The Empire Strikes Back: Can we get a prosecution here?

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

Today there is a report that the CIA has come back to the Senate Intelligence Committee with a harsh critique of the Senate Intelligence Committee’s 6000 page STILL CLASSIFIED report from last December.  The Senate Intelligence Committee Report says the torture was ineffective and counterproductive.  The CIA harshly critiques this in their own classified report and – guess what – comes out the other way.  The article on this is here http://www.washingtonpost.com/world/national-security/cia-report-refutes-senate-panels-criticism-of-agencys-harsh-interrogation-methods/2013/06/26/ed53a908-de8b-11e2-b2d4-ea6d8f477a01_story.html#.

Torturers say what they did was effective and productive.  Oversight people say it was ineffective and counterproductive.  Do we believe the torturers or the oversight people?

This battle would appear to be a no-brainer.  It would be much better if both reports could be brought out so independent people could read the arguments in both.  I suspect that if this kind of disinfectant were applied to this area we would see very clearly that this is merely one more CYA effort by those relentlessly trying to prevent themselves from being held accountable for the crimes that they committed.  The effective/ineffective and productive/counterproductive discussion is the kind of argument that obfuscates the underlying legal rules that say the torture was and remains a crime.

The unfortunate thing is that the game here will be one where a false equivalency will be given to the two reports in this separation of powers battle.  And, the President remains out of this fray in a politically calculated effort to avoid accountability being required for higher-ups in the present and former governments for both the crime and the coverup of the torture.

The military commissions at Guantanamo take on a further meaning in this setting as defense counsel aggressively push to “out” the secret hand of the CIA in conditions of confinement and interrogation.  One senses a multifaceted action by CIA and others to keep the secrets of the crimes down, in a time when we must insist with even greater force that this stain on our country’s honor be excised and the perpetrators of the torture brought to justice in a court of law of the United States.

Let 12 Americans stand in judgment of these torturers with an independent prosecutor and defense counsel of the defendant’s choice where judicial forms and judicial norms are respected.  Enough of the shadowboxing and Washingtonian jiujitsu.