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.
My introductory commentary to the book dissects the lawyers' arguments to show what was so wrong with the job the lawyers did. This was law at its worst, and needs to be understood as such. When lawyers violate their oath and facilitate cruel, inhuman, and degrading treatment and torture, accountability is essential. This book is an attempt to contribute to the struggle for accountability. It is important, but manifestly insufficient, to halt the CIA's use of "enhanced interrogation techniques," as President Obama did on his second day in office. We must acknowledge - through official measures - that what happened was not just a mistake, not just a bad policy decision, but illegal. Only such an official acknowledgement can restore the rule of law. Without accountability, the state of the law in the United States will be that when we have a President who does not believe in torture, we won't torture. But when we have a President (or Vice-President) who does believe in torture, we will. Torture will remain a policy option. The struggle for accountability is about whether we will restore torture to where it should have been all along - an unthinkable crime.
Accountability is an uphill battle. To say that many of the victims are unsympathetic is a radical understatement. The most extreme measures were employed against Khaled Sheikh Mohammed, for example, who was waterboarded 183 times, but who has also publicly admitted his role in planning the attacks of 9/11. As Senator John McCain has said, however, it's not about who they are. It's about who we are.
The Republicans don't want accountability, for obvious reasons. The Democrats for the most part don't want it, either. In part they are concerned that it will divert attention from other agenda items, such as health care. More fundamentally, however, Democrats are afraid of being portrayed by the right as caring more about "terrorists' rights" than Americans' security. Some, such as Senator Pat Leahy, who has proposed a commission, and Senator Jay Rockefeller and Representative John Conyers, who have explored these issues through the Senate Intelligence and House Judiciary Committees, respectively, have tried to do the right thing. But they are rare exceptions to the rule.
Accountability will come only if the people demand it. To that end, it is essential that we get involved, speak out, write our representatives in Congress and the Executive Branch, and work with and support the organizations who have made accountability for torture a priority -- including the Center for Constitutional Rights, the American Civil Liberties Union, Human Rights Watch, Human Rights First, the Bill of Rights Defense Committee, and the Alliance for Justice. The Torture Memos provides the evidence and the arguments. But we all have to stand up and provide the political pressure, by clearly condemning these actions and demanding accountability for the torturers among us.