From the Washington Post:
The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president’s ultimate authority as commander in chief overrode such statutes.
Sent to the Pentagon’s general counsel on March 14, 2003, by John C. Yoo, then a deputy in the Justice Department’s Office of Legal Counsel, the memo provides an expansive argument for nearly unfettered presidential power in a time of war. It contends that numerous laws and treaties forbidding torture or cruel treatment should not apply to U.S. interrogations in foreign lands because of the president’s inherent wartime powers.
“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,” Yoo wrote. “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.”
Interrogators who harmed a prisoner would be protected by a “national and international version of the right to self-defense,” Yoo wrote. He also articulated a definition of illegal conduct in interrogations — that it must “shock the conscience” — that the Bush administration advocated for years.
“Whether conduct is conscience-shocking turns in part on whether it is without any justification,” Yoo wrote, explaining, for example, that it would have to be inspired by malice or sadism before it could be prosecuted.
In other words, poking, prodding, and slapping are okay as long as it doesn’t get kinky.
In spy movies, there’s always some hard-bitten character (Bruce Willis) who tells the idealistic and usually younger trainee (Keanu Reeves) something along the lines of “if you knew the kinds of things we did in the name of our country, it’d curl your hair.” Then he proceeds to beat the crap out of some swarthy-looking bad guy who finally fesses up to planting a bomb or something just in time to save the world. It’s the stuff of Spike TV movies and 24, and it never fails to gin up the audience — usually males between the ages of 14 to 24 — to cheer on the good guys.
That’s the movies, and it sounds like John Yoo has seen too many of them. There probably are things that black-ops forces within the military and the spy agencies do in the conduct of war and intelligence gathering that would shock the conscience, and there are always people who will frame it in the stark terms of “it’s us or them,” or wrap it in patriotism so they can say that if it wasn’t for the dirty little secrets, we wouldn’t enjoy the freedoms that we take for granted, all to the undercurrent of stirring Sousa marches and waving flags and all that. But when you get right down to it, amoral people have always used those reasons as the excuse for their excesses, and the people who really know what really goes on say that the excesses don’t work — a suspect will confess to kidnapping the Lindbergh baby if he thought it would spare him a waterboarding. It’s only the neocons, the Jack Bauer wannabes, and the legalistic Torquemadas who have relied on the Nixonian excuse of “if the president does it, that means it is not illegal.”
Do I have to say that permitting the techniques that Mr. Yoo advocates basically reduces us to the same level as the terrorists we’re trying to stop? Do I have to say that supposedly one of the things that makes our democracy and civilization better than the others is that we know that this sort of thing is wrong? Do I have to say that justifying terrible things in the name of the president or the Constitution is an assault on reason and the rule of law, and that one of the reasons this country had a revolution and fought for independence was because of the cruel tyrannies that were being done in the name of the king? At what point will these people who justify these crimes in the name of a higher calling or principle realize that no principle is worth fighting for if it has to be sustained by illegal and immoral means?
I think we already know the answers.