The Tortured Reasoning of George W. Bush

Former President George W. Bush was always the kind of guy who preferred taking the short money over the long game. Any study of his business career shows that pretty clearly. He'd start a company, drive it into the ground and sell it off for a tidy profit. Yes, he was wildly successful as a part owner of the Texas Rangers, but that isn't hard to do when you can have the government build you an enormous stadium.

Mr. Bush's preference for taking the short money is evident in the release of his new memoir, Decision Points, which was released yesterday. The book came out not quite two years after leaving office, well before the passions of his presidency have cooled and a more objective view of events can be taken. President Hoover, on the other hand, waited twenty years after leaving office to publish The Memoirs of Herbert Hoover: The Cabinet and the Presidency, 1920-1933. Richard Nixon would have been well advised to wait several more years to write his memoirs, but he was in desperate financial need in the wake of Watergate and his resignation.

On the other hand, President Bush has a more to answer for than your average president, so he may as well start doing it now. As I actually begin reading the book, I might post occasionally on it, although I've already written a great deal about his presidency over the years. But let's start with the biggest attention-getter of this week: Bush's exchange with NBC's Matt Lauer on the legality of waterboarding.

Lauer: Why is waterboarding legal, in your opinion?

Bush: Because the lawyer said it was legal. He said it did not fall within the anti-torture act. I’m not a lawyer. But you gotta trust the judgment of the people around you, and I do.

One thing that we now know about the Bush administration was its willingness to look for the opinions it want to justify what it had already decided to do. The evidence of this was going to John Yoo, a deputy in the Justice Department's Office of Legal Counsel for the torture opinions without the knowledge of his direct superiors, or even the Attorney General. Instead of going through John Ashcroft, they were directed to then-White House Counsel Alberto Gonzales. Why would you do that if you were looking for an unbiased opinion?

It's also notable that the so-called "Torture Memos" were immediately repudiated by the next head of Justice's OLC, Jack Goldsmith, as soon as he assumed the position because of their faulty legal reasoning. Yoo was also well-known as a proponent of the Unitary Executive Theory, a philosophy that is shared by former Vice President Dick Cheney and his White House staff, most importantly his counsel, David Addington.

I'm not going to address the utility or morality of torture - although both are highly debatable - just whether it's legal. And that's easy - it's not. Waterboarding is also torture. A Chicago police officer was convicted of torture for waterboarding a suspect in the early 1980s. The United States has also prosecuted, through international tribunals, foreign military personnel for using the tactic in the past. The most important precedent is from 1902, when President Theodore Roosevelt ordered the court-martial of General Jacob "Howling Jack" Smith for using what was then known as "the water cure" in the Philippines during the anti-American insurgency that followed the Spanish-American War.

If waterboarding is legal, why then was the task given to the CIA, which isn't as capable of prisoner interrogations as are the military and the FBI, if not because it likely violated several sections of the United States Code and the Uniform Code of Military Justice, both of which were passed by Congress and signed by the president? The only real answer is that it isn't legal, but holding the CIA accountable in American courts has been historically difficult to the point of impossibility.

The designation of "unlawful combatants" under international law is also too cute by half, particularly when the early days of the war in Afghanistan was primarily conducted by the CIA and Special Forces, neither of whom wore the uniforms which are necessarily to qualify as a "lawful combatant." What ended up happening is that one group of American unlawful combatants took foreign unlawful combatants well away from the battlefield - Poland and Thailand, more specifically - and tortured them.

You would be hard-pressed to find any non-American expert in international law who would agree to this kind of legal reasoning. John Yoo and Jay Bybee seemed to anticipate that, so they merely argued that treaties such as the Convention on Torture didn't apply under these circumstances, which is nonsense.

I'm sure that any number of Bush administration officials will learn just how wrong they were if any of them are brave enough to attempt foreign travel in the foreseeable future. As much as I don't like the principle of universal jurisdiction and the Pinochet precedent - and spoke out against both at the time - they seem to be accepted under international law. More importantly, the United States recognizes it, as evidenced by the prosecution of Chuckie Taylor for, among other things, torture in Liberia.

At this late date, President Bush must know how the legal opinions he touts were obtained and he knows that they were later repudiated by his own Justice Department. Instead of admitting to being mislead by his own lawyers, Bush remains defiant in the face of the facts and almost proud of having committed what most people know to be crimes under both American and international law. Even Nixon admitted that he had made "mistakes" during Watergate. Bush won't even go that far.

Again, this isn't really even about waterboarding or torture as much as it is a far more important principle: That the law means exactly what it says. If the United States wants to drown folks, there really isn't much that anybody can do to stop them. But they should at least follow their own constitutional order and submit a bill to Congress changing the law and withdrawing from the treaties it has signed.

This kind of tortured reasoning on laws that are fairly straightforward and easy to understand should be beneath any president.