Published on
the San Francisco Chronicle

Torture of the Law


One of President Bush's most shameful failings is his stubborn insistence on the right to torture terrorist suspects. While claiming the country does no such thing, he's vetoed limits on CIA interrogators and shielded his outlook with clouds of rhetoric about protecting the nation.

Following the 9/11 terrorist attacks, the White House team has pushed hard to expand its powers, sometimes pushing the limits of constitutional restraints and the rules of civilized nations, and the best example is the twisted logic behind allowing the rough treatment of prisoners.

This month, a fuller look at the origins of this thinking surfaced in 81-page legal opinion by the Department of Justice to the president's national security team. The document, pried loose by a lawsuit, was long known about, but its actual language lays bare the thinking that interrogators should have a free hand, in every sense of the phrase, and can't be held back by legal or treaty norms. "In wartime, it is for the president alone to decide what methods to use to best prevail against the enemy."

The opinion, written by former Justice attorney John Yoo, now a UC Berkeley law professor, was later revoked. But it put down legal markers never erased: This president seeks near imperial powers and the war's conduct demands that civil norms be tossed.

The nature of the deliberations around the Yoo paper are equally disturbing. The advice was dispensed to an ultra-select crew of administration higher-ups: Vice President Dick Cheney, then-Defense Secretary Donald Rumsfeld, Condoleezza Rice, then national security adviser, former Secretary of State Colin Powell, former Attorney General John Ashcroft, and past CIA director George Tenet. This team had met over dozens of meetings in 2003 to produce the torture policy.

Who advocated and who dissented? Did they fully grasp the level of abuse that lay ahead such as waterboarding, the simulated drowning of suspects that dates back to Spanish Inquisition?

The no-limits stance was eventually overturned at the end of 2003 by a new crew of Justice lawyers who found the Yoo memo to be legally flawed. Military lawyers, who were left out of the White House loop, were also upset at the green light for torture.

But this is anything but a happy ending. The thinking - and the notion of unchecked power that lay behind it - powered the abuses of Abu Ghraib prison, the harsh treatment meted out in Guantanamo Bay, and the see-no-evil rendition of suspects to foreign prisons.

More details may surface in the torture memo because the lawsuit that unearthed it, brought by the American Civil Liberties Union, continues. Americans deserve to know more about what their government has been doing beyond the contours of civilized behavior, and quite possibly beyond the bounds of the law.

© 2008 San Francisco Chronicle

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