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Torture Tales: Calling John Durham

JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says that justice would be better served by former Bush Administration officials if they would talk to federal prosecutor John Durham about the administrative missteps that led to detainee torture at Abu Ghraib and Guantanamo Bay instead of saving their stories for crowds at high-profile conferences....

Upon returning from “After Guantanamo,” a debate held on the eighth anniversary of 9/11 at Case Western Reserve Law School where members of the former administration regaled the audience with stories about the mistakes made and the arrogance demonstrated by persons with whom they had worked on the issues of detention, interrogation, and military commissions, something occurred to me...

With the bipartisan appointment of John Durham (first by Mukasey and now by Holder) to investigate and prosecute low-level CIA types with regard to departures from the bad legal advice given to them by the torture lawyers, it would seem preferable for the former administration members to tell their stories to the federal prosecutor rather than to audiences at conferences. After all, the stories of arrogant disdain for military lawyers (“they can’t be good or else they would be in the private sector” was a comment reportedly said by someone of consequence in the prior administration), the sheer lack of knowledge of the basics of military law (Manual for Courts-Martial, anyone?), and the general indifference of those tasked with developing detention, interrogation, and military commission policy in the prior administration to the changes in military law that have occurred since Ex parte Quirin were simply appalling.

Names were not named in the conference, but names should be named to John Durham. He is permitted to “follow the facts wherever they lead,” but if those lawyers, other civilians, and uniformed types who know where the dogs are buried refrain from coming forward, they will make the task more arduous than it needs to be.

Everyone who has a story is a witness in piecing together what really went on. Every lawyer has also sworn an oath to be an officer of the court and is under an ethical duty to refrain from abetting crimes. Help John Durham find the facts.

But beyond legal or ethical obligations, the real question is of what these architects of detention, interrogation, and military commission policy are made of. Are they made of the stuff that led Specialist Darby to clearly see what was wrong with detainee treatment in Abu Ghraib, thus prompting him to provide Military Investigators with the incriminating photos? Or are these persons made of the stuff of cowards that hope this will all go away if they do not say anything to anyone– posturing in public and cowering in private?

As we all know, in DC there are crimes and there are cover-ups. Every time a document is released with blackened pages provided by some intelligence or military office of the government, we know that the censorship is based partly on classic bureaucracy; not on national security alone.

I would go a step further. As we all know, a criminal prosecution against six lawyers of the previous administration has started in Spain. Having seen many of them valiantly defend the apocryphal work they did, surely they would seek to defend their reputations by flying to Spain to voluntarily advocate for their own honor in front of the Spanish court. Or is that too much to ask of torture lawyers? I am sure tickets to Spain can be bought at a reasonable price online.

If that is too much to ask, then man up and call John Durham; especially if you are a professor playing a role in shaping future lawyers and other students minds. Surely one can expect these persons to be honorable men and women and help John Durham. Is that too much to ask? Or have the mighty been brought low by what they know?

If your memory does not serve you as to how to reach John Durham, just try the Department of Justice main switchboard number at 202-514-2000. I am sure they will put you through.

Benjamin Davis is a professor at the University of Toledo College of Law

September 18, 2009

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We should be concerned that John Durham is charged with investigating how the C.I.A.'s agents' or contractors' behavior departed from C.I.A. guidelines, rather than how it departed from the law. Our constitution enumerates the legitimate sources of law, and it's clear that it can't be promulgated in the Executive branch.
Let the department of Human Resources enforce the C.I.A's guidelines. The Department of Justice is charged with seeing that the law is faithfully executed.

September 18, 2009  


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