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The Taint of Torture: The Roles of Law and Policy in Our Descent to the Dark Side

18 Pages Posted: 18 Apr 2012  

David Cole

Georgetown University Law Center

Date Written: April 8, 2012


Was the Bush administration’s decision to employ “enhanced interrogation techniques” a mistake of policy, a violation of law, or both? This essay responds to Philip Zelikow’s insider account of how the decision to use these techniques was reached. The author suggests that while Zelikow makes a strong case that the decision to authorize the CIA to use coercive interrogation tactics was a mistaken policy judgment, it is important not to lose sight of the fact that it was also illegal. The latter conclusion demands a different response than the former. In particular, it underscores the necessity for accountability. The author of this essay makes the case that the policy was in fact illegal, and that the nation must hold the architects of the plan accountable. He also offers brief thoughts on the legal and policy issues surrounding detention and targeted killing in the ongoing conflict with Al Qaeda, stressing that while neither is flatly impermissible in an armed conflict, accountability and democracy concerns demand greater transparency.

Keywords: terrorism, torture, interrogation tactics, detention policies, targeted killing, human rights, national security

JEL Classification: K00, K33, K14

Suggested Citation

Cole, David, The Taint of Torture: The Roles of Law and Policy in Our Descent to the Dark Side (April 8, 2012). Houston Law Review, Vol. 49, pp. 53-69, 2012; Georgetown Public Law Research Paper No. 12-054. Available at SSRN:

David D. Cole (Contact Author)

Georgetown University Law Center ( email )

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Washington, DC 20001
United States
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202-662-9408 (Fax)

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