12/11/2014 02:40 pm ET Updated Feb 10, 2015

US Needs to Explain Decision Not to Prosecute Torturers

Павел Кусмарцев via Getty Images

The Senate torture report released on Tuesday has led to the inevitable calls for prosecution of the government officials who may have committed crimes. Although the Justice Department this week reaffirmed its earlier position that it would not be prosecuting anyone, that leaves a burning question open: why not?

The 528-page executive summary of the Senate Select Committee on Intelligence's approximately 6,000-page report details some of the most stomach-turning acts of torture committed by US agents on detainees that we've heard about since the CIA's so-called "enhanced interrogation program" created after the September 11, 2001, terrorist attacks first came to light. How can near-drownings, "rectal rehydration," complete sensory deprivation, and leaving detainees chained naked in standing stress positions for days while doused with icy water possibly not be illegal?

Former Bush administration officials, such as John Rizzo, Dick Cheney and John Yoo, continue to argue either that the acts weren't torture, or that they didn't know they were, or that even if they were, they were necessary to prevent another attack.

The Senate report released this week provides a powerful, detailed response citing the CIA's own documents that should put those arguments to rest. Still, if US officials tortured people, and we know torture is, was and always has been illegal, why isn't the government prosecuting them?

Maybe there's some complicated legal reason that isn't obvious to most of us why the evidence wouldn't hold up in court. If so, it's in the government's interest to explain what that is.

The New York Times has filed a lawsuit under the Freedom of Information Act asking to see the documents and testimony relied upon to support the Justice Department's decision. The Justice Department, however, has filed a response objecting to turning them over. The government's lawyers cite the exception under the law that allows the government to withhold attorney work product and materials used to provide legal advice to government officials. That may or may not be a valid legal defense covering all of the documents requested, but it would seem to be in the government's best interest to turn over the documents and explain its decision not to prosecute.

The Times cites 10 reports and memos totaling more than 1,700 pages produced by John Durham, the prosecutor who Attorney General Eric Holder assigned in 2009 to investigate. Durham says in the recent Justice Department filing that he also assessed the testimony of witnesses as part of his investigation, including CIA officials. One of the biggest criticisms of the Senate report is that it didn't interview witnesses, but the Senate committee has explained that was because many would not have been able to speak about their role while under investigation by the Justice Department.

UN officials, citing the requirement in international law that the United States hold U.S. torturers accountable, have already called on the United States to prosecute U.S. officials involved in committing crimes. If the president truly wants to put this debate over torture to rest and restore U.S. credibility after its ugly foray into the "dark side," he needs to explain why he's not doing that.