The Torture Administration (Page 3)

The truth is that most members of Congress are scared to do anything that could be portrayed, in a campaign, as being soft on terrorists. They worry that if there is another terrorist strike in this country, any vote to hold true to the law of war or even to investigate what has happened could be held against them.

Playing cat's-paw to the Administration, Congress has turned aside all demands for an independent investigation of Abu Ghraib and the other horrors--and of the policies that led to them. When Dana Priest of the Washington Post uncovered the chain of secret CIA prisons around the world, the reaction of Republican leaders of the House and Senate was not to look into the agency's doings but to demand an investigation of the leak.

The press has provided flickering light on the torture scandal, with some notable stories but not the sustained, relentless attention of Watergate. In the daily papers the outstanding performer has been Priest, who uncovered the Justice Department memos that took such a permissive view of torture. Seymour Hersh told us about Abu Ghraib and much else in The New Yorker.

The public, as I have indicated, seemed to lose its sense of outrage once the visual evidence from Abu Ghraib faded. As in every war through American history, it looked primarily to the President to ease its anxiety. The fear aroused by September 11 did not easily dissipate.

Not one of the major actors in the torture story has been effectively called to account: not Rumsfeld, who loosened the rules on interrogation of prisoners; not Alberto Gonzales, now Attorney General, who as White House Counsel approved the torture memorandums; and not the Justice Department lawyers who wrote them.

Among those officials there is no sign of repentance. One of them has indeed become a kind of preacher of the legitimacy of using pressure on suspected terrorists. He is John Yoo, who was a lawyer in the Justice Department's Office of Legal Counsel from 2001 to 2003 and is now a professor at the law school of the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute in Washington. In frequent television appearances and public forums he argues a theme of those torture memos: that President Bush as Commander in Chief is empowered by the Constitution to order what treatment he wishes for detainees in the "war on terror." His constitutional argument, that the Framers of the Constitution intended to clothe the President with the war powers of a king, conflicts with the near universal understanding of the constitutional text, with its careful balancing of executive, legislative and judicial power.

A New York lawyer who has contributed greatly to exposure of the torture phenomenon, Scott Horton, has suggested that Yoo's views echo those of a German legal thinker of the period between the world wars, Carl Schmitt. Schmitt argued that when it came to degraded enemies like the Soviet Union, the idea of complying with international law was a romantic delusion. The enemy, rather, must be seen as absolute--stripped of all legal rights.

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