37 Questions for Donald Rumsfeld

The "torture memos," as they have come to be known, reveal much about the current administration. They point to a level of secrecy matching, or even surpassing, any sought or achieved by the executive branch in prior eras, even during wartime. They point to a lack of concern for accountability that veers far from previously acknowledged limits on unchecked executive power. They deliberately disregard, even nullify, the balance-of-powers doctrine that has defined the United States since its inception. Essentially, much of what has been put in place by the Bush administration in the wake of 9/11 has relied on the fear of terror as a means to establish a new doctrine of state; it is a doctrine that, before the attacks on the World Trade Center and the Pentagon, had lingered in the outer corridors of power. Much of the Patriot Act, for instance, had already been drafted before 9/11; and the proposal for the Department of Homeland Security was also in draft form at that time. So, too, were plans for a war in Iraq.

The torture memos developed inside the White House by a task force of lawyers headed by presidential confidant and White House Legal Counsel Alberto Gonzales are important, and not just as evidence of a policy that disregards human rights and reciprocity in the treatment of soldiers, civilians, and prisoners. The torture memos are also – perhaps primarily – important because they reveal the most basic attitudes with which the administration greets the Congress, the courts, the American public, and the world at large.

One of the chief figures in turning legal questions on torture into policy in the matter of the treatment of prisoners has been Secretary of Defense Donald Rumsfeld, who oversaw the approval of harsh interrogation methods in 2002 and who became the personally responsible party for approving or disapproving the use of coercive interrogation and "category three" torture after the spring of 2003. It seems only apt and fitting, then, that he, as well as Alberto Gonzales, be brought before Congress and asked questions about this policy and his role in it.

Based on a careful reading of the hundreds of pages of "torture memos" that poured out of the White House, the thousands of pages of military reports, investigations, and original documents that have emerged from Abu Ghraib prison in Iraq, as well as the flood of recent FBI e-mails and prisoner complaints that have emerged from Guantanamo prison in Cuba, we might – as a lawyer and an historian who have been working in this area for the last two years – suggest the following series of questions for Congress:

1. Does torture work? Given the detailed attention shown in the White House memos to describing three levels of interrogation (from questioning to physical abuse) to be applied in the war on terror, is there an underlying assumption that torture in fact really works? That it is more effective than ordinary means of questioning prisoners? And, if so, what does it work to produce? Have you considered whether it is a means of venting frustration or a means of obtaining reliable information? Is there clinical, verifiable evidence that torture produces better information more quickly and more accurately than other methods of interrogation? Did your discussions of torture involve consulting experts in Israel, the United Kingdom, Egypt, and elsewhere? If so, what did those sources have to say in recommending torture? Or was the administration convinced of the efficacy of torture before it began drawing up its legal documents?

2. Assuming, for a moment, that torture is indeed effective, what is the difference between this conflict, and these detainees, and previous conflicts and prisoners? After all, the rationale that torture is necessary to save lives, if true, applies to any war. Surely the torture of German and Japanese soldiers – particularly officers – in World War II could have yielded information that might have "saved lives." Wouldn't this then apply no less to U.S. soldiers and officers – either in or, as in the case of Special Forces troops, out of uniform – captured by the enemy? Indeed, why would it not apply to any situation in which lives are in the balance: cigarette manufacturers, polluters, ordinary criminals? Wouldn't torturing them for information "save lives"?