JURIST Guest Columnist
Benjamin Davis of the University of Toledo College of Law says that the guilt or innocence of "enhanced interrogation" memo writers John Yoo and Jay Bybee should be determined in state or federal court by a jury of their peers, rather than under the forgiving gaze of the Office of Professional Responsibility....
The long awaited Office of Professional Responsibility (OPR) report on Jay Bybee and John Yoo was released yesterday. In the long cover memo, the US Department of Justice (DOJ) reviewer went to great lengths to explain his decision not to support the intentional misconduct (for Yoo) and misconduct (for Bybee) recommendations of the OPR and not to make a referral to the Bar Associations. At the same time, he leaves the matter up to the Bar Associations to decide whether they should take up the matter.
As happens, I was recently at a National Security Court conference held here at the University of Toledo College of Law at which torture was brought up and discussed. We were favored with the presence of Mr. John Rizzo, former Acting General Counsel of the CIA who just retired after 34 years of service. When questioned on the repeated water-boarding of Khalid Sheik Mohammed, Mr. Rizzo presented the matter (I am paraphrasing) as being one where the people in the agency said that they thought they needed to do these things and that it may be morally wrong but this was the situation.
I spoke from the floor saying that the problem was that some smart lawyers were made to reinterpret various laws and treaties and that based on this we got into this huge mess, and now some people are trying to deal with that by creating a new national security court as a new solution to the mess that has been created. This is an old game with the United States government. Sometimes it is followed by an apology 50 years later or so. I suggested the following plan of action: 1) criminally prosecute the torturers; 2) bring all of these cases we want to try in Article III courts which provide us with transparency; and 3) after we clean that up- look at what we need to do to change. I was met with the view that this is an old argument and that we should move beyond that.
I am just a citizen and I am exercising my little bit of sovereignty in a representational democracy – something I like to call “The Sparkle of Sovereignty.” I am even writing a book about that idea.
My view is that a wide variety of groups of concerned American citizens exercising their respective sparkles of sovereignty should refer the OPR report immediately to the relevant bar associations to determine whether there were ethical violations by Yoo and Bybee.
Beyond that, here is a radical concept for all these DOJ types: let a jury decide. I trust in twelve American jurors weighing the evidence competently presented by a US Attorney, and Yoo and Bybee being represented by competent defense attorneys in 1) an Article III court based on a federal prosecution by a special prosecutor or a state prosecutor pursuant to a federal officer removal act proceeding from state court or 2) in a state court to be able to examine whether these persons have the requisite
mens rea and
actus reus to have violated federal law and/or state law with regard to torture.
I think it is important in our system of separation of powers and federalism to provide the double security to the protection of the rights of the people so cherished by James Madison in the Federalist Papers. Madison wrote:
“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”
Federalist No. 51 (James Madison)
Within the federal government, it appears clear that DOJ officials tend to have a terrible time handling the pressure as they move up the hierarchy. As one person quoted in the report says, “we freaked out.” As an American citizen, I do not want the people who are subject to the public trust “freaking out” like some fifth grader. During 9/11 I was teaching a class and while there were lots of students who “freaked out,” one of the hallmarks of that class during the attack was a former Navy man who was an older fellow who said that the first thing we have to do is go back to first principles of who we are. That, I would submit, is the kind of thinking we need to embrace. Not panic and hubris.
There is an effort in the OPR report to create space for what I will call the misfeasance at the top/malfeasance at the bottom game that I noted in my article Refluat Stercus. The passive voice of “mistakes were made” — a litany from former people at the top of the Executive and Legislative — is one example of this game. Grunts at Abu Ghraib get court-martialed and the higher ups are just seen to have made “errors of judgment”.
I would like a grand jury of American citizens to hear all the evidence and decide whether to issue an indictment. I would like, if such an indictment is issued, for these defendants and plenty of material witnesses (such as John Rizzo who is named in the OPR report at key junctures) to be heard under oath in a public court providing the kind of record of their statements that helps give meaning to important trials such as Nuremberg. And I would like a jury of their peers to decide on the innocence or guilt of these people—not just the lawyers—so we can have a decision that gives clear guidance as to whether these acts amounted to a crime. Why? So that the next time someone “freaks out” because someone attacks us, when asked to do this kind of OLC memo, they will see a clear US precedent that says as clearly as possible what is a crime under our law. If that conviction fails, it also provides an opportunity to Congress to see whether it should amend out statutes to better capture torture. And, it would provide for those who have entered into international obligations with the United States an opportunity to see whether we are trying to extract ourselves from our international obligations in our compound republic in the manner that our jurisdiction to enforce, prescribe, and adjudicate is put together.
Also, under the doctrine of complementarity, it reduces the possibility of similar cases happening about Americans being brought in other countries. I suspect that even as we speak the OPR report has been sent to the Spanish prosecutor prosecuting the U.S. lawyers who helped orchestrate the torture by the United States. Let’s clean our very dirty laundry at home.
I think this is important because it is clear that whatever the administration, there is a clear manifest need for a criminal prosecution to help the high-level civilians and generals of our government in the past, now and in the future understand that “word games” of reinterpretation on something as serious as torture – will get you into a jail cell. Especially now that we know that we were lied to about some detainees committing suicide down at Gitmo – they were murdered per Scott Horton’s article out yesterday in Harper’s. Enough is enough.
Benjamin Davis is a professor at the University of Toledo College of Law
