THE recent release of a Justice Department memo authorizing the use of torture is a disturbing look at the twisted legal reasoning of one administration lawyer who would let the President and those acting on his behalf circumvent the law.
In response to a Freedom of Information Act request from the American Civil Liberties Union, the Department of Defense declassified a document written in March, 2003, the month the United States invaded Iraq, by then-Deputy Assistant Attorney General John Yoo and sent to Pentagon General Counsel William Hayes.
The memo, which the Justice Department rescinded nine months later, said that anything short of "death, organ failure, or permanent damage" was not torture. The 81-page opinion also maintained that the President's war powers took precedence over the law against torture and that Congress cannot pass laws regulating the interrogations of enemy combatants.
Retired Air Force Gen. Richard Myers, who was chairman of the Joint Chiefs of Staff when the memo was written, said he never saw the document. He told the Washington Post that such a narrow definition of torture was "absolutely ludicrous" and that when it comes to U.S. treatment of war prisoners, "I worry most about reciprocity, how other countries will treat us."
The memo references another document, still classified, that Mr. Yoo cited while arguing that "our office recently concluded that the Fourth Amendment had no application to domestic military operations." The Fourth Amendment to the Constitution prohibits unreasonable searches and seizures.
The administration used that still-secret memo to justify warrantless wiretapping for six years, from October, 2001, until January, 2007, when the White House finally resumed seeking surveillance warrants from the Foreign Intelligence Surveillance Court. However, the wiretapping memo has not been formally withdrawn. The Justice Department said this month that the protection against military searches and seizures depends on "the particular context and circumstances of the search."
The greatest threats to civil liberties may not lie in the administration's legal opinions that Americans know about, such as the Yoo memo. To paraphrase former Defense Secretary Donald Rumsfeld, they may actually lie in "unknown unknowns," the vault of yet-to-be-released government documents that may be shredding the Constitution without our knowing it.
It's doubtful that the Bush Administration can ever restore public trust in how it handles civil liberties, but it has the obligation to release the 2001 wiretapping memo and all other confidential documents that may offer such legal guidance.
It's the only way Americans will know if their rights are being respected or trampled.