The Day the Constitution Died

AUSTIN, Texas -- When, in the future, you find yourself wondering, "Whatever happened to the Constitution?" you will want to go back and look at June 8, 2004. That was the day the attorney general of the United States -- a.k.a. "the nation's top law enforcement officer" -- refused to provide the Senate Judiciary Committee with his department's memos concerning torture.

In order to justify torture, these memos declare that the president is bound by neither U.S. law nor international treaties. We have put ourselves on the same moral level as Saddam Hussein, the only difference being quantity. Quite literally, the president may as well wear a crown -- forget that "no man is above the law" jazz. We used to talk about "the imperial presidency" under Nixon, but this is the real thing.

The Pentagon's legal staff concurred in this incredible conclusion. In a report printed by The Wall Street Journal, "Bush administration lawyers contended last year that the president wasn't bound by laws prohibiting torture and that government agents who might torture prisoners at his direction couldn't be prosecuted by the Justice Department. ...

"The report outlined U.S. laws and international treaties forbidding torture, and why those restrictions might be overcome by national security considerations or legal technicalities."

The report was compiled by a group appointed by Department of Defense General Counsel William J. Haynes II, who has since been nominated by Bush for the federal appellate bench. "Air Force General Counsel Mary Walker headed the group, which comprised top civilian and uniformed lawyers from each military branch and consulted with the Justice Department, the Joint Chiefs of Staff, the Defense Intelligence Agency and other intelligence agencies. It isn't known if President Bush has ever seen the report."

When members of the Senate Judiciary Committee questioned Ashcroft about his department's input, he simply refused to provide the memos, without offering any legal rationale. He said President Bush had "made no order that would require or direct the violation" of laws or treaties. His explanation was that the United States is at war. "You know I condemn torture," he told Sen. Joe Biden. "I don't think it's productive, let alone justified."

But another memo written by former Assistant Attorney General Jay S. Bybee, now a federal appeals court judge in California, establishes a basis for the use of torture for senior Al Qaeda operatives in custody of the CIA. I am not one to leap to conclusions, but it seems quite clear how whatever perverted standards allowed at Guantanamo Bay jumped across the water to Abu Ghraib prison. Maj. Gen. Geoffrey D. Miller, commander at Gitmo, was dispatched last August to Abu Ghraib to give advice about how to get information out of prisoners. "Miller's recommendations prompted a shift in the interrogation and detention procedures there. Military intelligence officers were given greater authority in the prison, and military police guards were asked to help gather information about the detainees," according to The New York Times.

Among the legal memos that circulated within the administration in 2002, one is by White House counsel Alberto Gonzalez, famously declaring the Geneva Convention "quaint," and another from the CIA asked for an explicit understanding that the administration's public pledge to abide by the spirit of the Geneva Convention did not apply to its operatives. The only department consistently opposing these legal "arguments" was State. In April 2002, Secretary Rumsfeld sent a memo to Gen. James T. Hill outlining 24 permitted interrogation techniques, four of which were considered so stressful as to require Rumsfeld's explicit approval before they were used.