By David Cole, Professor of Law, Georgetown University Law Center
What should a lawyer do when asked if it's legal to slam suspects into walls, strip them naked, deprive them of sleep for eleven days straight, force them into cramped stress positions and small dark boxes for hours on end, and waterboard them until they fear they are drowning? The answer should be obvious. Such conduct is flatly forbidden - by US and international law. It is cruel. It is inhumane. It is degrading. And it is torture.
When lawyers in the Bush administration's Justice Department were asked that question, however, they said yes. And they continued to say yes, in secret, even as the law developed in public to confirm the absolute illegality of such conduct. Instead of requiring the CIA to conform its conduct to the dictates of law, the lawyers became accomplices to torture, twisting the law to facilitate abuse.
How did they do so? For years, we could only speculate - all but two of the memos on the issue were secret, including all the memos that discussed the CIA's tactics in any way whatsoever. Thanks to a lawsuit by the ACLU and a more forthcoming approach by the Obama administration, we can now see just how lawyers in the Justice Department's Office of Legal Counsel rationalized the unthinkable. The documents I have reproduced in The Torture Memos are the "smoking gun" in the United States' descent into torture. They allow readers to see, first-hand, how law -- and lawyers -- failed.