How did they ever get away with it?
Last week, the Justice Department released a batch of memos drafted in 2001 and 2002 by lawyers in the Bush administration's Office of Legal Counsel. Written mainly by John Yoo, then a deputy director in the office, they laid out the purported legal justifications for a theory of presidential power amounting to virtual dictatorship.
Collectively, they declare that if the U.S. military were deployed against suspected terrorists inside the United States, even U.S. citizens wouldn't be protected by the Fourth Amendment's prohibition against unreasonable search and seizure. They also conclude that citizens and noncitizens could be designated "unlawful enemy combatants" by the president on the basis of secret evidence. And once that happens, they could be locked up indefinitely and tortured, without charge, access to counsel or any procedure through which to challenge the detention or treatment.
I know: All this is old hat. With so many leaks over the years, who doesn't know by now that the Bush administration sought virtually unlimited executive power to monitor, detain and use force against individuals anywhere around the globe in the name of the "war on terror"?
But even today, it's still shocking to see it laid out in black and white.
In a way, what's most shocking is just how outrageously bad the office's legal arguments were. The 2001-2002 memos mischaracterize previous Supreme Court decisions, ignore crucial legal precedents and contain gaping holes in logic. To accept the theories the Office of Legal Counsel came up with, you need to assume that George Washington and Thomas Jefferson had it all wrong when they rebelled against Britain's King George III in 1776. You need to believe, more or less, that the 225 years of American jurisprudence between 1776 and 2001 amounted to one giant mistake.
The memos are so embarrassingly foolish that the Office of Legal Counsel itself was ultimately forced to repudiate them. In October 2008, the office advised that "caution should be exercised before relying in any respect" on its own previous advice about domestic surveillance or the domestic use of the military. A week before President Barack Obama's inauguration, the office issued another "never mind" memo, stating that "certain propositions stated in several memos respecting ... matters of war and national security do not reflect the current views of this office."
Better late than never, I guess.
But all this raises the question: How did such dangerously bad legal memos ever get taken seriously in the first place?
One answer is suggested by the so-called Big Lie theory of political propaganda, articulated most infamously by Adolf Hitler. Ordinary people "more readily fall victim to the big lie than the small lie," wrote Hitler, "since they themselves often tell small lies ... but would be ashamed to resort to large-scale falsehoods. It would never come into their heads to fabricate colossal untruths, and they would not believe that others could have the impudence to distort the truth so infamously."
In other words: Paradoxically, the more outrageous the claim, the more apt we are to assume there must be some truth to it. Just as some banks and insurance companies are apparently "too big to fail," some claims from those with political power seem to strike us as "too big to disbelieve." "That seems so outrageous it must be right," we tell ourselves. "The important people keep saying it -- they must know something I don't know."
That's the only explanation I can come up with for why the 2001-2002 memos stood as Bush administration doctrine for as long as they did. (The Big Lie theory also helps explain why other manifestly false Bush administration claims prevailed in the face of the evidence: Recall, for instance, how we were assured that Iraq had weapons of mass destruction and that the war would be a cakewalk?)
Big lies prevail because we can't bring ourselves to believe that our leaders could be so dishonest or deluded. And big lies can do terrible damage, of course. The Bush administration's big legal lies paved the way for some of the most shameful episodes in our history, including the official authorization of torture.
In the end, thankfully, all big lies collapse under their own weight. We're in a new era: The early memos produced by the office have been repudiated, and the Bush administration was sent packing with rock-bottom public approval ratings.
But don't think we're out of the woods. As Hitler demonstrated, some small part of the most "impudent lies" will always remain and stick. Big lies leave little lies in their wake, changing the political discourse in enduring, difficult-to-detect ways.
And that's the challenge we now face: tracing the barely visible effects of the Bush administration's now-repudiated big lies -- through our legal system, our constitutional system, our foreign policy -- and undoing all the damage.
It will take a generation.