professor of law at Georgetown University and the legal affairs correspondent for The Nation magazine. He edited and wrote the introductory commentary for The Torture Memos.
Legal scholar and attorney David Cole looks at the story behind the infamous Bush administration torture memos. Cole argues the memos show that the United States government’s top attorneys were instrumental in rationalizing acts of torture and cruelty, employing chillingly twisted logic and Orwellian reasoning to authorize what the law absolutely forbids. [includes rush transcript]
SHARIF ABDEL KOUDDOUS: For our last segment, we turn to a new collection of some of the key Bush administration memos authorizing CIA torture. The law professor and journalist David Cole has edited the memos and contributed an additional forty pages of introductory commentary. The book is called The Torture Memos: Rationalizing the Unthinkable.
David Cole is a professor of law at Georgetown University and the legal affairs correspondent for The Nation magazine. He joins us now in the firehouse studio.
Welcome to Democracy Now!, David.
DAVID COLE: Thanks for having me.
SHARIF ABDEL KOUDDOUS: Can you first explain what exactly are these six memos that are being published in the book?
DAVID COLE: Well, this is basically the legal documents that the Justice Department’s Office of Legal Counsel created to authorize the CIA to engage in the brutal interrogation tactics that it employed for years at its secret detention centers.
SHARIF ABDEL KOUDDOUS: And what exactly is the Office of Legal Counsel? Where does it fit in the legal structure of the executive branch?
DAVID COLE: Well, that’s what’s so remarkable about these memos. The Office of Legal Counsel is the — supposed to be the conscience of the executive branch. It’s the place where the politicians in the executive branch go to ask whether what they’re doing is legal. And their job is to say no, when they’re asked, “Can we do something that is obviously illegal?”
Here, the CIA came and said, “Can we strip suspects naked, keep them awake for eleven days straight, douse them with water, slap them repeatedly, slam their heads into walls, and waterboard them to compel them to talk?” The answer to that should have been no. But instead of requiring the CIA to conform its conduct to the law, these lawyers treated the law as infinitely manipulable and contorted the law to conform it to the CIA’s conduct, justifying what is really unjustifiable.
AMY GOODMAN: David Cole, tell us who these lawyers are.
DAVID COLE: Well, the lawyers include John Yoo, a law professor now at Berkeley, and Jay Bybee, now a Ninth Circuit judge, who were — who wrote the initial memos; Dan Levin, who was a successor to those two, who wrote a memo in December 2004 that purported to abandon the prior memos when they became public, but in fact authorized all of the same conduct; and then Steven Bradbury, who in some ways was the worst of the lot. He doesn’t get as much of attention, but long after the panic of 9/11, long after we knew that the CIA was abusing these tactics, and as the public law tightened its hold on what the CIA could do, Steven Bradbury wrote memo after memo in secret, saying to the CIA, “You can ignore what the public law and public says, because, in secret, we’re going to interpret that law to allow you to do whatever you want to do.”
AMY GOODMAN: A lot of people applauded President Obama releasing the memos, but at the same time he talked about really impunity for these lawyers. What is your view on this?
DAVID COLE: My view is, what we have to have is accountability and accountability up to the level where people are truly accountable. And I think the worst of the worst here are not the CIA interrogators who may have gone beyond even the brutality that was authorized by the Justice Department and by Cabinet-level officials up to Dick Cheney, but the decision to authorize that brutality in the first place by these lawyers and by the Cabinet officials who signed off on the program. Accountability needs to go to that level. Otherwise it’s just like Abu Ghraib, where we hold a few line-level people accountable and don’t question the sort of original sin here, which is the higher-ups saying it’s OK to treat people as less than human.
AMY GOODMAN: And what would it mean to hold them accountable?
DAVID COLE: Well, that’s — I think that’s an open question. I mean, we’re obligated, under the torture convention, to investigate and refer them for prosecution. We’re not necessarily obligated to prosecute, but we are obligated to investigate. We haven’t even investigated these people criminally yet. I think an independent commission to get out all of the facts with people who are above reproach, from a partisan perspective, is the first step. And then you decide. Is it disbarment? Is it a congressional resolution? Is it civil damages? I don’t think the actual form of accountability is as important as that there be some official accountability.
SHARIF ABDEL KOUDDOUS: Well, on that issue, Eric Holder, in his confirmation hearing, said unequivocally that waterboarding is torture.
DAVID COLE: Right.
SHARIF ABDEL KOUDDOUS: And we know that the OLC memos authorized waterboarding, and some Cabinet-level officials, most notably Vice President Dick Cheney, approved of this tactic. And we also know that torture is against US law. It’s been — the Congress ratified the Convention Against Torture. So doesn’t it follow necessarily then that these officials committed crimes?
DAVID COLE: Absolutely. And it follows that they are — that we’re under a legal obligation, not — it’s not like a political choice. It’s a legal obligation under the Convention Against Torture to investigate and refer for prosecution any person within the United States’ jurisdiction about whom there’s credible information that they’ve engaged in torture.
So, yeah, no, I think that it’s — you know, what’s very problematic about the current state of affairs is that we’re investigating only these low-level guys, and we’re not sort of focusing accountability where it needs to be focused. And in the long run, if we’re going to sort of heal this problem, if we’re going to not repeat it, we have to treat torture not as a policy option, where when we have a president who doesn’t believe in torture, we don’t torture, but when we have a president who does believe in torture, we do, but as something that is clearly and unmistakably illegal. And only official accountability will do that.
AMY GOODMAN: And the Attorney General Eric Holder’s approach, hiring a — appointing a special prosecutor, but limiting the purview, explain what that is.
DAVID COLE: Well, what Attorney General Holder has done is to say there are — we have evidence, through the CIA inspector general report, which was released in partially unredacted form in August, that CIA officials went even beyond what the Justice Department authorized, so including — you know, in addition to waterboarding people for hundreds of times, they also threatened a guy with a gun, they threatened another one with a drill while he was hooded and naked, they threatened another that if there was another terrorist attack in the United States, they would kill his children. I mean, this was not actually authorized by the Office of Legal Counsel. Holder has said those people and those incidents should be investigated. Well, they should be investigated, but so, too, should John Yoo, Jay Bybee, Dick Cheney, and those who authorized the brutality in the first place. It’s that decision to sort of say, we’re not going to treat these people as human, that led to the guns, the drills and the death threats.
AMY GOODMAN: So he’s protecting his own Justice Department?
DAVID COLE: Yeah. And, in fact, there’s a real conflict of interest here, right? Because he’s investigating the CIA people, but, of course, it was the Justice Department that led the CIA down this path in the first place.
SHARIF ABDEL KOUDDOUS: And Holder also has not released the Office of Special Responsibility report [sic]. Why do you think that is? And what do you think could be gleaned by that report?
DAVID COLE: Well, that’s — that report is the — the Office of Professional Responsibility is ethics department — the ethics office in the Justice Department. They reportedly looked at the role that John Yoo, Jay Bybee and others played in these roles. And reportedly — we haven’t seen the memo yet — they recommend that these lawyers be referred to their state bars for discipline, for potentially being disbarred for their — so it’s apparently a very damning report.
It’s been completed for five months, hasn’t yet been released. You know, I don’t know why they’re — they can’t withhold it forever. So I do think we’re going to see it. And then I think that will be an opportunity for people to say, you know, these are the people who we really need to be focusing on. These are the people — this is where the decision to go forward began, and it’s that decision that led to all of the abuse that we saw.
AMY GOODMAN: And Bush and Cheney’s responsibility and Cheney, you know, going out on the road, or at least on Fox, and defending the — his own policies and President Bush’s?
DAVID COLE: Yeah. Well, he — Cheney would rather not be a defendant in a criminal lawsuit, and so he’s going out and taking the offensive.
AMY GOODMAN: Could he be?
DAVID COLE: Yeah, he —-
AMY GOODMAN: A defendant in a criminal lawsuit?
DAVID COLE: Well, he certainly could be, in an ideal world. And he could be, as a legal matter. Whether he will be, as a political matter, I think is another thing entirely.
SHARIF ABDEL KOUDDOUS: And the effect of these memos? This went way beyond CIA interrogation. I mean, we’re all familiar with the pictures from Abu Ghraib and the torture there. But explain how this authorization was -— migrated to Guantanamo and then eventually to Iraq.
DAVID COLE: Yeah, well, initially — so the initial decision to authorize brutality was given to the CIA for the people in the CIA black sites. But that memo and that thinking then was sent over to the Defense Department, and it was that — the some kind of arguments, really remarkable arguments that people really need to see, that led Defense Secretary Donald Rumsfeld to authorize these tactics, a slightly less extreme version of these tactics, but still these tactics, at Guantanamo. And then those tactics at Guantanamo got shipped over to Afghanistan, and then the Special Forces at Afghanistan brought them to Iraq. So, this is really the original sin. And we’ve seen the results from, you know, CIA detention centers all over the world to Afghanistan to Iraq.
AMY GOODMAN: And your response, finally, to President Obama’s famous refrain said in different ways: we’ve got to move forward and not go back?
DAVID COLE: Yeah. Well, we do have to move forward, but I think part of moving forward is accountability for those who have violated the law in the past. If we go forward saying, “Well, you know, they made a bad choice, but we’re not going to hold them accountable for it,” then you have left torture open as a policy option, not only for the next president of the United States, but for presidents and prime ministers and security services around the world. They can point to the United States and say, “They authorized it, and nobody was held accountable for doing so. Why should we not?”
AMY GOODMAN: David Cole, we want to thank you very much for being with us, professor of law at Georgetown University, legal affairs correspondent for The Nation magazine, edited and wrote the introductory commentary to The Torture Memos: Rationalizing the Unthinkable.