In his recently published memoir, Decision Points, George Bush documents the decision to authorise enhanced interrogation techniques, one of the more controversial products of his presidency. Interestingly, in his reflections on this decision, he explicitly notes the role of his lawyers, in statements that manage to be both defensive and self-congratulatory. Discussing the criticism the administration received in the years after the event, Bush notes:
Once the threat seemed less urgent and the political winds had shifted, many lawmakers became fierce critics. They charged that Americans had committed unlawful torture. That was not true. I had asked the most senior legal officers in the US government to review the interrogation methods, and they had assured me that they did not constitute torture. To suggest that our intelligence personnel violated the law by following the legal guidance they received is insulting and wrong.1
There are a few remarkable things about this statement. The most obvious, equalled only by its importance, is that it is simply wrong. Two attorneys from the Office of Legal Counsel, John Yoo and Jay S Bybee, signed off on legal advice that laid the groundwork for CIA contractors to use waterboarding, sleep deprivation and other harsh interrogation techniques. This advice sits clearly at odds with the general consensus in the legal and political community, which is that waterboarding constitutes torture.2 Presumably Yoo and Bybee were aware that their advice would never be subjected to the scrutiny of an independent judiciary; the torture memos will forever be a matter of opinion. But there are good grounds for arguing that this opinion is well outside the bounds of the law.