David Cole - The Torture Memos[Welcome David Cole, and Host bmaz - bev]

In a sea of subterfuge, secrecy and flat out dishonesty spanning not only the Administration of George W. Bush, but, sadly, that of Barack Obama as well, one blockbuster voluntary governmental release of foundational documents in the critical war on terror legal areas of the torture and warrantless wiretapping programs stands out. The April 16, 2009 disclosure by the Obama Administration of the never-before-seen secret memos describing, in graphic detail, the brutal interrogation techniques used by the CIA, their contractors and other governmental and quasi-governmental actors under the Bush administration’s “war on terror.”

Professor David Cole of the Georgetown University Law Center has published the full set of memos in their entirety along with his own substantive introduction and discussion, as well as foreword by leading international lawyer Philippe Sands. The memos speak for themselves and are chilling. They have all been discussed to one degree or another here at Firedoglake and Emptywheel (see here, here, here and here for instance).

Torture Memos: Rationalizing the Unthinkable is a wonderful resource; to have all the memos in one place, indexed and available for reference any time, is worth the price all by itself. For me, however, the forty page introduction by Professor Cole is just as valuable. The beginning of his discussion is beautiful in its symmetry and setup:

“THOSE METHODS, read on a bright, sunny, safe day in April 2009, appear graphic and disturbing,” said Dennis Blair, President Barack Obama’s director of national intelligence, as he sought to downplay the horror of CIA interrogation techniques described and sanctioned in four previously secret Justice Department memos disclosed on April 16, 2009. The techniques, he suggested, would have looked very different in August 2002, when they were first authorized. “It was a bright cold day in April, and the clocks were striking thirteen.” So begins 1984, the classic novel of the security state by George Orwell. It’s unlikely that Blair intended the allusion, but the reference could not have been more apt. The Justice Department memos do precisely what Orwell foretold: twist language and the law in order to rationalize the unthinkable. The interrogation techniques used by the CIA against al Qaeda suspects have inspired two competing narratives. Many have argued that the techniques were patently illegal, and surely would have been viewed as such had an enemy of the United States used them against our soldiers—in August 2002 or April 2009. No good-faith legal argument could possibly give a green light to stripping a suspect naked, slamming him repeatedly into a wall, dousing him with cold water, slapping his face, depriving him of any sleep for eleven days straight, forcing him into stress positions and small dark boxes for hours at a time, and waterboarding him repeatedly—183 times in the case of Khalid Sheikh Mohammed, and 83 times in the case of Abu Zubaydah, two al Qaeda detainees.

In addition to the wonderful introduction commentary and analysis by Professor Cole, the other “new” material most readers will not be familiar with is the entirety, including preface, of the little discussed April 23, 2009 “Release of Declassified Narrative Regarding Department of Justice Office of Legal Counsel Opinions on the CIA’s Detention and Interrogation Program”, a fifteen page document compiled by the office of then SSCI chairman Senator John D. Rockefeller that gives a hint of how Rockefeller viewed the various OLC memos and the process entailed in getting them released. Although it is typically reserved, as you would expect from the Senate on such a sensitive topic, it does present an appropriate coda on the compilation.

There is, unfortunately, not space within the confines of this introductory post to go into each of the different torture memos and discuss their significance. Most all of you have been doing this for months here at Firedoglake and Emptywheel, or at other locations; so you are already familiar with them. Instead, I would like to touch on what Professor Cole terms “The Memos In Context”.

In law, context and facts count; in truth, pure law is a hollow shell without them. Yet the authors of the torture memos seem malignantly detached from the human facts and context they were operating in. The work demonstrates a singular lack of good faith and professional ethics in its construct. From the well known ignorance of the seminal case of Youngstown to the machinations undertaken to fix the generated legal opinions around conduct that had already occurred (and, not to mention, was being compartmentalized to prevent honest relation of the actual conduct being performed in the field), the effort was distinctly unethical and taken in extreme bad faith.

Another germane question is how the OLC Opinions were ever justified in being presented as reliance opinions in the first place in light of the fact they were not distributed to the end users (not to mention violation of every other construct of a valid reliance opinion). These are, hopefully, points that will be addressed in the long awaited Office of Professional Responsibility (OPR) Report. It is a shame that the government has seen fit to obfuscate and delay release on the OPR effort, it would have been the perfect addition to Professor Cole’s worthy compilation.

The other area of context is the relationship of the contents of the memos, or lack thereof, to established black letter international law and convention. The Conventions Against Torture and Geneva Conventions are, of course, the issue. The memos are a fascinating case study of completely disingenuous effort and intent in the way the authors cumulatively seek to disingenuously distinguish both the international and domestic norms and precedent, and flat ignore the same when they cannot sufficiently bend it to their desire. All to serve the predetermined craven edict of their Executive Branch masters in the Bush/Cheney Administration.

There is a great deal of information and background at David’s website for the book, www.torturememos.net

With that, let us welcome Professor David Cole!

About The Author: David Cole is a professor at Georgetown University Law Center, a volunteer staff attorney for the Center for Constitutional Rights, legal affairs correspondent for “The Nation,” a regular contributor to the “New York Review of Books,” and a commentator on National Public Radio’s A”ll Things Considered.” He is the author of six books, including “Less Safe, Less Free: Why America Is Losing the War on Terror,” published in 2007, which won the Palmer Civil Liberties Prize for best book on national security and civil liberties and “Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism,” which received the American Book Award in 2004. “No Equal Justice: Race and Class in the American Criminal Justice System” was named Best Non-Fiction Book of 1999 by the Boston Book Review and best book on an issue of national policy in 1999 by the American Political Science Association. Other works include “Terrorism And The Constitution,” published by The New Press, and “Justice At War,” published by the New York Review of Books.