To date, 130 War on Terror detainees have died in U.S. custody at prisons like Abu Ghraib in Iraq. Our government has classified 28 of those deaths as homicides and nearly every case occurred during interrogation sessions. These deaths are not entirely unrelated to the Bush Administration's wartime philosophy, which holds international law (the Geneva Conventions) and even U.S. law (the War Crimes Act) in contempt.
The arguments underpinning Bush's philosophy, largely constructed by obscure UC-Berkeley law professor and former Justice Department official John Yoo, are simple, powerful and superficially appealing. The basic argument is that our nation faces an unprecedented terrorist threat and thus must employ unprecedented methods in response. Yet that basic argument, as the cold body count implies, is deeply flawed. If we defeat al-Qaeda et al. but lose our values in the process, it will not be even a hollow victory.
From 2001-2003, John Yoo helped write the Patriot Act and many of the Justice Department memos to the White House that expanded the powers of the executive to 'manage a military campaign' by any means'including torture. Yoo's reasoning begins with the premise that the president's war powers cannot be legally or constitutionally constrained by international laws or treaties, the U.S. Congress or federal judiciary. Two week ago, in public debate, Notre Dame professor Doug Cassel challenged Yoo's theory:
Cassel: If the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?
Yoo: No treaty.
Cassel: Also no law by Congress'that is what you wrote in the August 2002 memo...
Yoo: I think it depends on why the President thinks he needs to do that.
According to Yoo, the executive branch must have maximum 'flexibility' during war. Vice President Cheney uses the same term, 'flexibility,' and the same reasoning, when it comes to criticizing Senator John McCain, R-Ariz., who inserted an anti-torture amendment into a military appropriation bill. Cheney wants an exemption for the CIA'which prompted former agency director Stansfield Turner to dub him 'vice president for torture.'
The second part of Yoo's argument in favor of torture, as New York human rights lawyer Scott Horton noted, has its origins in the work of a brilliant, yet Faustian, German lawyer'Carl Schmitt. Before the Second World War, Schmitt argued that the Reich must ignore all international laws when fighting the Soviets or else be defeated by the fanatical, lawless 'demon' of an enemy. To get a sense of Schmitt's views, consider the creepy title of his 1937 work: Total Enemy, Total War, Total State.
Just change the enemy from Soviets to Terrorists and it is easy to see that Yoo probably absorbed Schmitt's arguments'which were published in English translation by Yoo's own publisher. Yoo's memos argued that the Geneva Conventions do not apply to our own lawless demons (terrorists).
Former White House Counsel Alberto Gonzales'now attorney general'called Geneva 'quaint' and 'obsolete' while describing Yoo's argument as 'definitive.' President Bush agreed, issuing a 'presidential determination' that the Geneva Conventions do not apply to terrorists.
Finally, the argument in favor of torture becomes one of utility: Torture is a means to an end (namely, victory in Iraq). Strangely, arguments against such amoral utilitarianism are most striking when in the metaphorical form. In 'Crime and Punishment,' Dostoevsky's Raskolnikov murders the miserly Petersburg lady in order to improve society and his life with her money; in Alan Moore's 'The Watchmen,' villain-hero Ozymandias 'saves' the world by destroying New York City.
So while at its roots Yoo's argument is simple and powerful'the President must be allowed to do whatever it takes to preserve the Republic'it is a morally bankrupt argument that can have no consequences save those of lawlessness, dishonesty and, ultimately, 130 detainee deaths or more.
Perhaps Michael Ignatieff, in his book 'The Lesser Evil,' puts the point best: 'It is the very nature of a democracy that it not only does, but should, fight with one hand tied behind its back. It is also in the nature of democracy that it prevails against its enemies precisely because it does.'
