The Justice Department’s Office of Professional Responsibility (OPR) excoriated the legal work done by John Yoo and Jay Bybee of the Office of Legal Counsel on the torture memos, but DOJ’s ultimate decision stopped short of referring Yoo and Bybee for professional discipline. Serious questions remain, particularly since the OPR was unable to obtain the testimony of many high-level officials who played critical roles in authorizing torture. A full-scale investigation, preferably by an independent commission not part of the very department implicated in the wrongdoing, is still necessary. Great Britain conducted such an independent inquiry into the abusive practices used against IRA prisoners in the 1970s, and the United States must do the same. The essential lesson must be that torture and cruel treatment are not policy options, even when lawyers are willing to write opinions blessing illegality.
- David Cole is the Honorable George J. Mitchell Professor in Law and Public Policy at Georgetown University Law Center. He is also a volunteer attorney for the Center for Constitutional Rights, the 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 has been published widely in law journals and the popular press, including the Yale Law Journal, California Law Review, Stanford Law Review, New York Times, Washington Post, Wall Street Journal, and Los Angeles Times. He is the author of six books. Less Safe, Less Free: Why America Is Losing the War on Terror, published in 2007, and co-authored with Jules Lobel, 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 (2009).