John Yoo and the Bush administration have brought shame upon America, as a result of their attempt to legally justify the torture of prisoners, writes Rick Moran.

I don’t expect too many of you to agree with me about the shame I believe that John Yoo and the Bush Administration has brought upon America as a result of their attempt to legally justify the torture of prisoners. From what I’ve been reading for years on other conservative sites, I know that many of you believe that any treatment we hand out to terrorists is too good for them, that they deserve to suffer and besides we need the information that only torture will elicit. Beyond that, there is a troubling rationale used by many conservatives that posits the notion of reciprocity; that because the terrorists treat prisoners in a beastly manner, it is perfectly alright for us to do the same to them.

It vexes me that conservatives believe such nonsense - believe it and use it as a justification for the violation of international and domestic law not to mention destroying our long standing and proud tradition of simply being better than that. Why this aspect of American exceptionalism escapes my friends on the right who don’t hesitate to use the argument that we are a different nation than all others when it comes to rightly boasting about our vast freedoms and brilliantly constructed Constitution is beyond me.

But for me and many others on the right, the issue of torture defines America in a way that does not weigh comfortably on our consciences or on our self image as citizens of this country. I am saddened beyond words to be associated with a country that willingly gives up its traditions and adherence to the rule of law for the easy way, the short cut around the law, while giving in to the basest instincts we posses because we are afraid.

I do not wish terrorists to be tortured. I wish them dead. But if they must surrender themselves to our custody or if we find it to our tactical advantage to hold them, then we have no alternative but to treat them as Americans treat prisoners not as the terrorists themselves treat their captives. This is self evident and it is shocking at times to be reviled as a “terrorist lover” just because I wish that our tradition of human decency and adhering to the rule of law be upheld.

The specifics of what is or what is not torture matter not. Inflicting pain is not something you can put on a scale and judge whether an interrogation technique crosses some invisible line between just being a little painful and outright agony. Mental and physical pain inflicted on purpose is a crime according to international law and our domestic statutes. It is pure sophistry to argue otherwise.

Let’s be clear on this; John Yoo’s memo does a tap dance around the Constitution, the UN treaty banning torture, and domestic laws prohibiting our public officials from engaging in acts that cause bodily harm to another person.

I am not a lawyer. But I can read. When a document is written in order to justify what otherwise would be illegal acts during peacetime (something that is clearly on Yoo’s mind throughout much of his memo), one would hope that something besides expanding the power of the executive to grant immunity to those who carry out the erstwhile illegalities would be used as a legal framework. Yoo makes little attempt, from my reading, to do so.

One example of this breathtaking and troubling expansion of executive authority:

On Page 47 of the Yoo memo, if I’m not mistaken, there’s the amazing assertion that the Convention Against Torture doesn’t apply whenever the president says it doesn’t. “Any presidential decision to order interrogations methods that are inconsistent with CAT would amount to a suspension or termination of those treaty provisions.” Doesn’t this mean that whether or not a treaty has been ratified, with or without express reservations, Yoo is saying that the president can implicitly and on his own authority withdraw the United States from the treaty simply by not abiding by it? Is there precedent for such a claim? In my quick scan so far of the tortured (sorry) reasoning here, I can’t find anything other than ipso facto—because I say so, the president says so.

From the memo Part II, page 41, we see a similar justification for defense against charges of torture, i.e. the president says it’s OK:

As we have made clear in other opinions involving the war against al Qaeda, the Nation’s right to self-defense has been triggered by the events of September 11. If a govenunent 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. 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. This national and international version of the right to self-defense could supplement and bolster the government defendant’s individual right.

How can any conservative believing in limited government not at the very least look twice at such an expansion of government authority?

I believe that Vice President Cheney is correct when he says that executive power suffered as a result of naked power grabs by the Democratic Congress back in the 1970’s. But this goes far beyond redressing any imbalances that occurred as a result of abuses of executive authority uncovered in Watergate and Viet Nam. It does not appear that Mr. Yoo has deigned to supply any limits whatsoever to executive power during wartime.

As for his justifications for torture, some of Yoo’s reasoning is positively Orwellian:

As to mental torture, Richard testified that “no international consensus had emerged [as to] what degree of mental suffering is required to constitute torture[,]“but that it was nonetheless clear that severe mental pain or suffering “does not encompass the normal legal compulsions which are properly a part of the criminal justice system[:] .interrogation, incarceration, prosecution; compelled. testimony against a friend, etc,-notwithstanding the fact that they may have the incidental effect of producing mental strain.” Id. at 17. According to Richard, CAT was intended to “condemn as torture intentional acts such as those designed to damage and destroy the human personality.” Id. at 14. This description of mental suffering emphasizes the requirement that any mental harm be. of significant duration and supports our conclusion that ( mind-altering substances must have a profoundly disruptive effect to serve as a predicate.act.

It is a mindset like this that can justify barbarity.

I don’t buy the argument that because it only hurts “a little” that it’s not torture. The difference between having your fingernails pulled out and being forced to stand for 24 hours is irrelevant. It is the intent that matters. And if the intent is to cause suffering in order to get a prisoner to talk, that is torture whether it is chaining a terrorist to the floor and turning up the heat or making him believe he is drowning as a result of waterboarding.

Ed Morrissey, Christian gentleman that he is, wrestles mightily with this issue and comes up short. First, he attempts to spread the blame for torture authorization to the Congress:

First, the 2003 memo didn’t authorize the start of coercive techniques. As early as September 2002, Congressional leadership of both parties got briefed on interrogations of three al-Qaeda operatives. The CIA gave members of both parties dozens of classified briefings which detailed such techniques as waterboarding, stress positions, and other controversial methods that Congress later acted to ban. This obviously predates the Yoo memo.

Yoo also didn’t occupy any position that could have authorized any interrogative techniques. He provided a legal analysis when asked, but the responsibility for relying on the analysis falls to the CIA, Pentagon, and White House. Congress certainly appeared to agree in that same time frame; the reporting on the briefings notes that none of the Congressional delegation raised any objections during the briefings. One specifically asked whether the interrogations should be made tougher.

I would say to Ed that just because two branches of our government signed off on torture does not make it right. Whether it makes it legal or not may be another question. But it seems to me that Ed is trying to spread the blame for the US using torture techniques around and include Congress. If that is what he is trying to do, I find it irrelevant.

And I would agree with Ed that Yoo is hardly a “war criminal” as Lambchop would have us believe. There was no force of law behind this memo. As Ed rightly says it was the CIA, the Pentagon and especially the White House who relied on this memo to justify acts that would ordinarily violate international and domestic laws. Yoo was asked to give an opinion nothing more. This was no “Wannsee” scenario where justification for implementing the Nazi “Final Solution” were developed and discussed. Yoo himself may have been surprised that his memo became policy although I’m sure he didn’t mind it at the time.

The fact that his memo was withdrawn a year later and others substituted for it makes me think that the liberal criticism of the memo being a slap-dash, insufficiently fleshed out document with poor or non-existent justifications for such a massive change in policy to be pretty close to the mark. Again, I’m no lawyer but in reading it, I was struck again and again by how almost everything could be squeezed into the broad executive authority that Yoo was creating by expanding the limits of executive power. Ed Morrissey says in his piece that Yoo defined the president’s limits. This he did. But Ed did not mention that Yoo vastly expanded those limits from where they were in peace time. Did he expand them too much? I believe he did.

At some point in the future, we will be able to look back at the decisions that were made in the aftermath of 9/11 and make judgements based on how history unfolded. Some of those judgements will almost certainly meet with near universal approval. Others may prove to be less than efficacious.

But I sincerely doubt whether history will be kind to John Yoo or the president he thought he was serving when he used his considerable legal talents to justify throwing the law, the Constitution, and our good standing in the world out the window by giving a “legal” basis for torture.