Taking Responsibility For Torture

Nan Aron

August 13, 2004

 Except for the photos of Pfc. Lynndie England reporting for her trial, the Abu Ghraib prison scandal has mostly disappeared from the front pages of newspapers. Fortunately, an unprecedented and prestigious group of lawyers—including former FBI chief William Sessions—have united to call on the Bush administration to come clean on the “torture memos.” These were the legal memos prepared by high-ranking administration lawyers that argued torture was permissible. No action was taken against a single official involved.

Nan Aron is the president of  Alliance For Justice , a national coalition of public-interest organizations.

Many Americans are anxious to move past the events that made Abu Ghraib a household world. The evidence of prison torture sickened ordinary Americans and brought shame to the nation. To prevent abuse of prisoners in the future, however, requires a full investigation into how these abuses were permitted in the first place. This involves more than just the ongoing prosecution of officers involved in Abu Ghraib. As has been widely acknowledged, a climate of permission for torture was created at the top. For the sake of the nation, we must hold responsible the administration officials who gave legal cover to the use of torture.

An unprecedented, bipartisan group of prestigious lawyers, including 12 former judges, eight former American Bar Association presidents and many elected officials have joined together in a statement rejecting attempts by Bush administration attorneys to justify torture.  “The lawyers who prepared and signed these memoranda,” reads the statement, “have not met their high obligation to defend the Constitution.”  The lawyers’ statement calls upon the administration to release all memoranda and documents related to the treatment of prisoners and detainees and for an appropriate inquiry of how and why the memos were prepared and by whom they were approved.

Earlier this week, on August 9, the American Bar Association—the nation’s largest organization of attorneys with 400,000 members—passed a strong resolution condemning the use of torture by the United States.  The resolution urges the United States government “to pursue vigorously the investigation of violations of law... and appropriate proceedings against persons who may have committed, assisted, authorized, condoned, had command responsibility for or otherwise participated in such violation.” 

Both of these efforts are part of a growing unrest among lawyers who find the behavior of top government attorneys justifying the use of torture to be despicable.  At the press conference announcing the lawyers’ statement, retired federal judge John Gibbons said:  “It occurs to me that the position taken by the government lawyers in these legal memoranda by the White House and by the DOD amount to counseling a client as to how to get away with violating the law.  It is a fundamental precept of professional responsibility that lawyers can’t give that kind of advice.” 

The memos in question—prepared by senior lawyers in the Bush administration—paved the way for the use of torture of detainees in American custody.  These memos argued that the president was not bound by prohibitions against torture found in the U.S. Constitution, treaties the United States had signed or laws passed by Congress.  The memos were signed by then-Assistant Attorney General Jay Bybee, who is currently a judge on the Ninth Circuit Court of Appeals; the top Defense Department attorney and nominee for a federal judgeship, William Haynes; and President Bush’s chief legal adviser, White House Counsel Alberto Gonzales.  After coming under political fire, the Bush administration repudiated the memos but took no action against the attorneys who prepared, approved and signed them.  Gonzales and Haynes remain with the administration, and President Bush has not withdrawn Haynes’s nomination for a lifetime appointment to the federal courts.

Americans have always looked to lawyers to protect their rights and liberties, and it is especially troubling that a group of top administration attorneys have betrayed that trust.  Because the legal profession is self-regulating, the rest of the profession decides the punishment when lawyers violate the law or break ethical rules.  The weight of both the ABA resolution and the lawyers’ statement on the torture memos send a strong message from the legal community.  The Bush administration cannot ignore these requests for transparency and action.  

To join this growing trend of lawyers standing up for our Constitution and the rights and liberties it affords us, sign your name to the statement and let your uncompromising voice be heard.  The lawyers’ statement can be found at www.allianceforjustice.org, and you can sign on by e-mailing Adam Shah at ashah@afj.org.