This week, the Pentagon declassified a 2003 memo in which a Justice Department lawyer essentially told the U.S. military that it could subject suspected terrorists to harsh treatment as long as it didn't cause "death, organ failure or permanent damage." If that bloodless phraseology seems familiar, it's because this memo from then-Deputy Assistant Atty. Gen. John C. Yoo echoed an earlier document he drafted for the Justice Department's Office of Legal Counsel that came to be known as the "torture memo."
Both memos were later rescinded, but their poisonous legacy lives on in the Bush administration's continuing insistence that CIA interrogators may use "enhanced" interrogation methods that are off limits to their military counterparts. Only last month, President Bush vetoed legislation that would require the intelligence agency to abide by the Army Field Manual, which prohibits military interrogators from using waterboarding and other techniques that most reasonable people would consider torture. The manual was revised after the scandal at Abu Ghraib prison in Iraq, where inmates were brutalized by U.S. personnel.
In the 2003 memo, Yoo suggested that because the United States was at war with terrorists, military interrogators could subject suspected terrorists to mistreatment that might be criminal if engaged in by a civilian. He wrote that "we do not believe that Congress enacted general criminal provisions such as the prohibitions against assault, maiming, interstate stalking and torture pursuant to any express authority that would allow it to infringe on the president's constitutional control over the operation of the armed forces in wartime." Or as another constitutional lawyer, Richard Nixon, put it in a post-Watergate interview: "Well, when the president does it, that means it is not illegal."
Anticipating Bush's statement about the need for unspecified enhanced interrogation techniques, Yoo's memo recounts the horrible events of Sept. 11, 2001, and the inhuman acts of the 9/11 conspirators. But as Arizona Sen. John McCain eloquently argued during his campaign for the Republican presidential nomination, this country shouldn't descend to the depravity of its enemies. "It's not about the terrorists," McCain said, "it's about us."
Indefensibly, McCain voted against the legislation to require the CIA to abide by the Army Field Manual. Although Sens. Hillary Rodham Clinton (D-N.Y.) and Barack Obama (D-Ill.) weren't present for the vote, they endorsed the legislation. If nothing else, the belated outcry over the Yoo memo should strengthen the resolve of Congress to force the president to make good on his promise that "we do not torture" by sending this legislation back to him again until he signs it or it is approved over his veto.