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Why We Need a Torture Commission

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At Foreign Policy, UCLA law professor David Kaye writes that, in the light of the Justice Department’s OPR report, the case for a commission to review the failure in the process of government policy is still more compelling. Even just in the world of lawyers–who were not the only key players in this drama–the essential figures included Jim Haynes and Doug Feith at Defense, John Rizzo at the CIA, and John Bellinger, Alberto Gonzales, and David Addington at the White House. Kaye’s point is clearly right. In fact, the issue isn’t really whether some lawyers at Justice violated the essentially dysfunctional Code of Professional Responsibility. It’s whether the United States has decided to treat the prohibition on torture as a nullity. It is scandalous that our self-important political class still views the whole matter as just another policy dispute, in which the Democrats see things one way and the Republicans see them another.

[T]he bipartisan consensus against torture has fallen apart in the face of demagogues seeking to score points. So long as we avoid any process of accountability (no trials, no commissions, nothing), we can expect to remain stuck in a depressing spiral of arguments over whether torture is ever justified or legal. Israel was in much the same situation until its Supreme Court specifically held that certain practices — some mild compared to waterboarding — amount to torture, ending the public debate.

This matters also because even — and especially — if the United States does not conduct its own thorough investigation of torture, others may rush to fill in the gap. Spanish and British authorities have both been looking into allegations that their nationals or permanent residents were tortured at Guantánamo or other sites maintained by the military or the CIA. They are undoubtedly combing through the latest OPR report to determine whether they can make criminal cases against those who committed or authorized these acts. And since Bybee’s and Yoo’s memos were only aimed at protecting interrogators and officials under the U.S. War Crimes Act, they would not likely stand the test of international legal scrutiny. Accountability by a U.S. process — even if only a mechanism short of prosecution — would strengthen the argument for foreign prosecutors to stand down.

The United States needs a serious high-level accounting for the past so that we can be clear: Do we or don’t we torture? And how did we get it so wrong? In a country where rule of law prevails, an independent prosecutor would have already investigated claims of torture, determined whether crimes might have been committed, and sought charges if warranted against alleged perpetrators. Such a process would put to rest debate over what is legal and what is not. We may not live in that country, but it’s still not too late to account for our past.

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