Â Â Â Â The Justice DepartmentÂ memosÂ (1, 2, 3, 4) Â authored by Jay Bybee and Stephen Bradbury leave no doubt that beginning inÂ 2002 our government tortured prisoners who were in our custody.Â If you believe that chaining naked persons in an upright position to keep them awake for more than seven days in a row, spraying them with forty degree water for twenty minutes at a time, placing them in dark boxes for eighteen hours a day, and suffocating them with water for forty seconds at a time sixty times per monthÂ is not "torture" then read no further.Â Our disagreement is so fundamental that no amount of dialogue will bridge the gap.
Â Â Â Â I agree with the Ross Duthat's op-ed in yesterday's New York Times echoing the call for a Truth Commission and a national debate on torture.Â Torture violates fundamental American values, and a large majority of the American public will not rest until we can be assuredÂ that our government will never againÂ engage in this conduct.
Â Â Â Â The Declaration of Independence states that all men are created equal, that we are endowed by our creator with certain inalienable rights, and that governments are instituted among us to secure these rights.Â The Constitution prohibits the government from invading any of our rights -Â common law or statutory or constitutional rights to life, liberty, or property – without due process of law, and it most certainlyÂ prevents the government from torturing people.Â Under the Eighth Amendment even convicted criminals may not be subjected to any cruel punishments.Â After fighting Nazi Germany and Imperial Japan weÂ extended this rule to prisoners of war.Â America led theÂ world in deciding thatÂ captured enemy soldiers may not be tortured or even treated in cruel, inhuman, or degrading fashion, and we executed German and Japanese officers who had ordered the torture of Allied soldiers.Â In essenceÂ we extended the constitutional prohibitions on torture to all persons, even persons who were engaged in a global conflict against us, members of armies that posed aÂ massive and deadly threat to the continued existence of our society, because we believe inÂ the dignity of the individual.Â
Â Â Â Â If there is anything that the people of the world agree upon it is that torture is wrong and that it should be illegal.Â Â We have entered into treaties such as the Geneva Conventions, the Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment, and the International Covenant on Civil and Political Rights,Â each of which obligates us to both outlaw and prosecute acts of torture.Â Â To implement these treaties we have enacted the Torture Act (18 U.S.C. 2340 and 2340A), the War Crimes Act (18 U.S.C. 2441) and the Prohibition on Cruel, Inhuman, and Degrading Treatment or Punishment of Persons Under Custody or Control of the United States Government (42 U.S.C 2000dd).Â
Â Â Â Â But it is not enough to have enacted these laws.Â Our treaty obligations to the people of the world, our dedication toÂ the Constitution, and our determination to live under theÂ Rule of Law require that these laws be enforced.Â We must demand obedience to these laws that protect fundamental principles of human decency.Â The laws against torture are as basic to our society as the laws against slavery.Â
Â Â Â Â This is not a partisan issue, any more than corruption is.Â We do not refrain from investigating and prosecuting incidents of corruption simply because the perpetrators of these acts are public officials or political actors.Â To the contrary, we deem it necessary to rid our government of persons who exercise their powers for personal gain whatever their political beliefs and whatever political party they belong to.Â How much more necessary it is to rid our government of persons who consider it within their power to torture other human beings?
Â Â Â Â It is no argument to say that Democrats in Congress are just as responsibile for torture as Republicans in the White House.Â It makes no difference whetherÂ the people who authorized these actions were liberals or conservatives,Â socialists or libertarians.Â Â Their roles in this matterÂ must be exposed and legal responsibility affixed.Â
Â Â Â Â Some people have taken the position that we should not prosecute C.I.A. officers or military officers who tortured prisoners because theyÂ were "just following orders."Â We did not consider that to be a proper defense for Nazi death camp guards, and in any event the "Nuremburg Defense" has no application to those persons who formulated and gave theÂ orders to torture prisoners.Â In particular we must enforce these laws against the doctors and lawyers who perverted their craft to make possible the policy of torture.Â The doctors who helped to design and oversee these actions must never again be permitted to treat patients.Â They have forfeited the right to practice medicine and cannot be trusted with people's lives and well-being.Â Similarly, the attorneys who authored official memoranda allowing the torture to go forward should never again be permitted to give legal advice.Â Authorizing the government to torture people is not analogous to advising a clientÂ that it may take an illegalÂ tax deduction.Â The attorneys who wrote the torture memos should certainlyÂ not have the opportunity to serve asÂ judges whoÂ interpret and apply the law to other citizens.Â If these attorneys were willing to pervert the plain meaning of the statutes and treaties and constitutional provisions that clearly prohibit the torture of human beings in a situation where their concurrence was necessary to the carrying out of these despicable acts, then there is no limit to how they may interpret the law in the future.Â They have no place in the legal profession.
Â Â Â Â Lincoln said, "If slavery is not wrong, then nothing is wrong."Â Similarly, if torture is not wrong, then nothing is wrong.Â This debate goes to the heart of what America stands for.Â It will not be pleasant to uncover and confront everything that has been done in our name by military and intelligence interrogators, but it is necessary if we are going to save our country.