Online Feature
David Cole on Waterboarding, Executive Power, and the Legacy of the Bush Justice Department
Georgetown Law Professor and frequent New York Review contributor David Cole answered questions from readers about President Bush's Justice Department, the torture debate, and the issues facing the new attorney general. His article, "The Man Behind the Torture," reveals the influence of David Addington, the vice president's chief of staff, on the administration's controversial policies on coercive interrogation and executive power. In previous articles, he examined the legacies of Alberto Gonzales, John Ashcroft, and the Department of Justice's former legal advisor John Yoo.
Q: Several readers asked about the legacy of Bush's Department of Justice. To what extent could the opinions on interrogation and executive power affect the behavior of future administrations? Is there a risk that precedents have been set that could lead to future abuses of power?
David Cole: This remains to be seen. On the one hand, the opinions of the Office of Legal Counsel are generally accorded a kind of stare decisis within the Justice Department, which means that they are not easily overridden. The presumption is that the OLC's opinions rise above the political moment, and are to guide the Department across administrations. That suggests that opinions written by John Yoo and others are indeed like "loaded weapons" that subsequent administrations will be free to pick up and exploit.
On the other hand, much of the administration's approach to the key legal questions regarding executive power have been rejected—by courts, by the public, by Congress, and in some instances, by subsequent lawyers in the Justice Department, as Jack Goldsmith's book demonstrates. More broadly, one could argue that the administration's extreme views of executive power have not carried the day in the population at large, or in the world of elite legal and educated opinion. To that extent, they may serve as much as "anti-precedent," examples of mistakes we need to avoid in future crises, than as precedent.
Which way this ultimately goes will depend, in the end, on all of us. If the Bush administration is come to be seen as one that overreacted in a time of crisis, undermined the nation's credibility and security around the world, and perversely aided its enemies' own recruitment efforts, its actions are likely be seen as mistakes to be avoided.
Q: What changes are we likely to see in the Mukasey Justice Department before Bush leaves office? Is there any serious pressure to undo the excesses of Gonzales and Ashcroft, or will it require a new administration to bring real changes to the department?
David Cole: I doubt we will see radical change under Attorney General Mukasey. For one thing, he doesn't have that much time in office, and no administration or department turns on a dime. For another, his testimony at the hearing did not suggest a strong desire to be an agent of change. I do think that there is growing recognition within the executive branch that many of their most extreme positions have backfired, again as Goldsmith's book demonstrates, and that as a result there will be incremental change in the direction of restoring a more "rule-of-law" approach. But the pressure to be seen as tough on terrorists remains, and Vice President Dick Cheney and his chief of staff, David Addington, continue to be powerful voices in the administration. So don't expect much, at least not voluntarily from within. Now, the destruction of the CIA tapes, if they lead to serious investigations, may create substantial external pressure for change.
Q: Why is the international legal order, which was in effect put in place by American policymakers and diplomats, so repugnant to many in the US executive, Congress and Supreme Court? What will it take for international law to be accepted by the US government?" —Salah Mattoo
David Cole: The American antipathy toward international law is not uniform. The United States favors international law where it serves its interests, as in the regulation of trade. Where it has been antagonistic is where it sees international law as limiting its flexibility, particularly on matters of national security. I think this stems in part from the idea that an effective response to external threats requires flexibility, and in part from a sense that our foe in this particular national security crisis has no interest in abiding by any rules of international law. There is also a strong isolationist strain in conservative and neo-conservative thought, again exemplified by Jack Goldsmith's extreme skepticism of international law. At the same time, I think the United States is behind much of the rest of the world on this issue, and that the way of the future is toward broader recognition of the importance and indeed necessity of international law in a variety of areas, from economic regulation to the environment to human rights.
Q: How do you define torture? Is it absolute or relative to the circumstance, and does waterboarding fit that definition? —Steve Haeckel
David Cole: Torture is defined in the Convention Against Torture, which the United States has signed and ratified, and in US law implementing the Torture Convention. The Torture Convention definition is: "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." It is not "relative to the circumstances" in the sense that if something constitutes torture, it may not be done, regardless of the exigency. And there is not a different torture standard for people we think are guilty and people we think are innocent. The definition is not self-explanatory, however, and as with all legal definitions, leaves questions open at the margins. I have no doubt, however, that waterboarding is torture.
Q: Experts on interrogation claim that torture is generally not effective, but the Bush administration has institutionalized these practices. Is the available evidence sufficient to prove or disprove the argument that certain forms of coercive interrogation are effective, and if so could such evidence be used to produce a reasonable consensus—e.g., that torture is morally repugnant and counterproductive or morally repugnant but under certain circumstances necessary? —Art Leaffer
David Cole: Advocates on all sides of the torture debate make claims about whether torture works generally, works sometimes, or never works. My sense is that we simply do not know. Precisely because torture is universally prohibited, there are no empirical studies comparing the effectiveness of torture as against the effectiveness of other forms of interrogation. In the absence of such studies, we are left to anecdotes. Many experienced interrogators will say that torture does not generally lead to sound information, because people will say anything to get the pain to stop, whether or not it's true. They also often argue that it is far more effective to try to "turn" a suspect through developing trust and the like. At the same time, other interrogators have insisted that coercive interrogation has worked to get suspects to talk, and has led to useful information. Most recently, a CIA agent made that claim with respect to the waterboarding of Abu Zubaydah, one of the high-level detainees held in a CIA black site and waterboarded. But of course that agent cannot say whether we might have obtained that information from Abu Zubaydah without waterboarding him. And what we do know is that once we use waterboarding to obtain information, that information—and any other information to which it leads—will be inadmissible in a criminal trial, thus greatly reducing its value to us, and greatly complicating our efforts to hold someone like Abu Zubaydah responsible for his criminal actions.
Q: The Washington Note blog quoted some days back a former member of the Special Forces who had volunteered to undergo waterboarding and described his experience. He categorically defined it as torture. Shouldn't that end the argument? —John Somerhausen
David Cole: Other individuals, including a journalist for Fox News, have voluntarily undergone waterboarding and come out reporting that it was not torture. I don't think one can put too much stock in these assertions. The fact of the matter is that undergoing waterboarding voluntarily at the hands of people working with you, who you know are not going to drown you, is entirely different from suffering it at the hands of an unknown enemy, where one has no certainty that one is not facing imminent death.
Q: Article 1, Section 9 of the Constitution, states that: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." What would prevent the administration from arguing that the terrorist threat represents a sufficient threat to public safety that such a suspension is justfied? —Ron Prentice
David Cole: Nothing stops this administration from making all sorts of bad arguments, and this is no exception. But three important points:
- the Suspension Clause, because it is in Article I, authorizes only Congress to suspend the writ, not the President;
- the attack of 9/11 was certainly not a rebellion, and probably not an invasion, as those terms are historically and in common parlance understood;
- while the administration has made many arguments in defense of the Military Commissions Act, which deprived the Guantanamo detainees of habeas corpus, it has pointedly not argued that Congress properly suspended the writ.
Q: Could the Bush administration be charged in international court for abuses such as rendition and torture? —Lucas B. Wilson
David Cole: Yes, under the principle of universal jurisdiction, recognized by an increasing number of countries, Bush administration officials could be tried and held accountable abroad for war crimes and crimes against humanity in connection with authorizing torture and mistreatment of Al Qaeda detainees. The real hurdle to such a prosecution is not legal, but political. Will another country's prosecutor have the courage to bring such a case, as Spain did against Augusto Pinochet? We will have to wait and see, but it is noteworthy that German and Italian courts have already indicted CIA officials for their part in renditions effected in those countries.
Q: Is Addington's view of executive power based on a fundamental misreading of the constitution or is it rooted in thinking both abhorrent and constitutional? Where in the constitution is the executive required to execute the nation's laws and provide its security through "persuasion, consultation, and consensus-building"? Addington's "larger force," it seems to me, is the law—whether exerted through the OLC, the US Supreme Court, or Congress—and the electorate. I suppose I am suggesting just the opposite of Goldsmith—who essentially saw Addington and the administration pursuing policies that were wise and necessary, but legally dubious—in arguing that Addington and the administration have pursued unwise and amoral policies that were and are perfectly legal. And if the administration has broken the law (War Crimes Act, FISA), where is our "larger force" to be found? —John Fraser
David Cole: The Constitution is necessarily written in broad terms, without the "prolixity of a legal code," as Justice Marshall famously wrote. That means that much about it is open to argument, and that there will always be plenty for constitutional lawyers to argue about. Issues of separation of powers are especially subject to argument, because they relatively rarely reach a definitive judicial resolution, and so are informed instead by history, practice, and the assertions of executive and legislative officials. My own view is that the Addington and Cheney view of executive power is as extreme as that articulated by Richard Nixon, who famously told David Frost that "when the President does it, that means it's not illegal." That view is quite plainly unacceptable, as it would eliminate checks and balances altogether. I think that the last six years have already shown that there is a "larger force" capable of forcing the administration to back down. It has had to retreat on issues of torture, cruel, inhuman, and degrading treatment, Guantanamo, the Geneva Conventions, and NSA warrantless wiretapping, to name a few. The "larger force" is all of us—civil society, international condemnation, criticism from the press, and the courts. But at the end of the day, as Judge Learned Hand once said, the vitality of constitution rights and constraints ultimately turns on how committed the people are to standing up and fighting for them.