JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says that instead of fighting over whether or not to release newly-reported US Department of Justice memos supposedly endorsing torture, the Bush administration should simply release the Red Cross's report on actual US interrogations of prisoners held at secret so-called CIA "black sites"…

Once again, secret memos that sanction torture are revealed – and once again the President denies that the United States tortures. The heads of several committees in Congress seek memos giving the impression that they did not know. Ranking Minority Members and the President say they did. What seems missing from this discussion is the facts. So it is time that Americans call the bluff.

In an August 16, 2007 op-ed on JURIST, I demanded as a citizen that the government release the recent International Committee of the Red Cross report to the United States on the CIA "black sites." From Jane Mayer’s article in the New Yorker a few weeks ago, it is clear that the President’s staff and members of Congress have seen that report. From their comments in that article it is clear that the ICRC report recites the fact that torture was (and may still be) done at the CIA black sites.

An earlier report of the International Committee of the Red Cross on Iraq is available from Human Rights Watch and that report discussed some cases that were “tantamount to torture.”

The International Committee of the Red Cross is the relevant neutral entity in the world whose job is to visit persons detained and report back to the detaining country about the conditions. They are key to the system of the Geneva Conventions to help ensure compliance. Unlike our leaders and their lawyers, they know precisely what is torture and call it like they see it.

We know that torture was done by the United States in Iraq from their earlier reports. We know that waterboarding has been done by the United States to detainees at the CIA black sites. Waterboarding has been torture for at least 500 years. All of us know that torture is going on.

It is convenient for the President and others to deny there is torture. The reason is simple. Then one can accuse the people below of crimes (malfeasance) and those close to you of making mistakes interpreting your instructions (misfeasance) without suffering any criminal liability. It is an old game played in Washington for decades. The problem is that we know the President has approved all that is happening. The buck truly stops with him.

Once the ICRC report is out, a federal prosecutor should empanel a grand jury to prosecute the high-level civilians and military generals who have violated federal law. The President may be considered an unindicted co-conspirator or material witness as regards the torture. All the lower level people who have sought guidance as to what to do should be invited to testify in exchange for immunity. We should end prosecuting low-level people for doing things that higher level people organized. We should go after the higher-ups that put this criminal policy in place.

Those in Congress who went along with this can also be considered unindicted co-conspirators or material witnesses — unless the evidence leads to a conclusion that they were principals or accessories.

Let’s call the President’s bluff and the Intelligence Committees Chair and ranking members’ bluff on this rather than go through another round of back and forth with Congress trying to get memos released.

Just release the ICRC report and let us be done with the denials, obfuscation and lies. And then let us prosecute the high-level persons who put this criminal policy in place and those who planned the policy.

In the military they talk about different spanks for different ranks. It is time for the spanks to be much more severe at the higher level than they have been in the past. Or in Latin, refluat stercus.

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