Dean and Distinguished Professor of Law, University of California, Irvine, School of Law
The public revelation of internal Department of Justice memos authorizing torture leave no doubt that there
needs to be a thorough investigation of what happened and likely prosecutions of those responsible. In early
April, Attorney General Eric Holder released a series of memoranda from the Bush era that authorized extreme
interrogation techniques used by American military and CIA officials. The memos are truly chilling in describing
what was done to some detainees.
From the time of George Washington, the United States always has prided itself on humane treatment of captured prisoners. The United States was instrumental in crafting the Geneva Accords, which ensure humane treatment of those held during wartime. Both a federal statute and a treaty ratified by the United States prohibit torture.
Over the last year, there have been horrific descriptions of torture at the hands of American soldiers and operatives. Jane Mayer, in her magnificent book The Dark Side, describes in detail individuals being tortured, including some who were apprehended by mistake. She tells of an individual dying as a result of torture administered in questioning. The Red Cross issued a report corroborating much of what is in Mayer’s book and again documenting torture inflicted by Americans and at the direction of Americans.
Some still denied that torture really happened. But the new memos from high level officials in the Department of Justice leave no doubt that torture was authorized at the highest levels of American government. The techniques described are unquestionably cruel, inhumane and degrading treatment, which is forbidden by international and American law.
The memos authorize many techniques including waterboarding, making a person feel like she is drowning, which has been regarded as torture throughout the world since the early 20th century. Prisoners were shaved and stripped naked and required to stay that way through long periods of time wearing only a diaper. Prisoners were subjected to sleep deprivation of up to 96 hours. They were forced to stand in uncomfortable positions for long periods of time and often suffered excruciating pain.
The question is what to do about it now. For some, the temptation is enormous to want to turn away and look to the future. But this would be a huge mistake. The only way to ensure that the country never does this again is to expose what happened and prosecute any violations of the law. Also, the most basic legal precept in the United States is that no one is above the law. If there were law violations, even at the top level of government, there must be prosecutions.
The first step must be to ascertain what happened. Did torture occur, as described by Jane Mayer and the Red Cross? If so, what was done and how often did it happen? This needs to be thoroughly investigated. One way to do this would be for a prosecutor to convene a grand jury to investigate this. A grand jury is a traditional way of investigating possible crimes. Grand juries have subpoena powers and are very effective in gathering information. The problem with this approach is that grand jury proceedings are in secret and there is much to be gained by everything being in the open to the greatest extent possible. The country needs to know what exactly happened and why. There may be some classified information that needs to be kept secret, but the presumptions should be for openness. Bush administration officials fought hard to keep secret the torture memos released in April and the desire for a cover-up must be resisted.
Another option would be for the process to begin with a nonpartisan truth commission to fully investigate any allegations of torture by American personnel. This commission would have as its mandate to conduct a thorough and full investigation. Senator Patrick Leahy and Representative John Conyers have proposed just this.
If there is evidence of criminal wrong doing, then the question shifts to identifying and prosecuting those responsible. Torture of the sort described in by Jane Mayer, the Red Cross and the Department of Justice memos violates American and international law. According to Jane Mayer the torture that occurred stemmed from the policies implemented by top Bush officials, including Vice President Dick Cheney, his aide David Addington, University of California, Berkeley School of Law John Yoo, and Jay Bybee, now a federal court of appeals judge. Bybee and Yoo wrote memos saying that the United States could ignore federal laws and treaties prohibiting torture and that the president could unilaterally change the definition of torture.
The key legal question is whether the memos and the actions of this group provide a basis for criminal prosecution. Some argue that the memos directly led to the torture and thus the authors share the responsibility for what happened. If it can be shown that these memos created and implemented a policy that violated the law, then their authors are criminally liable.
Former Vice President Dick Cheney has been unrepentant and has given a series of speeches defending torture as a means of gathering evidence. There is actually little evidence that torture works. Other nations, such as Israel have repudiated torture on the ground that it seldom yields useful information. Individuals being tortured will say anything to end the physical and emotional pain, but that doesn’t mean that useful information is gained.
And even if torture produces some useful information, it is still wrong. There are some things that human beings never should do to one another. Perhaps there might be some extreme case where torture is necessary to keep a ticking time bomb from being detonated. But that is not what occurred for the last eight years. There must be a thorough investigation followed by prosecutions where appropriate. The rule of law demands no less.
The need to investigate whether crimes occurred and to prosecute if they did should not be a partisan issue. Everyone, regardless of political party, gains if the truth is known.
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