by Chris Edelson, an assistant professor of government in American University's School of Public Affairs. He is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.
Following release of the redacted Senate Intelligence Committee's majority report on torture, critics are insisting that the report overlooks the value of waterboarding, sleep deprivation and other interrogation methods better suited to the Spanish Inquisition than a constitutional republic. Those who defend torture tend to emphasize its supposed efficacy in extracting intelligence that prevents terrorist attacks. In fact, those who insist torture saves lives have never identified evidence that proves their case.
More importantly, however, arguing about the efficacy of torture point obscures two essential points: (1) torture, by definition, is illegal and (2) the argument in defense of torture is a rejection of the rule of law.
Defenders of the Bush administration’s tactics have helped make these points clear. For example, on yesterday's “Morning Joe,” former Bush communications chief Nicolle Wallace declared that she “pray[s] to god that until the end of time, we do whatever we have to do to find out what’s happening [in terms of planned terrorist attacks].” She suggested that we must trust the government to do whatever it believes is necessary to protect the nation -- in her words, “I don’t care what [the government] did” after 9/11 to prevent another terrorist attack -- as long as it works.
Wallace is an effective and powerful speaker, and I thought her bombastic approach caught her sparring partner, Howard Dean, off guard and made for good TV. But it's worth taking more time than cable TV allows in considering the implications of what she said.
Wallace's argument is a case for handing over power to the executive branch, assigning it complete power to defend the nation, unrestrained by law. That is, of course, not what the framers of the U.S. Constitution had in mind when they created a system of checks and balances designed to give government enough power to carry out is responsibilities but also to set definable limits on that power. It is, however, precisely how government officials who authorized torture justified their actions. In once-secret memos written on August 1, 2002, former Justice Department lawyers John Yoo and Jay Bybee concluded that waterboarding, sleep deprivation and other methods CIA interrogators wanted to use on suspected al Qaeda leader Abu Zubaydah could not be defined as torture. Their view depended on the preposterous notion that severe physical pain necessary to constitute torture under U.S. criminal law could be defined by reference to health care statutes. But it is the backup argument that Yoo and Bybee relied on that is most chilling: they concluded that President George W. Bush could authorize any interrogation methods he deemed necessary, even if such methods violated U.S. criminal law. The president, they said, could not be constrained by Congress in this area.
That is the language of an executive branch above the law, the same language Wallace uses when she says that she doesn't care what the government did to prevent terrorist attacks after 9/11, that it must do whatever is necessary. Bush administration lawyers agreed, concluding that the executive branch is not constrained by law.