A tortured interpretation

A tortured interpretation

In dozens of speeches, President Bush has said that he has no greater responsibility than to protect the American people.

He said it as recently as March 8, when he was marking the fifth anniversary of the Department of Homeland Security.

It is difficult to argue with the sentiment, but it is worth remembering that the presidential oath of office does not put the accent on protecting and serving the people, it specifically requires the president to ”preserve, protect and defend the Constitution of the United States.”

And yet, the release last week of the 81-page “torture memo” drafted by the Office of Legal Counsel in 2003 shows that the Bush Administration is more than willing to promote its vision for protecting Americans above the founders’ vision of a constitutional government with checks and balances between the executive, legislative and judicial branches.

The ‘24’ scenario

Much of the attention has focused on those parts of the memo written by John Yoo, then deputy assistant attorney general for the office, suggesting that American interrogators could, under narrow circumstances, gouge out eyes or burn skin with acid. The idea that one of the nation’s top lawyers was sitting in a Washington office drafting a government memo that sounds more like stage directions for Jack Bauer in an episode of “24” is unsettling in itself.

But its legal underpinnings are frightening. In short, Yoo holds that the president’s inherent powers in wartime override any federal law or international treaty. It’s a return to the Nixonian doctrine of “when the president does it, that means it’s not illegal.”

Now, we’ll stipulate that on Sept. 11, 2001, this page described the attack on the World Trade Centers as an act of war. And, we all know we’re at war in Iraq. And that there is an often cited war on terror. But from a constitutional perspective, the United States is not in a declared war. To argue that the president can describe a set of circumstances as a war and then take unto himself extraordinary powers that trump the sitting Congress and laws passed or treaties ratified by previous congresses is to render the Constitution meaningless.

Government — the president, Congress and the judiciary — should protect the American people from all manner of threats. That is a given. But how to best protect America — its people and what it stands for — is a complicated issue.

View from abroad

For instance, in his March 8 speech, President Bush said, “The only way these terrorists can recruit operatives, the only way they can convince somebody that their dim vision of the world is worth following, is to feed on hopelessness and despair.” That’s not exactly true. Another way for them to recruit is to be able to portray the United States as a nation that is less than a beacon of freedom and hope, a nation so intent on protecting its people and its power that it places its president above international treaties, such as the Geneva Conventions, on matters of detention, treatment and torture of those it sees as enemies. That becomes a very powerful recruiting tool.

As the Orlando Sentinel recently noted, President Bush often declares that he defers to the judgment of his military commanders. Army Gen. David Petraeus, in a letter last year to U.S. forces in Iraq, wrote that torture is not only illegal, but also “frequently neither useful nor necessary.”

Yet a month ago, the president vetoed legislation that would have barred the CIA from any interrogation technique that might be considered torture. The president can maintain that the rules for the army and the rules for the CIA must be different. But that is a difference without distinction to those who are busy recruiting the next generation of anti-American terrorists.