Torture Must Be Punished

Published on Thursday, July 9, 2009 by The Baltimore Sun

Justice requires hearings, prosecutions at the highest levels against those who sullied our nation's cherished values

by Susan Goering

America is at a turning point. How we will come to terms with the government abuses unleashed in the aftermath of 9/11 is a historic test of our highest principles. Are we a nation of laws? Will we stand by our commitment to the rule of law over the tyranny of state-sanctioned brutality?

Maryland's particularly powerful congressional delegation in Washington can be pivotal as the nation chooses how to proceed. And, of course, members of Congress will more likely rise to the occasion if they hear from the public they represent.

Ongoing revelations of the United States' interrogation, indefinite detention and rendition practices provide growing, indisputable evidence that the United States tortured its detainees in violation of our laws, our Constitution, and the U.S.-ratified Convention Against Torture. Restoring the rule of law means mounting an independent, neutral investigation and prosecution of criminal wrongdoing. It also means effective congressional oversight and checks on abuses of executive power. Our democracy endures because through the decades we have been willing to publicly examine our misdeeds, acknowledge our wrongdoing and hold ourselves accountable.

This issue is still very much with us. Just last week, the government announced it will not release an Office of the Inspector General report on the CIA's interrogation and detention program before Aug. 31 -- this after promising a judge to the release the report and then reneging three times. It fits a pattern of obfuscation and delay that has, depressingly, carried over from the Bush administration to the Obama administration.

But even without full access to that report, we already know much about what went so horribly wrong. Bush administration officials at the highest levels authorized widespread and systematic torture and abuse of U.S. detainees. The evidence comes from an increasing number of sources: congressional reports, journalistic investigations, detainees' own accounts, and even from admissions by the U.S. officials themselves.

The ACLU's Freedom of Information Act lawsuit has produced hundreds of thousands of pages of revealing government documents, including the now infamous Justice Department memos laying out the allegedly legal framework for the Bush administration's torture policies. And right now, there are thousands of photographs depicting detainee abuse in oversees prisons that President Barack Obama's administration continues to refuse to release. The images would serve to confirm the pervasive and orchestrated nature of these crimes.

The question is no longer whether these acts were torture but how we will respond to them. Susan Crawford, the Bush-appointed head of the Guantanamo military commissions, confirmed that the use of stress positions, sleep deprivation, dogs, and forced shaving on detainee Mohammed al-Qahtani were torture. The current U.S. attorney general and the head of the CIA agree that waterboarding is torture -- and, of course, torture is a federal crime.

Yet, to date, nearly all of the people prosecuted for detainee abuse and torture have been privates and sergeants. Indeed, only one civilian has been prosecuted for torture or abuse crimes. Those at the highest levels who cynically manipulated the law to authorize torture have yet to be held to account. Rather, the Obama administration continues to shield implicated officials by resisting disclosure of torture photographs, refusing to give the courts evidence of torture and rendition programs, and asking for suppression of significant portions of the CIA inspector general report.

What should be done to bring integrity back to our constitutional democracy?

First, the public has a right to know what took place in its name. Rule of law means that no one is above the law. The ACLU is calling on Attorney General Eric Holder to appoint an independent prosecutor to investigate and pursue appropriate prosecutions. And Congress needs to play its proper oversight role, appointing a select committee (consisting of members of Congress and their staff) to study current and past national security practices, to identify and correct abuses and to enact legislative reform. There is a bill in the House that would create such a committee.

The effect of these remedial steps would not be, as some have suggested, to criminalize politics. On the contrary, to attempt to "move on" while standing on a foundation of unacknowledged criminality would be to politicize criminal conduct.

Finally, the ACLU calls on all Americans to join us in restoring the rule of law. As a nation of laws, we must hold ourselves accountable to the laws -- the only way to prevent a dark legacy of torture from casting a long shadow on a bright future for democracy.

Copyright © 2009, The Baltimore Sun

Susan Goering is executive director of the ACLU of Maryland. Her e-mail is goering@aclu-md.org. Information available at www.aclu.org/accountability.