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Getting Away With TortureThe failures of the legal system for both the torturers and the tortured.

By Dahlia Lithwick
Posted Monday, April 28, 2008, at 10:41 AM ET

(Continued from page 1)

While it's arguable that Yoo was merely producing a theoretical, lawyerly opinion regarding the line between aggressive interrogation and abuse, the possibility is arising that—as Columbia Law School's Scott Horton suggested last week—"the Bush interrogation program was already being used before Yoo was asked to write an opinion. He may therefore have provided after-the-fact legal cover."

Yoo's bloodless legal analysis—he calls it "boilerplate"—may well have opened the floodgates to multiple instances of prisoner torture and even death. Yet virtually nobody suggests he should be subject to legal consequences. Indeed, even the notion that he be relieved of his teaching post at University of California-Berkeley's Boalt Hall has been dismissed as a threat to "academic freedom."

Yoo's possible contributions to the normalization of torture at Guantanamo and beyond almost pale in comparison with another story that was all but ignored this month, when ABC News revealed that top Bush administration officials, including Dick Cheney, Condoleezza Rice, John Ashcroft, George Tenet, Colin Powell, and Donald Rumsfeld met several times in the White House to discuss specific torture techniques to be used against al-Qaida suspects in U.S. custody. This group together signed off on sleep deprivation, slapping, pushing, and water-boarding, in a manner "so detailed … some of the interrogation sessions were almost choreographed, down to the number of times CIA agents could use a specific tactic." Days later, President George W. Bush confirmed to ABC that he'd "approved" of these tactics.

According to a forthcoming book by Phillippe Sands, it's just not very hard to connect the dots here: "The fingerprints of the most senior lawyers in the administration were all over the design and implementation of the abusive interrogation policies. [David] Addington, [Jay] Bybee, [Alberto] Gonzales, [Jim] Haynes, and [John] Yoo became, in effect, a torture team of lawyers, freeing the administration from the constraints of all international rules prohibiting abuse." Yet, despite the fact that senior members of the Bush administration may well have violated the War Crimes Act of 1996, the Geneva Conventions, and the Uniform Code of Military Justice, there is scant serious talk of any accountability there, much less future legal prosecution. Yes, the Justice Department's Office of Professional Responsibility is investigating whether agency attorneys provided the White House and the CIA with faulty legal advice on interrogation. But as my colleague Emily Bazelon has observed, that's a little bit like setting the local meter maid at them.

Barack Obama recently pledged that if elected, he'd have his Justice Department immediately review whether crimes had been committed in the Bush White House. But virtually nobody truly believes that high-level architects of the American torture policy will face domestic criminal prosecution, even if domestic laws were broken. As Yale Law School's Jack Balkin pointed out, the political costs are too high: "One can imagine the screaming of countless pundits arguing that the Democrats were trying to criminalize political disagreements about foreign policy."

High-ranking administration officials and enemy combatants have little in common, and their respective acts of lawbreaking are not morally comparable. Still, their legal situations are weirdly parallel and show how the rule of law can fracture under the strain of politics. Those alleged lawbreakers at Guantanamo will never be acquitted for purely political—as opposed to legal—reasons. The alleged lawbreakers in the Bush administration will never be held to account on precisely the same grounds.

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Dahlia Lithwick is a Slate senior editor.
Photograph of Dick Cheney by Paul J. Richards/AFP/Getty Images.
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