Why The Torture Memos?
by David Cole

WHAT IS A LAWYER TO 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 waterboard them until they fear they are drowning?  The answer should be clear.  Such conduct is absolutely forbidden—by US and international law.  

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 that such conduct was illegal.  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. 

The internal memos of U.S. government lawyers are not often the subject of books targeted at a general audience.  Indeed, they are not often the subject of books at all – and for good reason.  They don’t generally hold interest beyond the bureaucrats to whom they are directed.

The memos collected here, however, are different.  They are the “smoking gun” in the United States’ descent into torture.  The Torture Memos reproduces these memos, edited only to eliminate unnecessary repetition, so that general readers can see, first-hand, how law – and lawyers – failed.   My introductory commentary seeks to explain just what was so dreadfully wrong with the job the lawyers did, and what we should do about it. 

When lawyers violate their oath and facilitate torture, accountability is essential.  This book is an attempt to contribute to the struggle for accountability.  It is important, but insufficient, to halt the CIA’s use of “enhanced interrogation techniques,” as President Barack Obama did on his second day in office.  We must acknowledge – through official means – that what happened was not just a mistake, not just a bad policy decision, but illegal.  Only that acknowledgement can restore the rule of law. This book is an attempt to further the cause of accountability.  I hope that by reading it, and sharing it with others, you will be inspired to join the fight for accountability. 

If you are so inspired, there are many organizations participating in a loose-knit campaign for accountability on torture.  They include the Center for Constitutional Rights, the American Civil Liberties Union, Human Rights Watch, Human Rights First, and the Bill of Rights Defense Committee.  I urge you to join your voice with others to demand accountability for the torturers among us. 

—David Cole, September 2009

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 All Things Considered. He is the author of six books. Less Safe, Less Free: Why America Is Losing the War on Terror, published in 2007, won the Palmer Civil Liberties Prize for best book on national security and civil liberties. Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism, 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. His most recent book is The Torture Memos: Rationalizing the Unthinkable, published by The New Press in September 2009.

He has litigated many significant constitutional cases, including Texas v. Johnson and United States v. Eichman, which extended First Amendment protection to flagburning; National Endowment for the Arts v. Finley, which challenged political content restriction on NEA funding; and Massachusetts v. Sullivan, which challenged restrictions on what federally funded family planning centers could tell women about abortion. Since 9/11, he has been involved in many of the nation’s most important cases involving civil liberties and national security, including the case of Maher Arar, a Canadian citizen rendered to Syria and tortured there.

New York Times columnist Anthony Lewis has called David “one of the country’s great legal voices for civil liberties today,” and Nat Hentoff has called him “a one-man Committee of Correspondence in the tradition of patriot Sam Adams.” David has received numerous awards for his human rights work, including honors from the Society of American Law Teachers, the National Lawyers Guild, the ACLU of Southern California, the ABA Section on Individual Rights and Responsibilities, and the American-Arab Anti-Discrimination Committee.

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