If you thought that the administration of George W. Bush was more lawless than the certified one of Richard M. Nixon, records keep proving you right, or did before they were in some cases destroyed.
But only in Nixon's fevered brain was he above the law, and he would discover to his sorrow that he wasn't. Bush got his law-enforcement department to certify that laws did not apply to him or anything done under his aegis in wartime, and it seems unlikely that he will ever be accountable.
The torture memoranda written for Bush by John C. Yoo will someday appear in a compendium of infamous documents of American history alongside the slavery tracts, Roosevelt's order relocating West Coast Japanese to compounds in Arkansas and elsewhere and Hirabayashi v. United States, the first of the treacly U.S. Supreme Court decisions that affirmed its correctness.
The last of the Yoo memos to be declassified and made public last week by Senate Democrats told the Defense Department that neither international treaties nor American criminal laws against the brutal treatment of prisoners applied to military interrogators of suspects rounded up in the war on terror because it was done for the commander in chief, whose supreme authority overrode those laws. Yoo was then a deputy in the Justice Department's Office of Legal Counsel and the man picked to provide the administration the legal underpinnings to torture people who were suspected of being al Qaeda members or Taliban soldiers.
An earlier Yoo legal memorandum had defined away torture for the CIA. Torture had nothing to do with the actual treatment of prisoners, even if the abuse killed them, but rather what was in the mind of the interrogator. If he did not actually intend to kill the suspect it could not be torture so no military, domestic or international laws were flouted.
It took Yoo 81 pages to explain why the president could authorize acts of extreme cruelty and everyone from the president down to the actual perpetrators could avoid ever being convicted of a crime. Certainly, he assured, his department would not be trying to convict them. The memo was long because he took pains to single out all the statutes that the president of the United States was above, if he was at war: the Geneva Conventions, international laws against torture, and a host of federal laws against war crimes, assault, maiming and stalking.
Yoo left the Justice Department shortly afterward and nine months later the Justice Department told the Pentagon that soldiers should no longer rely on Yoo's memo. Lawyers for the service branches were shocked by its callousness and twisted arguments. Yoo's successor at the Justice Department would conclude that Yoo's memos were far off the mark, that they stood out for “the unusual lack of care and sobriety in their legal analysis.” But the damage was done. The word was out that there are no rules in this war and that the gloves were off, whether at Abu Ghraib, Guantanamo, the Charleston brig or any other place where “detainees” were sequestered.
While Yoo would resurrect heinous precedents to justify inhumanity to the administration, such as the execution of Indians who refused to go on reservations, he skirted the whole drift of the American experiment since the Declaration of Independence and Gen. George Washington's declaration that the torture of captives would not be tolerated even if the life of the new country was in peril. The 14th amendment recognized that there were basic rights that extended to every human being on earth and that upon American soil or under American authority those rights would be recognized whether for citizen or alien.
Much of Yoo's argument was devoted to protecting people under the president from criminal prosecution for abusing prisoners. They would be shielded from prosecution by the argument of self-defense. If they thought they were trying to prevent a terrorist attack anything they did would be lawful.
But he may have been wrong about that, too. The CIA was so distrusting of Yoo's argument that its officers destroyed hundreds of hours of videotapes documenting brutal interrogations of prisoners because they believed the cruelty was illegal and that the president's unbridled authority as commander in chief would not protect them. If the evidence was destroyed no one could be charged.
Now, the lawsuits are piling up and criminal and congressional investigations are under way. The CIA, the Defense Department and other agencies are fighting legal challenges to the inhumane treatment and the destruction of evidence. A federal judge has suggested that by destroying tapes, the CIA violated court orders to preserve evidence in the cases of a Yemeni prisoner at Guantanamo. The destruction of evidence of abuses may end up freeing a number of terrorist suspects, an ironic conclusion to the legal campaign, although Bush's new Supreme Court may undo the precedents.
One federal prosecutor is examining whether the destruction of tapes amounted to obstruction of justice, in which case at least someone may finally be accountable. It won't reach John Yoo and the men for whom he pandered.