The orthodox conservative position at this point, it seems to me, is that waterboarding is not torture. Nor is having someone dangle from his shackled arms in a manner so painful as to prevent sleep for a period of days. What’s more, these non-torturous “harsh techniques” are highly effective at gathering intelligence. But if that’s true, and these are legal and effective means of securing reliable information, why are we doing so little of it?

After all, people doing organized crime investigations face a lot of challenges in terms of getting information from people. Maybe cops should do routine undercover drug buys, build a case against low level dealers, and then waterboard the guys they’ve arrested and move further up the food chain. Maybe waterboarding and “stress positions” should become routine treatment for battlefield detainees in Iraq and Afghanistan. Why not?

I keep thinking I'm going to wake from this awful dream in which law professors (and former deputy attorneys general) of the highest reputation do not make arguments like this (from the important article by Jane Mayer in this week's New Yorker called "Outsourcing Torture"):

In a recent phone interview, Yoo was soft-spoken and resolute. “Why is it so hard for people to understand that there is a category of behavior not covered by the legal system?”

What would that category of behavior be? Mass Murder? Torture? Genocide? Medical experimentation? Eviscerating babies with a bobby pin? No, those are all covered by criminal statutes and international law. So, it must be something worse than that, musn't it? It must be worse than Hitler. It must be something so bad that Satan could only conceive of it. We call it "terrorism."

I wonder when those in this country whose children were killed by a child molester like John Wayne Gacy or who were the victims of a brutal home invasion robbery or even a drunk driver might begin to wonder why the criminals who committed those crimes should should be allowed this "luxury" of due process when we can simply pluck terrorists off the street, inflict torture upon them and throw them in prison forever. That awful day on 9/11 was shocking, to be sure. But is it more shocking than Tim McVeigh or that woman who killed the pregnant woman and carved her baby out of her womb? An average person can be forgiven for wondering just why we must deal with warrants and grand juries and trials with our homegrown vicious killers when we don't have to deal with such niceties with terrorists. Just what is the principle that guides this decision?

I'm truly wondering when someone will ask that question. Because when someone finally does we will begin to answer Professor Yoo's startling question about whether there aren't some things that fall outside the legal system.

The answer is, of course there aren't. The reason, professor, is that the rules of due process were designed to ensure that the government cannot arbitrarily imprison innocent people. That principle is so basic and so clear cut that you wouldn't think that a law professor would have to even think about it.

Even that ole puritan Increase Mather (Cotton's daddy) spoke out on this after the Salem Witch trials saying, "It were better that 10 suspected witches should escape than one innocent person should be condemned." Please don't try to tell me that the Puritans in Massachusetts were any less assured that the Devil presented an existential threat than terrorism does today. These people lived in a stew of supernatural fear and they were able to work themselves out of hysteria enough to see that condemning innocent people was the worst evil of all.

As for torture, we can go all the way back to the English Bill of Rights in 1689 to find that civilization had evolved enough to outlaw cruel and unusual punishment. Certainly, if punishment that was cruel and unusual has been outlawed for more than 400 years, then cruel and unusual treatment of those who haven't even been found guilty of a crime cannot be considered legal in the 21st century. How does one become a first tier legal scholar and not see the implications of what we are doing?

In the "war on terrorism" we are operating under a system in which Joe Bob Bumpkin from the Arkansas National Guard and Rambo McClean of Blackwater Consulting are serving as detective, prosecutor and judge when they "capture" a so-called terrorist. They then render the "convict" to a facility outside of American jurisdiction where they "interrogate" this convict for information about his fellow criminals --- for years at a time. Then the convict might get a trial in a kangaroo court. We know, however, that even if found "innocent" they will likely not be released. Everyone agrees that these men are just too dangerous to be freed no matter what.

Unless, of course, an allied government like Britain puts the heat on and demands that their citizens be released, after which they are allowed to go home and are free to go back into society and live normally as before. Odd how that works isn't it? It would seem that we are making some mistakes, since these men have been released --- but we only know about it if a powerful ally demands it. Somehow, I don't think that's going to happen to the Afghans or any of the other citizens of middle eastern countries who, like us, don't really give a damn if innocent people are tortured and imprisoned forever.

And, some believe that we Americans have now sanctioned this entire immoral regime:

Yoo also argued that the Constitution granted the President plenary powers to override the U.N. Convention Against Torture when he is acting in the nation’s defense—a position that has drawn dissent from many scholars. As Yoo saw it, Congress doesn’t have the power to “tie the President’s hands in regard to torture as an interrogation technique.” He continued, “It’s the core of the Commander-in-Chief function. They can’t prevent the President from ordering torture.” If the President were to abuse his powers as Commander-in-Chief, Yoo said, the constitutional remedy was impeachment. He went on to suggest that President Bush’s victory in the 2004 election, along with the relatively mild challenge to Gonzales mounted by the Democrats in Congress, was “proof that the debate is over.” He said, “The issue is dying out. The public has had its referendum.”

So, it is the very core of the Commander In Chief function to be above the law. And Americans are assumed to have approved this by electing George W. Bush to a second term. That's what the president meant when he said, "We had an accountability moment, and that's called the 2004 elections."

[...]

We are disappearing people, rendering them to friendly governments that aren't afraid to put the electrode to genitals and threaten with dog rape. And we are building our own infrastructure of torture and extra legal imprisonment. It is a law of human nature that if you build it, they will come. This infrastructure will be expanded and bureaucratized. It's already happening. And when they decide, as Professor Yoo has already decided, that an election is a sanctioning of anything the President chooses to do in the War on Terror, it is only a matter of time before internal political enemies become a threat.

And then it will be us.