the fact with regard to the cover-up of these crimes.

We thus have a group of potential defendants and we have an admission that acts that are torture were authorized and did occur. The question for American citizens is therefore whether we will acquiesce in this state lawlessness because the torture was done by our government to some foreigners who are considered to be leaders of our enemy. If we do that, then we are acquiescing in U.S. government torture. On the other hand, if we seek that the perpetrators of government lawlessness be criminally prosecuted for what they did or authorized then we are resisting U.S. government torture.

The defense that they will attempt to raise is something like the reasoning described by General Hayden that ""We used it against these three high-value detainees because of the circumstances of the time. Very critical to those circumstances was the belief that additional catastrophic attacks against the homeland were imminent." No ticking time-bombs (as if that was an excuse). Just good old torture out of ignorance and fear. Panic and improvisation in derogation from U.S. law and international law.

I hold no brief for the persons tortured. If they are as bad as they are said to be, they can go to hell. I do hold a brief for the United States. And I would submit that the damage done by this government lawlessness to the American cause is devastating. I believe this because we are considered torturers wherever we go. We might as well wear "scarlet Ts" on our heads as we go through the world. Nothing we say about what we are doing to protect ourselves has meaning because it is so tainted by the torture that we have had done in our names.

I do not for a minute believe that waterboarding is the only form of torture that has been done by the United States government. I do not for one minute believe that torture was done to only a small group of people. The information we hear from the different fronts in the War on Terrorism tells us the opposite. We can just look at the experience at Abu Ghraib to know that torture has been done in many places as authorized by this government with bipartisan acquiescence of Congress.

As you know, persons who have alleged being tortured by the United States have sought redress in many civil cases that have been dismissed for state secret grounds over the past seven years. That effort to get dismissals continues.

I would like Americans to now INSIST that this Attorney-General lead on this issue or get out of the way. Attorney General Mukasey should criminally prosecute former and present Administration figures who are or were principals and accessories in this torture. He should also look to members of Congress to determine whether some of those who were briefed on this can be charged notwithstanding Speech and Debate Clause concerns.

In short, to reestablish American standing with Americans and with the rest of the world, the high-level civilians (including the lawyers) and military generals who put in place this monstrous policy need to be criminally prosecuted for what they put in place and condoned. If American civil society sincerely believes that torture is un-American, then I ask my fellow citizens to do what is necessary to have these persons stand in a court of law and have their fate determined in fair criminal trials. If we are not willing to prosecute our high-level civilians for what they had low-level persons do, then we are saying there are two laws at work — one for the powerful and one for the minions. The minions do not deserve to be treated that way. The powerful need to understand that the United States considers what they did was a crime against the United States that has caused us extreme prejudice. Criminal prosecution is the means to extremely repudiate those high-level civilians and generals. Refluat Stercus.


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