Preventive Detention and the Rule of ___

I had an interesting discussion yesterday with one of my tutors about President Obama's terror policy. The tutor is an expert on American history and has done significant work on the Constitution, Supreme Court, and development of the American legal system. He expressed some disappointment with Obama's speech at the Archives, calling his terrorism policy "a carbon copy of Bush's." We went back and forth over that remark for a few minutes, but ultimately what he was getting at was the policy of preventive detention - also known as prolonged detention, administrative detention, and indefinite detention. This is the policy, in Obama's own words:

Now, finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. And I have to be honest here -- this is the toughest single issue that we will face. We're going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.

Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture -- like other prisoners of war -- must be prevented from attacking us again. Having said that, we must recognize that these detention policies cannot be unbounded. They can't be based simply on what I or the executive branch decide alone. That's why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified. 

I know that creating such a system poses unique challenges. And other countries have grappled with this question; now, so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

This section of the speech has earned a fair bit of attention. Essentially, the President is announcing that we'll bring as many of the prisoners at Guantanamo into courtrooms as we can, but there are some who can't be tried. Those prisoners will remain locked up for as long as the government decides is necessary.

It's not clear that such a legal regime would be constitutional. Prolonged detention by the executive without trial was abandoned long ago in Western legal tradition, and it would be a clear violation of the rule of law to bring it back. That is why the President was so careful to point out that any system of prolonged detention would be subject to legislative and judicial participation and oversight - doing so would avoid (in theory, at least) arbitrary extended detention at the hands of the executive. 

In a helpful article unpacking the issue, the NYT referred to the practice of prolonged detention without trial as "at the very boundary of American law," and quoted Michigan law professor Monica Hakimi as saying that the practice would be "an aggressive approach that is not commonly taken in other Western developed countries." Furthermore, the system Obama is advocating is strangely dismissive of the role of U.S. courts in antiterror policy:

Civil liberties lawyers say American criminal laws are written broadly enough to make it relatively easy to convict terrorism suspects. They say Mr. Obama has not made the case persuasively that there is a worrisome category of detainees who are too dangerous to release but who cannot be convicted. The reason to have a criminal justice system at all, they say, is to trust it to decide who is guilty and who is not.

This, my tutor argued, was the crux of the issue. It's hard to imagine a situation in which conviction of these prisoners - if they are truly dangerous - would be so difficult. This is precisely the question Matt Steinglass poses:

But here’s my main question: what exactly is so hard about getting terrorists convicted in American courts? Under US law, even “providing material aid” to any “terrorist organization” is a felony. I mean, come on — the US can try university professors for “material aid” to a “terrorist” organization for recruiting donations to a Palestinian political and charity group that was not, at the time, considered a terrorist organization. How hard is it, really, to convict someone picked up “on the battlefield” in Afghanistan of having “provided material support” to the Taliban? This is US Code Title 18, Part I, Chapter 113B:

§ 2339B. Providing material support or resources to designated foreign terrorist organizations

(1) Unlawful conduct.— Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. 

Now, I think this law is overbroad. (Here’s Georgetown constitutional law professor David Cole detailing the reasons he thinks it’s unconstitutional. Cole: “President Clinton used IEEPA to label a U.S. citizen a ’specially designated terrorist’ without hearing, notice, or trial, and then to subject him to a kind of internal banishment, in which it is a crime for anyone else in the United States to provide him with anything of value.” And so on.) 

But it’s on the books. And are you seriously telling me that the Bush Administration’s torture regime has so thoroughly bolloxed the entirety of the evidence regarding detainees at Gitmo that we can no longer even prove they were doing anything to support any group on the State Department’s list of terrorist organizations? Any such group whose actions have resulted in “the death of any person”? If we can’t prove that about these guys, what are they doing in prison?

A fair question. President Obama, my tutor noted, gave the speech in the National Archives, which houses the Declaration of Independence, the Constitution, and the Bill of Rights. He referred repeatedly to "the rule of law" in his speech. But the rule of law means something - specifically, it means that there are certain things the government can't do, even if the situation seems to require it. If the President feels he needs to take extraordinary action beyond the law to protect America, that's one thing - but he shouldn't refer to his actions as being governed by the rule of law, and no legal tradition would recognize it that way. As my tutor put it, it's the difference between the rule of law and the rule of men.

It's not clear, of course, whether the president will take such extraordinary steps that test the limits of the Constitution. The details of his detention program are not clear yet, and the fight over the use of courts is far from over. I do have a fundamental faith in him to abide by the law, and I think he has shown a deep reverence for the Constitution which will prove crucial as he shapes America's terror policy after the closure of Guantanamo. 

Benjamin Wittes of the Brookings Institution, who was quoted in the NYT article, offers useful perspective on the complications of this issue:

For starters, I believe that quite apart from questions of presidential power, there is ample space under extant constitutional law for preventive detention in the terrorism context--just as there are preventive detention authorities under a variety of other statutes [...] Suffice it to say that American law tolerates preventive detention in a variety of contexts if the danger the individual poses is great enough and the proceeses for assessing that danger are adequate.

This issue, of course, is far from settled, but it's an important debate that will surely continue. He adds:

I do not believe the President has any power to act beyond the powers the Constitution grants him. Presidents, of course, have occasionally done so in good-faith efforts to defend the nation (and the Constitution). But I do not argue for the legality of such actions, however necessary under the circumstances that gave rise to them they might have been.

The problem posed to us by the rule of law is that it clearly limits our ability to do things we believe are necessary. I look forward to following the debate about the constitutionality of the president's new antiterror policies. I have faith that the debate will be carried out - as it has sadly not been in the past - with candor, intelligent and reasoned arguments instead of fearmongering, and with deference to American legal traditions. The problem with the debate over the Bush administration's antiterror policies wasn't that it wasn't worth having. It was that they approached the debate with obvious disdain for anyone who disagreed with them in good faith, and more importantly, for the law. They saw it as a hurdle to be jumped, rather than as a source of wisdom and a guide for their actions. Dick Cheney even said last week, "In my long experience in Washington, few matters have inspired so much contrived indignation and phony moralizing as the interrogation methods applied to a few captured terrorists." I'm sure he would say the same thing about the debate over detention policy, but that's because he never understood the importance of the issues at stake. Fortunately, we now have someone in charge who does.  

President Obama's Speech at the Archives

This was, quite simply, a hell of a speech.  On a purely explanatory level, it gave a pretty good overview of the centrality of our legal documents and traditions to the current debate over Guantanamo/torture/military tribunals, which subtly rebutted the argument that we are dealing with a threat that requires an extralegal response. 

But the speech really got going when President Obama started specifically responding to his critics - especially when he referenced the recent antics of Dick Cheney. This is the relevant passage:

And we will be ill-served by some of the fear-mongering that emerges whenever we discuss this issue. Listening to the recent debate, I've heard words that are calculated to scare people rather than educate them; words that have more to do with politics than protecting our country.

The transcript here doesn't really convey the force of these sentences. The tone of his voice and the look on his face made his frustration clear. The speech was packed with this kind of fiery political language: later on, referring to the disgusting cries of NIMBY from Congress about Guantanamo detainees, he said, "I am not the only person in this city who swore an oath to uphold the Constitution." Great stuff.

President Obama and DADT

Andrew Sullivan wrote a dismayed post yesterday bemoaning the President's slow action on gay rights issues. Mickey Kaus, naturally, rejoiced, and Instapundit joined in on the fun. I think Sullivan's jumped the gun a little one this one, and of course Kaus and Instapundit are wrong too (shock!), but the question remains: why hasn't the President moved more quickly on some of the low-hanging fruit of gay rights issues, particularly Don't Ask, Don't Tell? 

You probably noticed recently when the Obama administration fired its first gay linguist because of DADT, and maybe you even saw the note the President wrote to Sandy Tsao, a second lieutenant who was discharged. In the note, Obama repeats his commitment to change the policy (a commitment which enjoys wide public support) - but when? 

I think, unfortunately, the answer is "not too soon." We're bearing down on what will be an intense summer for the Obama administration - the President recently pledged to have a national health care bill passed by the end of July, just around the same time when Congress will be holding confirmation hearings for Justice Souter's replacement. It is, to put it lightly, an important few months. Along with the stimulus package, these two battles are going to be the most important and consequential of the President's first year in office, and he'll need to spend a fair portion of his political capital (and employ those famous communication skills) in order to make things go smoothly. 

The crucial person here, as far as I can tell, is Sen. Jeff Sessions, the Alabama Republican who became the ranking minority member of the Senate Judiciary Committee when Arlen Specter switched parties. Sessions passed over Sen. Chuck Grassley, who has more seniority but is currently the ranking minority member of the Finance Committee. The two of them made a deal for Sessions to give up his spot on Judiciary in 2011 so he can have Sen. Gregg's post on the Commerce Committee when Gregg retires. When this happens, Grassley would give up his seniority on Finance to become the ranking minority member on Judiciary. Why does all this inside-baseball dealing matter? 

Because Sessions is going to have a lot of power overseeing President Obama's SCOTUS nomination, and he's not exactly friendly to gay rights. His ascendancy to the top of Judiciary has the right excited, as reported in The Hill:

The move is likely to please conservative organizations around Washington who are gearing up for a fight over the eventual nominee to replace retiring Supreme Court Justice David Souter. The departure of Specter, who had long been one of the leading GOP voices on judicial appointees, had robbed the Republican conference of an obvious spokesman.

Conservative groups, who have already held conference calls to begin organizing a response to President Obama's eventual nominee, were wary of putting Grassley atop the Judiciary Committee if a fight were to break out. The organizations viewed Sessions as the better spokesman, and more likely to lead the Republican charge in questioning the nominee.

That's it - the right is gearing up for a fight on the next Supreme Court nominee, and Sessions, as the ranking minority member on Judiciary, is a powerful guy all of a sudden. Sessions is on the record against repealing DADT, so the Obama administration isn't eager to pick a fight with him when there are big issues in the balance. It's just a theory of mine, but I bet we'll see action on repealing DADT in the fall, when the dust has settled on SCOTUS nominees and health care reform. 

All Politics

From Jonathan Chait, a damning example of Fred Barnes' indifference to problems that aren't political hay for the GOP. (Not that you should be surprised or anything.)

Media Alert (Ha!)

Tomorrow (May 5) I'm going to be on Oxide (Oxford University Radio) as a guest panelist on "Your Manifesto," discussing American politics and current events. The show starts at 12 PM local time (7 AM EST). The website is here - just click the "listen live" button.

Quote of the Day

"And, for all the politicians and pundits who complain that Obama is attempting too much at once, many of us like the breadth of his ambition. Doing too much at the same time, even at the risk of failure, is a core American trait that built the nation. It's as American as Benjamin Franklin, "Moby-Dick," the New Deal and a double cheeseburger with all the toppings." - Frank Rich.

Professor Obama

Thanks to this morning's NYT, a link to then-Professor Obama talking on Chicago Public Radio about civil rights, the Founders, and the Supreme Court. It's really interesting to hear Obama holding forth on an issue that wouldn't come up in a political discussion (this is a little more history than politics), and he speaks with the kind of ease and frankness that you hear from people who aren't running for (or serving in) high office. 

We Tortured, Part III: False Equivalencies and "Vengeance"

This false equivalency makes me crazy. John P. Avlon on President Obama's first 100 days:

On the ugly front, President Obama’s attempts at post-partisanship have come under fire from the left as well as the right. But for every Democrat who’s counseled a blood-sport approach to the majority, bipartisanship be damned, conservative activists seem to have made a strategic decision to double down on hyperpartisanship armed with hysterical accusations about our nation being on the road to tyranny. This is unhelpful and intellectually dishonest—and it’s out of touch with the desire of most Americans to move toward a common ground, problem-solving approach to governance. The temptation of some liberal activists to push for torture trials or a truth commission only offers the mirror image of this divisive, destructive approach to American politics.

I don't know how someone whose opinions are apparently worth publishing on the Daily Beast (or anywhere, for that matter) could reach such a manifestly stupid conclusion. Baselessly accusing the president of "tyranny" is simply not the same as accusing the last administration of breaking the law, which the evidence overwhelmingly suggests is just the case. David Broder's disgusting Washington Post column from last week made the same cringeworthy argument:

But now Obama is being lobbied by politicians and voters who want something more -- the humiliation and/or punishment of those responsible for the policies of the past. They are looking for individual scalps -- or, at least, careers and reputations.

Their argument is that without identifying and punishing the perpetrators, there can be no accountability -- and therefore no deterrent lesson for future administrations. It is a plausible-sounding rationale, but it cloaks an unworthy desire for vengeance. Obama has opposed even the blandest form of investigation, a so-called truth commission, and has shown himself willing to confront this kind of populist anger.

[...]

That way, inevitably, lies endless political warfare. It would set the precedent for turning all future policy disagreements into political or criminal vendettas. That way lies untold bitterness -- and injustice.

I don't even know where to begin with this disaster. Immediately offensive is the condescending tone and the assumption that David Broder can read the minds of those calling for investigations - they say they want accountability, but really, they're just all hyperpartisans.

But more importantly: there is overwhelming evidence to show that Bybee, Yoo, Addington, and others in the administration defied clear legal precedent when they drafted these memos (see, in addition to the cases I have already cited, the 1983 prosecution of Texas police for waterboarding a suspect by the Reagan Justice Department), and yet somehow we are to let them walk away? There is strong reason to believe they broke federal and international law. When the actions of the previous administration were illegal, it is appropriate to investigate! If we don't investigate this, what offense committed by an adminstration could we ever investigate? How could this be any more obvious? And why are Broder and Avlon attacking the people who are trying to uphold the law, rather than those who are being apologists for torture?

As Daniel Larison said recently, I'm beginning to think we don't even live in the same moral universe. It's unbelievable. (And he's worth quoting at length.)

Something else that has kept me from writing much on this recently is the profoundly dispiriting realization (really, it is just a reminder) that it is torture and aggressive war that today’s mainstream right will go to the wall to defend, while any and every other view can be negotiated, debated, compromised or abandoned. I have started doubting whether people who are openly pro-torture or engaged in the sophistry of Manzi’s post are part of the same moral universe as I am, and I have wondered whether there is even a point in contesting such torture apologia as if they were reasonable arguments deserving of real consideration.

It's horribly frightening to see how quickly we're willing to abandon the things that make our society worth protecting.

We Tortured, Part II: Looking Backward

I'm still traveling, so I haven't had regular access to the news - this has made following the discussion about torture a little more difficult. I think, though, that I can identify the main strands of thought in the public discussion. 

The first part of this discussion concerns the immediate issue raised by the release of the torture memos: were crimes committed, and if so, will anyone be held responsible? President Obama specifically ruled out legal proceedings against the agents involved in the interrogations when he ordered the memos released, but questions remain about the authors and architects of the policy. Perhaps the most controversial of the recently-released memos is one that is dated August 1, 2002. In was signed by Jay Bybee, who was at the time Assistant Attorney General at the Office of Legal Counsel. It concerns the interrogation techniques used against Abu Zubaydah, a low-ranking al Qaeda operative.

On the same day, another memo had been authored by Bybee and John Yoo, who was Bybee's deputy at the OLC. Yoo was apparently aided by David Addington, who was legal counsel to Vice President Cheney. That memo sought to define torture in the context of U.S. Code and the International Convention Against Torture. The International Convention Against Torture defines torture "as any act by which intense suffering, whether physical or mental, is intentionally inflicted." That convention was made federal law by the 1995 Torture Implementation Act. Bybee, Yoo, and Addington all had a hand in this memo - although most reports suggest it was primarily written by Yoo - and it argues, essentially, that interrogation techniques constitute torture only if they cause pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." This, apparently, was the lawyers' interpretation of the Convention's language about "intense suffering," at least on a physical level. As for mental suffering, Yoo et. al raised the bar again, arguing that threats of imminent death, threats of intense (torture-like) pain, use of drugs, "permanent" personality alteration, or threatening to do any of the above to a third party were the only acts barred by the prohibition of "intense mental suffering." Their conclusion reflected this expansive attitude toward the law: "We conclude that the statute, taken as a whole, makes plain that it prohibits only extreme acts."

The first memo I mentioned, which was also dated August 1, 2002 and was written by Bybee, applies this line of reasoning to the interrogation of Abu Zubaydah. This memo was one of the memos released by the Department of Justice on April 16, 2009. It considers the various methods used against the prisoner, including "walling," stress positions, sleep deprivation, and waterboarding. The first technique seems to have been invented by the United States, but the second was perfected by Communist China. The fourth technique, waterboarding, was used during the Spanish Inquistion, by the Gestapo during World War II, and by the Khmer Rouge in Cambodia - in fact, it is solemnly remembered in a torture museum in Cambodia! More importantly, though, it was used by Japanese soldiers against American prisoners in World War II, including against Chase Nielsen, one of the pilots who participated in the Doolittle raid. At the Tokyo War Crimes Trials following the war's end, the United States convicted Japanese officials of torture. Their main charge of torture: waterboarding of captives. 

The Bybee memo considers waterboarding, but concludes that it does not meet the level of pain and suffering necessary to be considered torture. Bybee states that waterboarding is not a deadly technique, and it is unlikely to have long-term psychological effects on the victim. On page 15 of his memo, Bybee writes, "We have previously concluded that prolonged mental harm is mental harm of some lasting duration, e.g., mental harm lasting months or years [...] (But) you do not anticipate that any prolonged mental harm would result from the use of the waterboard. Indeed, you have advised us that the relief is almost immediate when the cloth is removed from the nose and mouth."

This claim, however, is highly questionable, as Jane Mayer revealed in the New Yorker:

Dr. Allen Keller, the director of the Bellevue/N.Y.U. Program for Survivors of Torture, told me that he had treated a number of people who had been subjected to such forms of near-asphyxiation, and he argued that it was indeed torture. Some victims were still traumatized years later, he said. One patient couldn’t take showers, and panicked when it rained. “The fear of being killed is a terrifying experience,” he said.

Thus we see that there is considerable reason, both in the form of legal precedent and expert opinion, to believe that waterboarding meets the level of pain and suffering necessary to be considered torture. But Bybee mentioned neither of these things in his memo. Even the well-known case of America's conviction of Japanese officials for torture - based on the specific charge of waterboarding - receives no mention whatsoever. The legal opinion offered is so poorly argued that it is hard to believe Bybee could have written it for any other purpose than to provide legal justification for acts that he knew to be illegal (or, at the very least, highly suspect). The same must be said of the the other two important documents from August 1, 2002: the memo from Yoo et. al, discussed above, and another memo written from John Yoo to then-White House Counsel Alberto Gonzales, outlining the president's powers with regard to interrogation techniques. That memo, written by Yoo and approved by Bybee, has been widely scorned for asserting, among other things, that anti-torture laws "may be unconstitutional if applied to interrogations undertaken of enemy combatants pursuant to the President's Commander-in-Chief powers." Harold Koh, Dean of Yale Law School and President Obama's nominee for Legal Adviser to the Department of State, called it "perhaps the most clearly erroneous legal opinion I have ever read."

So, to sum things up: on August 1, 2002, three documents written by John Yoo, David Addington, and Jay Bybee were approved by Bybee and became the centerpiece of the Bush Administration's interrogation policies. They were:

- The "expansive view" memo by Bybee, Yoo, and Addington, "defining" what level of pain and suffering constitutes torture and would be prohibited by law;

- Bybee's just-released memo referring specifically to the interrogation of Abu Zubaydah, and concluding, among other things, that waterboarding is not torture; and

- The memo, written primarily by John Yoo, to Alberto Gonzales, arguing that techniques involved in U.S. interrogations do not meet the criteria of torture - and, more broadly, that laws prohibiting torture may violate the president's constitutionally-ensured powers to make war against America's enemies. 

These memos have been roundly criticized for their unprecented interpretation of executive power and their shockingly poor legal reasoning. They ignored American legal precedent, circumvented international laws and norms, and justified the use of techniques that have been called "torture" by the current President of the United States, the current United States Attorney General, the Minority Leader of the United States House of Representatives, the Bush administration's convening authority on the Guantanamo commissions, the International Red Cross, and the King of Jordan, among others. So, what are their fates?

John Yoo is professor of law at the University of California, Berkeley.

Jay Bybee holds a lifetime appointment as a federal judge on the 9th Circuit Court of Appeals.

David Addington is apparently still looking for work. 

Bybee and Yoo are currently being investigated by the Office of Professional Responsibility at the Department of Justice, but no criminal charges are pending. Why not? Peggy Noonan, for one, thinks it's just time to move on:

This attitude is disturbingly widespread in Washington, and I hope it isn't shared by President Obama, who remarked, somewhat obliquely, that he prefers to look forward rather than backward. I was relieved when he discussed the possibility of a bipartisan Truth Commission, because it's the most likely way we'll make any progress on these issues. But why does the idea of prosecutions make everyone so nervous?

During Eric Holder's confirmation hearings, he was asked about these memos and noted that the "criminalization of policy differences" was a worrying trend in American politics. It dates back to Watergate, but it continues on through Iran-Contra, Whitewater/Monica Lewinsky, and now to torture. There was - and remains, I think - an attitude that Democrats were happy to use investigations to achieve what they had failed to do in elections: beat Richard Nixon. Of course that's a ridiculous notion, because Nixon broke the law and deserved everything he got, but it nonetheless was the opinion of many conservatives at the time.

Imagine, then, the reaction of the right during Iran-Contra. Again, the Democrats failed to beat a Republican president in his re-election bid, so they decided to use Congressional investigations to derail his second term. Let me repeat: this is a ridiculous attitude; Reagan administration officials broke the law and should have been held accountable. But in the highly-charged partisan politics of Washington, the use of Congressional investigations is seen by some as just another weapon in the political arsenal. The attitude of Oliver North at the Iran-Contra hearings is similar to the right's modern approach to critics of torture: "Well, weak, glasses-wearing, Ivy-League, East-Coast, New-York-Times-Reading liberal wusses might not like it, but someone has to be tough and do what's necessary for America, even if it means bending the rules a little bit here and there. Anyone with a brain and a set of a cajones understands that." 

By the time we got to the 1990s, then, Republicans had discovered what they thought was a political weapon (even if it what they saw as political theater had been the legitimate investigation of crimes). Eager to wield this new weapon, they spent an entire presidency and millions of dollars investigating President Clinton. Whitewater never turned up any illegal actions, but it did lead to Monica Lewinsky and President Clinton's eventual perjury. That was good enough for the Republicans, but they had been overzealous: because President Clinton's actions were so minor compared to the crimes of previous presidents (nothing on a Watergate or Iran-Contra scale), and because the Republicans had so aggressively attacked him for something that most people didn't consider to be that big of a deal in the grand scheme of things, Clinton's approval ratings went up and the Republicans' numbers tanked. Clinton left office with an approval rating in the mid 60s - people thought he was a good president, even though they looked down on his character.

This trend did not continue into the next two-term presidency because the Democrats didn't control Congress until 2006. By then, President Bush was a lame duck, and despite hearings, nothing on the scale of the previous investigations took place. It just wasn't worth it - Congressional Democrats seemed pretty happy to let the president's second term fizzle out. If investigations into possible criminality began now, wouldn't it smack of political retribution?

Probably. There's a significant principle at stake here: presidents should be given the benefit of the doubt, particularly in uncertain and dangerous times, to do what they think is best for the American people. It would be very dangerous to undermine that principle, and the effecton subsequent administrations could be severe.

But there is a more important principle that will suffer if we don't act: the principle that no one is above the law. It is becoming increasingly obvious that the Bush administration did not act in good faith with the letter or spirit of the law; that its justifications for illegal acts were simply cover for premeditated decisions to torture, not genuine attempts to determine what was allowed and prohibited; that it engaged in significant, widespread violations of federal and international law; and that these crimes were approved - in fact, they were directed - by officials at the highest levels of the executive branch, including the President, Vice President, and Secretaries of State and Defense. Some of these officials may not have known that what they were ordering was illegal; if they trusted the advice of their lawyers, they would have been assured that it was not. But their lawyers - Bybee, Yoo, and Addington, and perhaps others - were almost certainly attempting to circumvent the law. It would be awkward, embarrassing, and painful to hold them fully accountable for their actions. But ignoring or excusing their actions would do vastly more harm to our country.

If we are not a nation of laws, what are we?

We Tortured

The United States tortured its prisoners, and President Bush was either unfathomably ignorant of the truth or he was lying when he said ''this government does not torture people'' (bet on the latter). You can read the chilling memos justifying the practices here.

Sullivan puts it succinctly:

According to these documents, almost nothing that was done at Abu Ghraib was outside the limits agreed to by Bush - and much of what was done at Abu Ghraib was mild in comparison. So when the president acted "shocked" at what we all saw, and said it was not America, he was also authorizing far worse in secret - and systematizing it long after Abu Ghraib was over. He was either therefore a fantastic liar on one of the gravest matters imaginable or so psychologically compartmentalized and prone to rigid denial of reality and so unversed in history, law and morality that he had no reason being president.

References to ''1984'' are quite popular right now (for obvious reasons), but one passage in the Bybee memo is worth noting again for its eerie similarity to the nightmarish torture scene near the end of the novel (again, hat-tip to Sully):

''You would like to place Zubaydah in a cramped confinement box with an insect. You have informed us that he appears to have a fear of insects. In particular, you would like to tell Zubaydah that you intend to place a stinging insect into the box with him," - Jay Bybee, judge of the United States Court of Appeals for the Ninth Circuit.

"‘The worst thing in the world,’ said O’Brien, ‘varies from individual to individual. It may be burial alive, or death by fire, or by drowning, or by impalement, or fifty other deaths. There are cases where it is some quite trivial thing, not even fatal,’" - George Orwell, Nineteen Eighty Four.

More on this when I've returned to the UK and am no longer paying for internet. For now: to the airport.