Ending Torture, Prosecuting the Torturers

By BENJAMIN G. DAVIS

Recently released reports confirm that the United States still has very important unfinished business with regard to torture. Civilians at the highest levels of government as well as military generals have committed crimes. Secretary of State Condoleezza Rice, State Department Legal Adviser John Bellinger, and documents from 2003 and 2004 provide further evidence that the White House endorsed the use of torture. The Department of Justice, Department of Defense, Department of State, Intelligence, and other leadership have all been complicit. Congressional leadership has been far too passive and encouraged these acts. These are bipartisan crimes. They are crimes against the United States and the world community.

As usual, we read in the press that no one will prosecute these crimes. They will if we insist.

We need to criminally prosecute the perpetrators. We must prosecute them because low-level soldiers ordered to do their bidding have been prosecuted. Soldiers who served at Bagram and Abu Ghraib have been court-martialed for the heinous acts they were ordered to and urged to perform on detainees. These soldiers, sons and daughters from decent, ordinary American families, are serving life sentences for betraying their oath. It is time that their leaders who ordered them to betray their oath face the music. No one gets a pass just because they are high up.

These leaders not only consider themselves above the law, but above the United States. We need to prosecute them to reaffirm who we are as Americans. We are not vicious torturers. These people have no place in our city on the hill.

In September, the Massachusetts School of Law hosted a conference that resulted in ordinary American citizens coming together and forming a Steering Committee to develop the political will and the actual prosecution of these high-level civilians and military leaders. We ask all persons of goodwill to join us in this effort.

The range of actions we encourage are:

1) impeaching President George Bush before he leaves office particularly if prior to leaving office he tries to pardon himself and those who have done his bidding in violation of United States law. In the absence of that impeachment and consistent with precedent we should impeach him after he leaves office for crimes committed. Impeachment would ensure that President Bush could not hold any federal office on commission etc. for the rest of his life.

2) impeaching Judge Jay Bybee of the Ninth Circuit. Judge Bybee signed the infamous August 1, 2002 torture memo ascribed also to Professor John Yoo at the University of Berkeley School of Law. It shocks the conscience that a person who enabled torture is permitted to sit on a federal bench.

3) criminally prosecuting high-level civilians in state courts. The legendary Vincent Bugliosi knows how to do it.

4) criminally prosecuting civilian and military leaders in federal and military courts. There are 2700 state prosecutors across the country. American families all over have suffered the loss of a loved one or live with an injured member who served in wars started by President George Bush. Some of these families are willing to assist their state prosecutors in seeking criminal trials. If a sufficient number of these cases are brought forth, a federal prosecutor might initiate a prosecution, notwithstanding Attorney General Mukasey's unwillingness to faithfully execute our federal laws with regard to criminal prosecution of these leaders.

5) removing from academia former Bush administration officials who created and put in place the torture policies and practices. Ordering and abetting torture has nothing to do with academic freedom.

6) encouraging, to the extent courts allow, "citizen prosecutors" to exercise citizen mandamus and step in to prosecute where their state or federal prosecutors have failed to act. This was attempted recently in Minnesota to permit a citizen arrest of President Bush for murder if he came into St. Paul to attend the Republican Convention.

7) organizing peaceful civil actions that convey to those holding the levers of power in the Executive, Legislative and Judicial branches that we intend to vindicate United States law and United States international obligations and hold them accountable.

8) Seeking assistance from foreign and international tribunals to make sure that these perpetrators serve time for their crimes.

It is abundantly clear that President George Bush ordered torture. By dehumanizing others through torture and murder he dehumanizes America and Americans. Criminal prosecution is a viable means to demonstrate the importance for Americans of the most basic rules of US and international law. Let the world know that we are not barbarians.

Benjamin G. Davis is an Association Professor of Law at the University of Toledo School of Law.

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