The recent announcement that two cases of torture at the CIA would proceed and dozens more would not be prosecuted has caused consternation. Some say that this is not enough while others say that even this is too much.
My reaction is different. These criminal prosecutions are a significant breach in the omerta of the CIA and other intelligence agencies with regard to their role in the torture. These two prosecutions provide an opportunity for a public reckoning with regard to two particularly egregious cases. These prosecutions provide an opportunity for the defendants and other witnesses to "flip" and provide information to prosecutor John Durham.
Of interest will be to see how these prosecutions go forward. In the face of an indictment, will these defendants plead out to lesser charges in order to make the matter go away? If so, what kind of deal will be cut for thema slap on the wrist similar to the Leipzig Trials or more like Nuremberg or some other form of international criminal tribunal? Will the threat of such prosecution actually going forward loosen the tongues of various persons "in the know" that will now go and speak to Durham as I have asked for some time? Or are the protagonists of the torture silently hoping that we forget about them in their corners around the world?
In the other cases that the Bush, and now the Obama, administrations are trying to quietly put to bed, one should not come to the conclusion that anyone has been exonerated. All that has happened is that the "reliance on legal advice" defense that has been the structural predicate to Durham's investigation has provided the cover that US Attorney General Eric Holder intended. Notwithstanding what torture apologists are always quick to assert, no one is exonerated by these decisions to not prosecute. It is patently obvious from the report issued by the Office of Professional Responsibility (OPR) and the Margolis report that no one at Department of Justice (DOJ) wants the precedent of a criminal prosecution of the lawyers for their advice on "how to torture without calling it torture." To save the lawyers from criminal prosecution, DOJ appears happy to countenance the torture. That is the box Durham was put in to, and until someone has the guts to go higher that is where America sits. So much for the rule of law.
We must remember that these things sometimes take time for citizens to understand what they have at stake and for more citizens to insist on accountability by the higher ups. Rather than despair, we should embrace this further step forward toward a final reckoning about the torture done in our names. If further persons at the bottom are convicted and punished the fundamental unfairness will be even more apparent than before. I hope the revealing of this unsustainable inequity based on nothing more or less than executive power attempting to preserve itself from accountability helps to change the dynamic. That way we move farther up the ladder to the real perpetrators who instigated these abominations out of cowardice and fear.
Refluat stercusmake the blame flow uphill, back to the commanders. We are knocking at the doors of the CIA and other intelligence agencies and insisting that they be accountable for their torture crimes. Each time that American citizens do not acquiesce but continue to insist on prosecution of the high level civilians or military generals we strike a blow against the rock of state. We chip away at the certainties of those at the top, making them question how well-founded their actions were, and see their error. We must continue to build the spirit of understanding that will help our leaders see beyond the narrow concerns that animate them today toward the powerful opportunity they have to redress grievous injuries and renew with the best instincts of the human race and America.
We must all recognize that the courage to do the right thing is hard to come by, particularly in an environment where there is a relentless effort by powerful persons (who no doubt see themselves at risk of prosecution) to have us stop resisting their efforts and have us accept torture in our name. However, in all being indomitable and insisting, slowly but surely the tide will turn. These persons will face their accusers and come to understand the shame they have caused for themselves, for their families and friends, for the American soldiers and intelligence community types defending us, and for America.
Benjamin Davis is an assistant professor of law 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.
Suggested citation: Benjamin Davis, Refluat Stercus: Torture Investigation Must Extend to Commanders, JURIST - Forum, July 7, 2011, http://jurist.org/forum/2011/07/benjamin-davis-torture-investigation.php.
This article was prepared for publication by Jonathan Cohen, the head of JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org