JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says that in the face of disconcertedly-vague and incomplete recollections by Cheney chief of staff David Addington and former DOJ lawyer John Yoo, other officials who witnessed the development of the Bush administration's torture policies should stand up for justice and tell their stories to the people so that criminal actions by administration lawyers and other high officials do not go unpunished – or under-punished….

Watching the US House Judiciary Committee hearings yesterday I was struck by the careful similarity of litany between William Haynes, John Yoo and David Addington about their vague and imprecise recollection of all the events related to putting the Bush Administration's torture policy in place. It made me think that one of the qualities that must be sought in persons that are in these positions is the uncanny ability to fail to remember things — a sort of specialized "Torture Alzheimers". And the assertions of privileges that have been invoked by the current US Office of Legal Counsel head Stephen Bradbury (who has written his own torture memos) to ostensibly keep the former Office of Legal Counsel person, John Yoo, from speaking plainly about what went on is one extraordinary case of chutzpah — up there with the boy who killed his parents asking the court for mercy as he is an orphan. The left hand washing the right hand…

One part that struck me was the questioning about what can be done about the lawyers. The questions went two ways: 1) can a person be insulated from prosecution for having done things that common sense tells them are torture by relying on a legal memo and 2) is there any remedy that can be sought against a lawyer who writes an outrageous opinion? On the first question, there seemed to be a glimmer of recognition that those persons who actually do the torture could be prosecuted notwithstanding the reliance on the outrageous memo. On the second question, I must say I was struck by the comments that the only possibly remedy against the offending lawyer in this setting is bar discipline. Such solicitude! It seemed that no one dared speak of the possibility of high-level civilian lawyers being criminally prosecuted. Maybe that is just considered bad form at this level of government.

The concern expressed was with the people who have to do these dirty deeds and making sure that they do not have the rug pulled out from under them at a subsequent point. Of course, that is nonsense — the concern of Addington and Yoo and the persons with their hands all over the torture is that their own skin be saved. That was proved very clearly in the perfect willingness to allow the prosecutions of those low-level people at Abu Ghraib to go forward and the white-washing with regard to anyone who wore a star or a suit at higher levels. Anybody remember such solicitude expressed for Specialist Graner and the other so-called “bad apples”?

What we can glean is that there was a great deal of lawyer-to-lawyer discussion going on through the general counsel’s offices of the intelligence agencies, the Department of Defense, the White House, and the Department of Justice about what could or could not be done. And we also have confirmed again to us that the Speaker of the House and ranking members of the relevant Senate and House committees were most definitely in the loop to some extent about the policy, the legal analysis, and what went on. Nary a word of objection during all those years.

I am in Toledo, Ohio. I am not privy to all the inner sanctums where all these discussions went on. I am a mere citizen. I would just like to say that, notwithstanding all the artful dodging that went on in this hearing and in previous ones, I, as one citizen, am not duped. I know from the contours that torture was ordered from the President on down, that the lawyers wrote the convenient memos to make it possible, and that people have been tortured, murdered, and driven insane in several places in the world by this illegal policy of my government.

And as a citizen, with my little spark of the sovereign in our democratic system, I will not stand for it. I insist that the members of Congress open the windows, the Executive branch open the windows, and the Courts use their powers to order the windows open so that we can get to the bottom of this.

Not in some future administration, not in some future report. Now. Today.

I want to see this Attorney General stop “playing footsie” (legal term) and open an investigation and prosecution. There are plenty of people who saw what was going on who can come forward and speak about the roles of high-level civilians in putting torture in place. These policies did not drop from the sky but were concocted. I am certain that there are plenty of mid-level people in the government who know exactly where the dogs are buried in this setting and they are keeping quiet out of fear of retribution.

For all those people keeping quiet, I have a quote for you from a Martin Luther King, Jr. sermon “But, If Not” that one of my students brought to my attention, to wit:

You may be 38 years old, as I happen to be.
And one day, some great opportunity stands before you
and calls upon you to stand up for some great principle,
some great issue, some great cause.
And you refuse to do it because you are afraid.
You refuse to do it because you want to live longer.
You’re afraid that you will lose your job,
or you’re afraid that you will be criticized
or that you will lose your popularity,
or you’re afraid that somebody will stab you,
or shoot at you or bomb your house;
so you refuse to take the stand.

Well you may go on and live until you are 90,
but you’re just as dead at 38 as you would be at 90.

And the cessation of breathing in your life is but the belated announcement of an earlier death of the spirit. You died when you refused to stand up for right. You died when you refused to stand up for truth. You refused to stand up for justice.

-Dr. Martin Luther King, Jr.
From the sermon “But, If Not”
delivered at Ebenezer Baptist Church November 5, 1967

Where are the people in the Executive, Legislative and Judiciary who will stand up for right, for truth, and for justice on torture? Is that too much for a citizen to ask?

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