The torture report

Sullivan pickup from Isikoff on John Yoo and the executive powers debate/scandal—depending on your take—the latest chapter of which is a report issued last week from the Office of Professional Responsibility. If nothing else, it makes you wonder just how inadequate our law on this issue have become—and what's being done to fix them. (Yoo told OPR investigators that the president could legally authorize the massacre of an entire village.) Obviously no one's going to touch these guys: as Isikoff reports, the Justice Department declared last month that it has no standard by which to prosecute Yoo or his former boss, Jay Bybee. But what comes next? Truth and reconciliation? That's not really this country's style, unfortunately. Expanded congressional oversight or other legislation on the order of the 1973 War Powers Act? Probably not under this president—unless it suddenly becomes incredibly popular among Republicans. The real problem seems to be that this is everyone's purview and, thus, no one's.

It's clearly an executive prerogative, but the White House played this one so well in public that it gave the impression of considerable detachment between the legal advice and the policy—when, in fact, the latter was dictating the former (with all due respect to the vacuous precedent Yoo was working with), and the former, in turn, permitting the latter. And, of course, a third party actually did the deeds. The responsibility was spread so thin that no one has to own up to it. But that can't be the way to conduct state policy—even if we are going to use "enhanced interrogation."

Reading the news about the OPR report, I recalled a quote that James Traub points out in an upcoming article in World Affairs. Reacting to a controversial operation in Gaza, Israeli foreign minister Tzipi Livni said (according to the U.N. report that has itself become a source of fierce debate), "[Israel] is a country that when you fire on its citizens it responds by going wild—and this is a good thing." Traub uses this and a couple of other situations as case studies in the inadequacies of wartime law, and although he does not breach the issue of torture per se it's clearly in the same wheelhouse. In war there will always be a berserker contingent. The question is whether anyone cares to stop them—and whether you can fight a war without them.

James Fallows (thanks again, Mr. Sullivan) remarks that the OPR report will be our generation's Hiroshima (as in the book by New Yorker report John Hersey detailing the nuclear attack on the Japanese city on August 6, 1945). But that's a pretty grim assessment if you consider that, in the most important instances, the question of proportionality in war (which the bombing of Japan points up) remains largely academic—the kind of thing debated most by philosophy students. And, of course, most people condone Truman's decision. Unless politicians take it up as a major issue—there isn't going to be a trial or any other public event to stir up national interest—I'm really afraid this issue is going to slip away without ever being properly resolved. MWF