Torture and Accountability in the “War on Terror”

In this lecture, David Cole, Professor at Georgetown University Law Center, discusses how it became legal in the United States to engage in techniques such as water boarding by examining the role of lawyers in the Justice Department during the presidency of George W. Bush. Addressing the once-secret memos that authorized such tactics, he argues that the lawyers failed their constitutional and ethical responsibilities and became accomplices to criminal conduct. He considers who, if anyone, should be held accountable for the CIA "enhanced interrogation techniques"; whether we should merely "move forward," as President Obama has suggested; and whether those who authorized these tactics should be investigated. He then discusses what these issues teach us about law and lawyering, and what our collective response to the experience might teach us about ourselves. The Institute's annual series Lectures on Public Policy aims to address issues relevant to contemporary politics and social conditions and scientific matters of broad import. An article about the lecture appears below.

David Cole, a Professor at the Georgetown University Law Center and editor of the Torture Memos: Rationalizing the Unthinkable, presented the lecture “Torture and Accountability in the ‘War on Terror’: What Should Be Done?” at the Institute for Advanced Study in October. Addressing the ­once-­secret memos issued by lawyers in the Office of Legal Counsel of the United States Department of Justice that authorized tactics such as waterboarding, Cole argued that the lawyers failed their constitutional and ethical responsibilities, and became accomplices to criminal conduct.

“This is a story about how law and lawyers failed, in my view,” said Cole. “The lawyers were approached by the CIA in connection with the detention of Abu Zubaydah and asked whether these techniques, which included stripping suspects naked, keeping them awake for eleven days straight, slamming them into walls, forcing them into painful stress positions, slapping them in the face and abdomen repeatedly, and ultimately waterboarding them, were legal under U.S. law, under international law, and under our constitution. The lawyers concluded that they were legal. That every one of these measures was perfectly lawful, meaning it was not torture. It was not cruel. It was not inhumane. It was not degrading. It did not violate the Geneva Convention’s requirement that we treat all detainees in a military conflict humanely.”

In so doing, Cole argued, these lawyers failed to uphold their role as the “constitutional conscience” of the executive branch. “These lawyers were the only line of defense for the individuals against whom these tactics would be employed.” Instead of requiring the CIA to conform its conduct to the law, the lawyers, through their continued justification that the tactics fell short of the criteria of torture, “contorted the law to conform the law to what the CIA wanted to do,” said Cole.

“These memos and this system developed into essentially an officially sanctioned, professionalized application of cruelty,” Cole continued. The methods were “vetted by the highest lawyers in our government, approved by ­Cabinet-­level officials from Dick Cheney on down, and overseen in its minutia by doctors and psychologists who were implicated in the program.”

Who should now be held accountable, and what set of responses are required and appropriate? Aside from exploring prosecutorial options, Cole proposed a number of actions, including requiring the inclusion of interested parties, such as the military and the State Department, in future decisions made by the Office of Legal Counsel and setting up an independent ­non­partisan commission to provide a full accounting of what happened and make judgments about whether laws were broken.

“We can’t, as President Obama has suggested, simply look forward and not backwards, because if we do so, then the law in this country will be that when we have a president who doesn’t believe in torture, like President Obama, we won’t torture. But when we have a president, or more relevantly a vice president, who does believe in torture, we will. Torture becomes a policy option. That’s where the state of the law at this point remains,” said Cole. “The whole point of the convention against torture, this international treaty that we played a central role in getting the world to sign onto, that President Reagan signed and the Senate ratified under his tenure, was to take torture off of the table as a policy option under any circumstance. We’ve put it back on through these tactics, and absent some accountability, it will remain an option on the table.” ––Kelly Devine Thomas, Editorial Director