May 21, 2018
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Prosecuting torture

By The Los Angeles Times, July 6

A prosecutor assigned to investigate the CIA’s use of torture has decided not to recommend further investigation of as many as 100 CIA interrogations of detainees over the last decade. That judgment ensures that there will not be a full accounting of how, when and by whom “enhanced interrogation techniques” were employed to extract information. That is a loss to the nation.

The prosecutor, John Durham, did advise the Justice Department to continue an investigation in two cases in which detainees died in custody. But the notable result of his two-year inquiry is to clear interrogators in all of the other cases.

This result was foreordained. That’s because the Obama administration decided that Durham couldn’t investigate cases in which interrogators “acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.”

In other words, the administration decided before the investigation began not to go after CIA employees who stayed within the guidelines. That was probably the right decision legally, and it certainly was the most pragmatic one. It’s hard to imagine a jury convicting a CIA agent who was abiding by a legal opinion, however outrageous.

But if prosecutors won’t go after the CIA employees on the ground who were just following orders, then shouldn’t they focus on the lawyers who issued those amoral and outrageous legal opinions? Unfortunately, the Justice Department has already cleared the people in the Office of Legal Counsel who drafted the so-called torture memos of professional misconduct, and criminal charges seem unlikely. And the politicians who solicited that advice from the lawyers? None of them have been prosecuted or seriously investigated either.

So in the end virtually no one will be held accountable for monstrous acts by the government. That’s a source of shame for a nation that upholds the values of due process and humane treatment of captives.

There’s an understandable temptation at this point to heed President Obama’s call two years ago “to look forward as opposed to looking backwards” at abuses in the war on terror. But we should continue to look back, if only to prevent such outrages from occurring again. Durham’s findings don’t absolve Americans of that responsibility.

Los Angeles Times (July 6)

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