Jonathan Tracy [Assistant Director, National Institute of Military Justice]: "Several reports, including the recent Senate Armed Services Committee Inquiry into the Treatment of Detainees in U.S. Custody [PDF file], confirm that U.S. agents committed or tolerated abuses. Further, the evidence indicates that since September 11, 2001, violations of U.S. law, international human rights law and international humanitarian law have been approved by senior administration officials and carried out by U.S. military and civilian personnel. I hope that once in office, President Obama will not allow these events to pass ignobly into the dark recesses of history. The American public deserves a full accounting of what its representative government did in the name of security. To do otherwise would continue the erosion of America's moral standing in the world, and, more importantly, give further credence to the undemocratic notion that certain individuals and offices exist above the law.

The U.S. military considers the obligations imposed by the law of war binding upon every soldier, sailor, airman and marine. A Department of Defense Regulation requires that all service members must comply with the law of war "during all armed conflicts, however such conflicts are characterized, and in all other military operations." The prohibition against torture and cruel, inhuman, and degrading treatment has long been considered a violation of the law of war. Corresponding articles of the Uniform Code of Military Justice, the law that governs the prosecution of military personnel, criminalize acts by service members that constitute ill treatment of captured persons. However, an important goal of military law is to not limit responsibility to the lowest persons in the chain of command. The principle of "command responsibility" has long been a theory of liability in military prosecutions. Basically, senior officials can be legally responsible for illegal actions of subordinates when the commander ordered the illegal act, knew of the act, either before or during its commission, and did nothing to prevent it, or should have known and failed to take necessary and reasonable steps to insure compliance with the law of war. Based on this principle, prosecuting only lower-level soldiers is not enough when some responsibility belongs to senior commanders and administration officials. Instead, there must be a thorough investigation and accounting on all rungs of the chain of command.

I believe that early in his administration, President Obama should appoint a non-partisan commission to examine, and provide a comprehensive report on, allegations of detainee abuse and on the policies and procedures that were implemented by all relevant government offices and agencies. When evidence indicates that senior officials bear responsibility the law must be used to deliver justice. One of the cornerstones of a liberal democracy is that the government will operate openly. Such openness is an essential check on government abuse and the arbitrary application of power. But years of secrecy have diminished this principle, further eroding our democratic principles. To stem this erosion and regain our stature and commitment to democracy, President Obama must allow for an open and comprehensive investigation of this sad chapter in our history. This will allow us to chart a new course."