Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law, Advocates for US Torture Prosecutions
So later this morning Senator Dianne Feinstein will release the Executive Summary of the Senate Select Committee on Intelligence Torture Report. With the firestorm of news coverages these past few days, you would think that this release is the full story.
It is not.
First, it will not have the names of the actual individuals who put in place the torture program – the operators. We have the names of their bosses – we have listened to them for years defending the program right up to President Bush on Sunday. But, we do not have the names of those individuals in the CIA who in their ambition were ready, willing and able and did in fact torture people. They are known to themselves and, if somehow they did not get it already, they should note that they committed a crime and are participating in a coverup.
Second, Americans are at risk abroad by our enemies that will exploit this release of a very narrow aspect of a worldwide torture regime. I hope they are taking precautions. But, let us be clear: it is the torture that put them at risk and the coverup for the past 13 years that put them at risk. That this comes out today is simply because there has been such an aggressive efforts by those who put in place the torture to hide their crime. And they have done that through a coverup that continues to this day.
Third, we like to say that we are not like ISIS who beheads people. But, as part of the program being only partially revealed today we did behead at least one person, wrap his head carefully, and put it in a box that was transported by military from the battlefield to DC to be shown to top leaders.
(Beheading update 12/12/14 – It was an Afghan ally who beheaded a guy – no info on whether the guy was dead or alive at the time. Here it is – http://www.washingtonpost.com/wp-dyn/content/article/2006/06/19/AR2006061901211.html
“Suskind titles one chapter “Zawahiri’s Head,” a reference to Ayman al-Zawahiri, al-Qaeda’s second in command, whom Suskind cheekily dubs “bin Laden’s Cheney, the older man who made sure that ideas were carried to action.” At least four times in 2001-02, reports reached Washington that Zawahiri had died. One set of Afghan tribal chiefs said they could prove it. In June, they delivered a mud-caked head, and an intelligence officer flew it in a metal box to Dulles airport for DNA analysis. Coleman, the FBI analyst, held the jawless skull “as Hamlet did with Yorick’s.” It felt, he tells Suskind, “like a boccie ball.” Bush, who was tracking the transaction, reportedly told a briefer — “half in jest,” Suskind writes — that “if it turns out to be Zawahiri’s head, I hope you’ll bring it here.” It turned out to be someone else’s.”)
Fourth, one line of argument in defense of the program is that it was authorized by the president, briefed to Congress, deemed lawful by the attorney general and determined useful by the CIA director (See Michael Gerson – http://www.washingtonpost.com/opinions/michael-gerson-releasing-the-feinstein-report-in-the-middle-of-a-war-would-be-reckless/2014/12/08/e1dd1268-7f15-11e4-8882-03cf08410beb_story.html?postshare=4091418126020247). What, of course, that line of argument misses is that each of those persons as well as the operators were committing a crime. Why? Because, the United States has bound itself to recognize the absolute prohibition against torture. As such, neither the President, the Congress as briefed, a flawed Justice Department opinion, or a CIA director approval – alone or in combination – can get around the United States acceptance of the absolute prohibition on torture. That those persons exercised power to commit a crime is of no doubt. That low-level soldiers at Abu Ghraib were court-martialed for taking part in that scheme, there is no doubt. All we are debating with regard to this crime is how high up in the hierarchy we are willing to go for all of us know that the prosecutable persons reach right up to former President Bush. We have domestic crimes – tens of them – for which each of these persons can be tried as part of their wheel, spoke, and chain conspiracy to commit torture.
Fifth, as people were killed in the program there is no statute of limitations that applies for the underlying crime. And as the conspiracy continues to this day (you just have to watch them all on television to see that), there is a continuing conspiracy to torture and cover it up that will go on until these persons are tried in a court of law.
We should have no empathy for these torturers. It is not whether they were patriots or we were scared or whatever. They committed a horrendous crime that will echo down the ages and must never be repeated. The only way to avoid that repetition is to punish them so that future leaders will remember what happened.
We need an independent prosecutor.