The release Tuesday of an 81-page memorandum written in March 2003 on the use of rough interrogation techniques by the military offers a 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, 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, 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-Qaida 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. That is simply breathtaking.
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 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.
John Yoo’s memos (there were others) justifying virtually unlimited presidential power are, or should be, scandalous in a country governed by a Constitution like ours. This should be a key issue in the upcoming presidential election.