In all the tangled wreckage George W. Bush will hand off to his successor, there's nothing quite as perilously convoluted as the questions surrounding torture and the fate of the Al Qaeda terrorists currently in U.S. hands.
Just how and why this is became much clearer this week, when the administration -- acting under pressure from Democratic senators and the American Civil Liberties Union -- finally declassified what is known as "the torture memo." If the title seems bleakly macabre, the extraordinary 81-page document, written in 2003, lives up to its billing.
The White House looks to the Justice Department's Office of Legal Counsel for advice on the legality of its own conduct. In August 2002, the office had advised the president that he had legal authority to allow the Central Intelligence Agency to torture Islamic militants taken into custody in Afghanistan. A debate had arisen within the administration on that point after the CIA had used physical abuse to coerce information from one of Osama bin Laden's top deputies, Abu Zubaydah, who was captured in March 2002. That advice also would be used to justify the waterboarding of Khalid Shaikh Mohammed, the alleged mastermind of 9/11 who was apprehended in Pakistan in early 2003.
Late in 2002, then-Secretary of Defense Donald H. Rumsfeld allowed torture to spread beyond the CIA to military interrogators at Guantanamo Bay, Cuba. There, a detainee was -- among other things -- placed in stress positions, hooded, kept nude, exposed to extreme heat and cold and menaced by dogs. The Defense Department's own military lawyers rebelled; Rumsfeld and the White House sought advice from the Office of Legal Counsel.
In March 2003, John C. Yoo, a deputy in the office, responded with the now-declassified 81-page memo, a dramatic expansion of the opinion on the CIA, which he also drafted. In essence, Yoo argued that, when acting as commander in chief in time of war, a president cannot be constrained by American or international laws and treaties:
"In wartime, it is for the president alone to decide what methods to use to best prevail against the enemy," Yoo wrote. Elsewhere in the memo, he argued that "even if an interrogation method arguably were to violate a criminal statute, the Justice Department could not bring a prosecution because the statute would be unconstitutional."
