CIA Torture: John Durham and a Leap of Faith

Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

On March 7, 2012, Politico reported in  “Detainee deaths prosecutor backs secrecy of CIA Files,”(available at http://www.politico.com/blogs/under-the-radar/2012/03/detaineeabuse-prosecutor-backs-secrecy-of-cia-files-116732.html) that John Durham, the Justice Department prosecutor tasked with conducting the investigation  and prosecution of CIA persons with regard to two detainees who were allegedly tortured overseas while in CIA hands during the Bush Administration, preferred certain CIA Inspector General reports be kept secret so as to not compromise his ongoing investigations.

In 2008, SALT had worked assiduously to get a prosecutor appointed and received a letter in January 2009 from the office of then Attorney General Michael Mukasey advising of the appointment of John Durham to examine the “torture tape destruction” facts that had come to light.  Later on, Attorney General Eric Holder expanded Durham’s remit beyond the torture tapes to focus on cases of unauthorized interrogation techniques done overseas by the CIA.  This remit, of course, severely limited cases to be investigated because it did not call into question the actions of the lawyers providing legal memoranda and the actions done pursuant to those legal memoranda that we have come to know as the torture memos.

Back in September 2009 (http://jurist.org/forum/2009/09/torture-tales-calling-john-durham.php) in an op-ed at Jurist entitled “Torture Tales: Calling John Durham,” I suggested that members of the former Bush Administration should contact John Durham to tell him about what happened with regard to torture rather than regale people at conferences about those experiences.

Be all that as it may, we see today that Durham is seeking to not jeopardize his ongoing criminal investigations by having these CIA Inspector General reports kept secret.

I support the ACLU’s efforts to have ordinary Americans gain knowledge of what the CIA Inspector General said in the twelve reports that have been made.  I do not support the government’s efforts to keep these reports secret as this is a situation where the American people need to know.

At the same time, that John Durham have a chance of a successful prosecution rather than a botched one (see Iran Contra) is also of high importance to demonstrate to ourselves and the world that criminal prosecution can and will be done when the United States tortures.

So, I hope that something can be fashioned by the judge which will allow these reports to be provided as soon as possible to bring light to these dark matters while preserving the ability to successfully prosecute those in the line of fire of John Durham.

I am making a leap of faith that John Durham, who has been appointed in a bipartisan manner, is the right man in the right place to  do the right thing for America.

As for the other reports – reports that John Durham does not feel will jeopardize his prosecutions – if he thinks release of those other reports would jeopardize potential other prosecutions in a future administration or a second term of the current administration of the legal memoranda writers and the Bush administration persons who tortured allegedly under the guise of those memoranda, then I see a further dilemma.  I would not want the release of such reports held up and I would not want those further potential prosecutions compromised.  But, given the high importance of the light of day on these things for America, let the judge make sure they are available as soon as possible.

We need to know what was done in our name – so that we can demonstrate who we are as Americans by seeking accountability of the high-level people who put this atrocity in place – or recognize our continuing shame and cowardice as Americans.   A city on a hill brings light.