The Bush administration’s treatment of terror detainees faced renewed assault earlier this month. “The government does not torture people,” the president had just reiterated. “You know, we stick to US law and our international obligations,” he had said. Interrogation methods had been “fully disclosed to appropriate members of Congress”. John Rockefeller, head of the Senate Intelligence Committee, voiced his exasperation. He was “tired of these games”, he said. “The reality is, the administration refused to disclose the programme to the full committee for five years and they have refused to turn over key legal documents since day one ... I find it unfathomable that the committee ...would be provided more information by The New York Times than by the Department of Justice.”
The prevailing view, which the White House has done nothing to rebut, is that the administration has striven in secret to overthrow the law and all constitutional restraints in its prosecution of the war on terror. Make that “its” war on terror, because this very idea commands dwindling support – dismissed as a feint to invoke extraordinary powers and sideline Congress and the courts.
This is a lawless administration, goes the argument. Michael Ratner of the Centre for Constitutional Rights in his review of The Torture Papers: The Road to Abu Ghraib edited by Karen Greenberg and Joshua Dratel, called them perhaps “the most important and damning set of documents exposing US government lawlessness ever published”. This fat volume included the administration’s early legal opinions and other painstakingly gathered material on domestic and international law on the treatment of prisoners. Yet “lawless” is incorrect. This whole line of attack on the Bush presidency is misconceived. This administration has been as obsessed with the law, and with staying inside it, as its critics – and that is why its security policies have been so bad. It has worried so much about what is legal that it has had no time or intellectual resources left over to worry about what is wise or feasible or moral. Though it matters less because they are not yet in power, you could say much the same of many of its critics.
For an account of this syndrome read the just-published memoir by Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration. For a bit less than a year in late 2003 and 2004, Mr Goldsmith was an assistant attorney- general and head of the Office of Legal Counsel, the part of the Justice Department that tells the president what he legally can and cannot do. He often quarrelled with other administration officials, notably Alberto Gonzales (then White House counsel) and David Addington (counsel to Dick Cheney, vice-president) and left the administration with much ill-feeling all round. The Terror Presidency is the most gripping and revealing book about the pathology of this White House I have read. I started it one evening and stayed up all night to finish it.
Reviews of the book have called it a devastating critique of the White House – which it is, though not in the way they imply. Mr Goldsmith is a conservative, sympathetic to the administration. He regards the “war on terror” as an apt framing of the issue, insofar as it signals the gravity of the terrorist threat facing the US and the patent inadequacy of the ordinary tools of criminal justice in confronting it. He emphasises that the administration’s hardliners acted in good faith, convinced that the country was in mortal danger. They refused to accept that the constitution could be construed in such a way that it would cripple the response. They worried endlessly about making their actions conform to the constitution – not for public-relations reasons (of which they were contemptuous, the book shows) but because the constitution mattered to them.
It is just as hard for the administration’s legal warriors as it is for their opponents outside to accept that a measure might be conformable to constitutional law and precedent and still be wrong. If all you care about is the law, and you put lawyers in charge of policy, then debate on detainees will inescapably revolve around the question of what “torture” means, or what “pain” means, or what the Geneva Conventions mean by “inhuman treatment”. In a nation of laws, those grisly questions do have to be examined, but not to the exclusion of thinking about the larger harm that is done to American interests by signalling disdain for the rights of non-citizens, or by abusing terror detainees in ways that the country would regard as an unconscionable outrage if applied to Americans.
Abraham Lincoln and Franklin Roosevelt both trampled on the constitution when they believed national security required it, Mr Goldsmith points out. The difference is, they took Congress and public opinion – and hence the courts as well – along with them. In appealing for that support, they were obliged to explain themselves and make their case. This forced them to worry about what was wise and not just what was legal or illegal.
The Bush administration has spared itself that inconvenience. It was not lawless, it was brainless. Its treatment of detainees might be lawful, but it is immoral. The White House’s autistic refusal to consult or listen to others, its paranoid insistence that it knows best and must be left alone to plot in secret, has divided and weakened the country the president pledged to defend.