101 Fall 2009 Torture Memos Recon

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In "The Torture Memos: The Case Against the Lawyers," David Cole argues that the inquiry into recent U.S. practices involving torture of terrorism suspects should include the Office of Legal Counsel (OLC) Lawyers who authorized CIA torture practices. The author has several general reasons for this view: The inquiry into the OLC is necessary for accountability, to help us regain respect as a country, and to prevent abuses in the future. The author's main sub-argument attempts to show that the OLC lawyers failed in their professional responsibility as lawyers. Before giving that argument, Cole replies to a counterargument which claims that the OLC lawyers acted in good faith. People who says this point out that the line between acceptable and unacceptable interrogation techniques is hard to draw. Also, one authority, form Attorney General Michael Mukasey, say the OLC lawyers acted in good faith. But Cole claims that if they were doing a balanced analysis, they would not have said yes to every technique the CIA requested. Also, the fact that they kept secret memos to justify their analysis after public disapproval of their earlier positions suggests that they had a preconceived conclusion to favor all CIA interrogation requests.

The main sub-argument claims that the lawyers failed in their professional responsibility to give competent legal advice as members of the OLC, which is part of the Justice Department. After give background on the Geneva Conventions (1949) and the Convention Against Torture (1984), Cole claims that these treaties only work if lawyers defend them. He also claims that the OLC did not defend them, because they never presented their decisions in a nuanced way and never said no to a CIA request. They also violated their duty by acting as a "hired gun" for the administration, rather than fulfilling their duty to prevent the executive branch from violating the treaties or Federal law against torture.

Cole provides three additional sub-arguments related to the three specific OLC memos (August 1, 2002, May 30, 2005, and July 2007, that were recently released and which show that the OLC lawyers were acting inappropriately. Cole implies by his quotations from the August memo that it is obviously inappropriate. He also suggests that fact that the Justice Department abandoned the memo's argument shows that they were bad arguments. A second sub-argument focuses on the May 2005 memo, which claims that torture practices were justified because the practices were the same as those experienced by participants in the military anti-torture program, SERE. But Cole argues that the comparison is faulty because SERE participants volunteer and a medical doctor is present during training. The May 30 memo also goes against Supreme Court arguments in the case of Chavez v. Martinez in which the Supreme Court ruled that "any intentinal infliction of pain for interrogation would shock the conscience" and thereby be illegal. In the last of these sub-arguments, Cole discussed a July 2007 memo which also tried to exempt the CIA torture practices from the Geneva Convention, again after a Supreme Court decision to the contrary. In all three memos, Cole claims to find strained arguments that show lawyers who are working to pre-determined conclusion rather than arriving at a principled judgement.