By Melina Milazzo, Pennoyer Fellow, Law and Security program
This Sunday will mark eight years to the day in which lawyers in the Office of Legal Counsel (OLC) gave their legal seal of approval to use abusive techniques during interrogation which amounted to torture. On August 1, 2002, lawyers John Yoo and Jay Bybee signed their names to the torture memos, providing perverse legal justifications that stripping a detainee naked, dousing him with water, depriving him of sleep for up to eleven days, exposing him to extreme temperatures, slamming him into walls, subjecting him to stress positions for hours, forcing him into cramped boxes with insects, and waterboarding him did not amount to torture.
In February of this year, the Justice Department's Office of Professional Responsibility issued a report highlighting the flawed legal analysis and lack of independent judgment by the principal authors of these memos. The OPR report found that Deputy Assistant Attorney General John Yoo committed intentional professional misconduct and OLC Assistant Attorney General Jay Bybee acted in reckless disregard of his obligation to provide thorough, objective and candid legal advice. Despite the report's scathing findings, neither one of the attorneys has been held accountable. And, time is ticking.
In the United States, some crimes of torture, including conspiracy to commit torture are subject to an eight-year statute of limitations. That is, the government only has eight years from the time a crime is complete to bring charges. As any prosecutor will tell you, the statute of limitation analysis is complicated and should not be oversimplified. To be clear, prosecutions for torture are still possible and we should not give up calling for accountability for the torture of prisoners in U.S. custody. Time, however, is of the essence.
To date, no commander or senior official has been held responsible for the widespread abuses that occurred at Abu Ghraib, Guantanamo Bay, or at any of the CIA secret prisons. While U.S. Attorney General Holder has opened a "preliminary review" of whether federal law was violated in the interrogation of certain detainees, it is unclear whether a full investigation or charges will follow. Holder reportedly stated that the review is close to being finished. It is imperative that the appointed career prosecutor has sufficient discretion to follow the facts wherever they lead, not only investigating those who implemented the U.S. torture policy, but also those who authorized and enabled it.
This Sunday should be a reminder that eight long years have passed since the United States' values were subverted and our national security interests were put at risk. If the United States wants to realign its values and interests, it must account for its past abuses head on rather than running out the clock.