By William Pfaff 3/06/09

The documents currently being released by the Justice Department that demonstrate the Bush administration’s view of the president’s constitutional power in a “state of war” tell us things we suspected but didn’t want to know.

The first seven of these official memorandums issued last week dealt with claimed presidential powers to unilaterally abrogate international treaties; suspend constitutional guarantees of freedom of speech and press; and order warrant-less searches, wiretaps and seizures of documents and indefinite imprisonment inside the U.S. without trial or criminal charges. The memorandums claimed that Congress has no overriding authority in these matters.

The authors of all but one of these documents were John Yoo and Jay Bybee (both then of the Justice Department but now, respectively, a member of the University of California at Berkeley Law School faculty and a federal judge on the Ninth Circuit Court of Appeals). They were also the authors early in the Bush administration of two special memorandums defining torture much more narrowly than in the United States code of military justice or U.S. civil law.

They redefined torture to permit what ordinarily is illegal in U.S. military and civil law under the so-called Federal Maiming Statute. This law makes it a crime to disfigure faces and body parts with knives or razors, or to cause blindness, or cut out tongues, or perform other grotesque and gruesome tortures that this column will leave to the consciences of professor Yoo, Judge Bybee and the senior members of the Bush administration who wished to be advised on their exemption from such legal limits.

Professor Yoo’s view is that the president possesses unchecked authority “in a state of armed conflict.” At the time, this state of armed conflict consisted of a dozen or so stateless persons who had deliberately crashed aircraft into New York and Washington buildings. The two initial memos on torture were withdrawn when they became public.

The American use of torture has been public knowledge or surmise since very early in President Bush’s war on terror. Not many Americans seemed to take note or to protest at the time. There were individuals who protested; the American Civil Liberties Union was on the job, as were Amnesty International and other American nongovernmental organizations and citizens’ groups. They were mostly ignored. Questions were asked in Congress, but little ensued.

This was the amazing thing, really. Very few people among the American public seemed to care–except Fox television executives, who recognize a commercial opportunity when it hits them between the eyes.

Fox began a drama in which each program was devoted to the American president’s torturer doing whatever had to be done to thwart a new threat to the American republic. The hero would apply one of the tortures pronounced legally OK for Americans to use, until the terrorist, gasping or screaming, blurts out where the nuclear bomb has been planted.

This turned out to be one of the most popular programs on the air. It seems that President Bush himself watched. People in the torturing business joked that they got some good ideas from the program.

What if 65 years ago in Germany entertainment radio had broadcast a popular program in which SS and Gestapo officers tortured American OSS officers, or captured American or British airmen, to extract vital information from them at any cost? Adolf Hitler himself might have tuned in. He had decreed that Allied commandos in military uniform should be treated as terrorists rather than as soldiers.

The final thing I will say about this is that many or most of the documents now being issued on how President Bush might ignore the U.S. Constitution had to do with domestic surveillance and the (illegal) use of American military forces against the American public.

That probably would have begun in a small way. “Troublemakers” disappearing here and there. Protest groups rounded up and sent to camps. Possibly a day would have come when some conference of lawyers, or the United States Conference of Catholic Bishops, or Americans for Democratic Action, or the Cato Institute, or some political pressure group like the American Israel Public Affairs Committee, did something that seriously annoyed the White House.

If a battalion of military police took over the hall and the participants “disappeared,” it would certainly have made the newspapers, if the newspapers still reported such things. But considering the precedent of the American popular reaction to torture, what else would have happened? Possibly there would have been a popular new television program about the subversive forces at work in America, and how patriots should deal with them.

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