Commentary

'Torture memo' authors should be held to account

by Peter Erlinder

It has been more than 75 years since the U.S. Supreme Court referred to a Southern sheriff and a lynch mob as torturers for what they did to three black men to get them to confess to a murder.

The men were whipped, hung by the neck, stripped naked and told how their confessions should conform "to the demands of their torturers," according to the court in Brown vs. Mississipp. It said: "Further details of the brutal treatment to which these helpless prisoners were subjected need not be pursued. It is sufficient to say that in pertinent respects the transcript reads more like pages torn from some medieval account than a record made within the confines of modern civilization which aspires to an enlightened constitutional government."

Today, Profs. John Yoo and Robert Delahunty, two authors of the infamous "torture memos" that justified extreme interrogation techniques under the Bush administration, will speak at St. Thomas Law School. Their arguments helped bring about a period of expanded executive power. Among the abuses that followed:

Khalid Sheikh Mohammed was waterboarded nearly 200 times.

Hundreds of supposed suspects were held for years without trial.

Repeated interrogations attempted to elicit confessions.

Prisoners were subjected to the horrors of Abu Ghraib.

Prisoners were sent by "extraordinary rendition" to third countries for the purpose of torture.

The entire world came to be designated as a combat zone to permit wartime executive branch powers everywhere.

This is only a partial recounting of the record, but it is enough to recall the words of Brown vs. Mississippi: Does this sound like a "modern civilization which aspires to an enlightened constitutional government"?

The current debate over what constitutes "torture" is particularly important because the Bush administration for which Yoo and Delahunty worked established this precedent: Any American citizen who participates in acts of "torture," anywhere in the world, can be prosecuted in the United States by any U.S. attorney who chooses to do so. Presumably, that includes the U.S. attorney for Minnesota.

The Bush administration successfully prosecuted Chuckie Taylor Jr., the son of former Liberian President Charles Taylor, on charges of torture and conspiracy to commit torture in Liberia. It was the first conviction of a U.S. citizen under a 1994 federal statute that criminalizes violations of the Convention Against Torture by any U.S. citizen, anywhere in the world. So there is a clear precedent for prosecuting citizens who are complicit in overseas acts of "torture," as already defined by the U.S. Supreme Court in Brown vs. Mississippi.

So Profs. Yoo and Delahunty could, in theory, be arrested in Minnesota today, just as Chuckie Taylor was arrested when he stepped off the plane in Miami.

But they need not worry. Neither Yoo nor Delahunty faces federal prosecution in Minnesota, despite their well-documented violation of the Torture Convention. Instead, the U.S. attorney for Minnesota is avidly pursuing local antiwar activists with vaguely worded subpoenas alleging suspected ties to organizations that the secretary of state considers to be acting contrary to U.S. policy interests (the definition of a foreign terrorist organization).

The question for the Obama administration is whether former President George W. Bush, former Vice President Dick Cheney, Yoo, Delahunty and others -- who are admittedly complicit in violations of the Convention Against Torture and U.S. law forbidding violations of that convention -- will be held criminally liable, the same as other folks who might be suspected of ... something.

Based on recent events, it is beginning to appear that the rule of law does mean something different for ex-presidential administrations and the rest of us. President Obama is in a position to demonstrate, by his example, what "equality before the law" means to this administration -- and to him.

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Peter Erlinder is a law professor at William Mitchell College of Law in St. Paul.