Why the Torture Memos Matter

[Bennet Kelley]

WHY THE TORTURE MEMOS MATTER

by Bennet Kelley

"(The issue of torture) has nothing to do with al Qaeda, (but) it has everything to do with America." Those were the words of Senator McCain in 2006 -- he was absolutely right. The conduct of torture and other atrocities by the state is something that reflects upon us all as a nation.

I invite anyone to visit the War Museum in Saigon and stand, as I did, in front of a wall of images from the Mai Lai Massacre (in which about 500 unarmed civilians were tortured and killed) with my Vietnamese translator and tell me they do not feel any sense of shame as an American or want the people of Vietnam to understand that is not America. Standing in that museum or any future Iraqi museum featuring Abu Ghraib, you will understand that the current furor over Bush era torture policies is not an esoteric legal debate, but rather is a fundamental statement about who we are as a people.

We Americans are unique as nation in that we are united not be a common ethnic or religious heritage but by a belief. A belief that we are a nation of laws not men founded based on the recognition that "all are endowed with certain unalienable rights" which ultimately is expressed in the covenant between our Founders' and future generations that all officeholders, such as the authors of the Torture Memos and their superiors, were sworn to uphold.

Throughout the nation's history, our leaders have rejected the use of torture. This includes General Washington who ordered his troops to treat British prisoners "with humanity;" President Lincoln who made this principle part of the Army's code of conduct (and it remains part of the Army Field Manual); and President Teddy Roosevelt who fired a general for engaging in waterboarding explaining that "nothing can justify . . . the use of torture of any kind on the part of the American Army." This is based, in part, on a recognition that our strength as a nation emanates from the values and principles we uphold.

In addition, generals from Napoleon to Colin Powell have consistently stated that torture rarely yields anything of value and is often counterproductive. The Bush administration has contended that waterboarding Khalid Shaikh Mohammed 183 times in March 2003 prevented a 9/11 style attack on Los Angeles. Not only has this claim been dismissed by the FBI as "ludicrous," but two years later the head of Army Intelligence explained that "the empirical evidence of the last five years . . . tells us that" "(n)o good intelligence" comes from abusive practices."

The Torture Memos are a series of legal opinions whose principals elements are a January 2002 memo by Deputy Assistant Attorney General John Yoo that essentially concluded that the President could ignore constitutional, statutory and international prohibitions on torture and an August 2002 memo by Assistant Attorney General Bybee that redefined torture so as to permit water-boarding and which has been called "an instruction manual on how to break the law." The Bush Justice Department would later repudiate the memos as legally unsound.

Yoo and Bybee are guilty not only of bad lawyering and possibly ethical violations, but the fact that they went to such extremes in memos that would serve as the launching pad for what ultimately became Abu Ghraib might suggest that they were consciously enabling and therefore conspiring with their superiors to commit war crimes. That is why Bybee, who now is a 9th Circuit Judge, may face impeachment proceedings.

President Obama is right to open the door to an investigation of the administration's torture policies and those behind it. While Yoo is easily demonized because he has been so visible and unrepentant, the investigation must include all who played a role including those within the White House.

The investigation and, where appropriate, subsequent prosecutions are important because, having already prosecuted some of the low level people involved in Abu Ghraib such as Lynndie England, prosecuting those involved at the top sends a clear message that no one is above the law.

It also sends a message both to the world that the United States has abandoned its membership in the International Rogues Gallery and to all Americans that the conduct authorized and approved by these memos is not who we are as Americans and will not be condoned. Most importantly it brings the Bush era to a close with a clear statement that, as John McCain stressed in denouncing waterboarding, "we are a better nation than that."

Bennet Kelley is an award winning columnist, former National Co-Chair of the Democratic National Committee's Saxophone Club, publisher of BushLies.net and founder of the Internet Law Center.

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Originally published in the Santa Monica Daily Press.