As if we didn’t already know, we have yet another piece of evidence that one of the major "accomplishments" of the Bush administration (and you didn’t think there were any) has been a relentless push for more executive power.
It is hardly a secret, of course, that "regaining" unbridled and untrammeled executive power has been an obsession of Dick Cheney’s ever since Watergate, which he saw not as an outrageous abuse of power but as an unfortunate incident whose uncovering led to a few modest checks on executive power hardly as many as the framers of the Constitution envisioned, given that executive power has been expanded relentlessly since Roosevelt (Teddy, John McCain’s hero) and before that since Lincoln. But the extent to which this administration’s Darth Vader figure, aided and abetted by all too many people with law degrees, has been able to expand executive power and to get otherwise respectable people to acquiesce in it, has been genuinely breathtaking.
What occasions these musings, of course, is the release Tuesday of an 81-page memorandum written in March 2003 on the use of rough interrogation techniques by the military. Here is Part One, then Part Two, Part Three, and Part Four (in PDF format). It offers a genuinely disturbing insight into the mindset of all too many Bush administration operatives during the early years of the vague and misnamed “war on terror.”
Written by John Yoo, then a deputy in the Justice Department’s Office of Legal Counsel and now a law professor at UC Berkeley, it makes a breathtakingly broad case for virtually unlimited presidential power during time of war even when the war has not been declared by Congress, as the Constitution mandates (or did, until our noble leaders decided to ignore that provision).
Taking note of the fact that the U.S. has signed several treaties outlawing the use of torture and that there are also several U.S. laws on the books outlawing torture, Mr. Yoo defined torture as narrowly as possible “victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure or permanent damage resulting in loss of significant body functions.” Aware that there are laws against assault as well as torture and that some prosecutors might not buy his interpretation, he went on:
“If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al-Qaeda terrorist network. In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.”
The essence of the argument is that the president’s commander-in-chief power permits him to violate (or to authorize others to violate) international treaties and U.S. criminal law.
As I have argued elsewhere, and previously in response to the release of other legal documents emanating from the Yoo faction at the Department of Justice, the elaborate memo reads like nothing so much as the kind of memo a Mafia consigliere might write in the knowledge that the Godfather was about to embark on a particularly egregious and public crime spree that might possibly lead to some legal vulnerability if somebody broke the code of omerta. It explains how the top figures can crawl right up to edge of blatant lawbreaking and possibly protect themselves and their minions from conviction, at least so long as they have an especially aggressive defense lawyer who is not too burdened by inconvenient notions about legal ethics.
Such a conception of the "rights" of an executive and commander-in-chief, however, should have no place in our unfortunately rather tattered constitutional scheme of things.
For starters, the fundamental concept behind the rule of law is that the same laws apply alike to rulers and those ruled that the king (or president or chief executive or bureaucrat or legislator) is subject to the same laws as other citizens. Furthermore, the international treaties prohibiting torture and the U.S. laws against torture were written expressly and specifically to apply during wartime, since that’s the only time the military is likely to have prisoners under its control. To argue that the president can unilaterally (and secretly; this memo was kept secret, in my view and in the view of quite a few others without any legal or policy justification, for five years) suspend those laws is to argue that it was an exercise in futility to pass them.
Finally, one of the fundamental arguments for defending this country against attacks by terrorists and other dealers in ruthless violence is that such tactics are the essence of barbarism and that this country is more than a piece of land, but the keeper and guardian of certain fundamental ideals that define what it is to be civilized rather than barbarian. When high officials twist the law to justify the use of barbarous means with no accountability, that distinction becomes more blurred than a true American patriot would like.
Those who call themselves conservatives didn’t always think this way. James Burnham, one of the initial senior editors of National Review magazine and hardly a shrinking violet when it came to foreign affairs and the perceived necessity of confronting the Soviets as aggressively as possible, write an entire book, Congress and the American Tradition arguing the opposite point of view. Burnham maintained that Congress had for the previous several decades (the book was written in the 1960s) deferred to the executive branch unduly and that it should become much more aggressive in asserting its powers vis-à-vis the executive.
It’s tempting to suggest, of course, that the thinking of so-called conservatives on the subject of executive power has been influenced by the fact that we have had mostly Republican presidents since 1968 or so. Their thinking (and the thinking of most partisans) on foreign adventures also seems strongly conditioned by the party of the person occupying the Oval Office. Most Republicans (not all; John McCain came around by 1998) deplored Bill Clinton’s adventures in Somalia, Haiti, Bosnia and Kosovo, while most Democrats (not all), who are deeply disturbed today by George W. Bush’s unilateral adventurism, supported them enthusiastically. Madeleine’s War, anyone?
Still, the Bushies have been more aggressive in expanding executive power than any administration since Nixon’s and it seems to have been populated by all too many sofa samurai with an unhealthy fixation (shared by a few so-called liberals like Alan Dershowitz) with the presumed necessity of using torture that is shared by none of the professional interrogators I have talked to over the years. This week’s memo revelation strengthens the case (we may never know for sure) that abuses like those that surfaced at Abu Ghraib prison were precipitated from the top down rather than percolating up from a few inexperienced "rogue" prison guards at the bottom who got carried away and were foolish enough to document their outrages with cameras.
In that regard, it’s worth noting something that emerges from this excellent Vanity Fair article, obviously prepared long before this week’s Yoo memo was made public (and which strengthens the case that the impetus for torture came from the top or near the top). One of the prisoners at Guantánamo, identified as Detainee 063, may well have been a factor in the move toward torture because of his refusal to give up any useful information under "ordinary" interrogation. But then he was subjected to intensive interrogation, including stuff you and I would see as torture (though apparently not waterboarding), for some seven months. And he still refused to say anything the interrogators viewed as useful.
So torture is not only barbarous, it doesn’t work. We should have known. The Soviets didn’t use it to get bona fide information but to elicit phony "confessions" they could use to feed the myth that endless conspiracies guided by Western imperialists were always afoot, the better to justify further acts of repression.
As Thomas Jefferson might have put it as he did put it I weep for my country when I reflect that God is just.