From the Los Angeles Times

Memo to the next president

Tim Rutten

April 5, 2008

In all the tangled wreckage George W. Bush will hand off to his successor, there's nothing quite as perilously convoluted as the questions surrounding torture and the fate of the Al Qaeda terrorists currently in U.S. hands.

Just how and why this is became much clearer this week, when the administration -- acting under pressure from Democratic senators and the American Civil Liberties Union -- finally declassified what is known as "the torture memo." If the title seems bleakly macabre, the extraordinary 81-page document, written in 2003, lives up to its billing.

The White House looks to the Justice Department's Office of Legal Counsel for advice on the legality of its own conduct. In August 2002, the office had advised the president that he had legal authority to allow the Central Intelligence Agency to torture Islamic militants taken into custody in Afghanistan. A debate had arisen within the administration on that point after the CIA had used physical abuse to coerce information from one of Osama bin Laden's top deputies, Abu Zubaydah, who was captured in March 2002. That advice also would be used to justify the waterboarding of Khalid Shaikh Mohammed, the alleged mastermind of 9/11 who was apprehended in Pakistan in early 2003.

Late in 2002, then-Secretary of Defense Donald H. Rumsfeld allowed torture to spread beyond the CIA to military interrogators at Guantanamo Bay, Cuba. There, a detainee was -- among other things -- placed in stress positions, hooded, kept nude, exposed to extreme heat and cold and menaced by dogs. The Defense Department's own military lawyers rebelled; Rumsfeld and the White House sought advice from the Office of Legal Counsel.

In March 2003, John C. Yoo, a deputy in the office, responded with the now-declassified 81-page memo, a dramatic expansion of the opinion on the CIA, which he also drafted. In essence, Yoo argued that, when acting as commander in chief in time of war, a president cannot be constrained by American or international laws and treaties:

"In wartime, it is for the president alone to decide what methods to use to best prevail against the enemy," Yoo wrote. Elsewhere in the memo, he argued that "even if an interrogation method arguably were to violate a criminal statute, the Justice Department could not bring a prosecution because the statute would be unconstitutional."

To gauge the implications of that first stunning sentence, consider this hypothetical proposition: Suppose that a future president, faced with an Al Qaeda-style terrorist organization, decided that the way "to best prevail against the enemy" was to eliminate the population from which it sprang -- in other words, to commit genocide.

Are we supposed to believe that the Constitution confers such unchecked power on the president, however dire the emergency? Of course not.

Just as the Constitution's guarantees of individual liberty cannot be fashioned into a civic suicide pact, so its grants of authority cannot be construed as a warrant for murder, whatever the provocation. Our framers were fundamentally products of the Age of Reason. The Constitution they drafted was that era's supreme political statement, and it was their reliance on realism and reason that infused our national charter with a unique moral sanity.

Any time somebody tells you that the Constitution requires an extreme or morally repellent act -- as Yoo does in the torture memo -- be assured that you're dealing with the willful and aberrant. In this case, it's a legal theory that's both: the so-called unitary executive, which holds that inherent powers of the chief executive cannot be constrained by the legal acts of either the legislative or judicial branches.

Vice President Dick Cheney and his allies came into office determined to impose the unitary executive theory on a government they believed had dangerously weakened presidential power. In the fear-shrouded days after 9/11, they clearly believed that they'd found the running room they needed. And, in the strangely isolated and willful personality of George W. Bush, Cheney et al found just the man to make the run. (The last George to conceive his prerogatives over the American people in quite this fashion came from Hanover, not Texas.)

Finally, both Bush and Cheney found an all-too-willing enabler in Yoo. America's version of banal evil lurks in the bloodless abstractions of mid-level lawyers, rather than in the gray efficiency of faceless bureaucrats.

It is convenient to imagine that the next election will sweep all this away, particularly because all three remaining presidential candidates reject the unitary executive idea and have promised to shut down Guantanamo. The problem is that the military commissions the Bush administration has established to try the Al Qaeda criminals -- and criminals are what they are -- are an affront to our constitutional system. If they're abolished, as they should be, it might be possible to try Khalid Shaikh Mohammed and the rest of the gang in courts operating under the Classified Information Procedures Act, as we now do spies.

Even there, what do you do about information, including confessions obtained by torture? No U.S. court will allow it to be used as evidence, and finding a way to bring the Al Qaeda criminalsto justice based on cases this badly muddled will be one of the next president's worst headaches.