U.S. torture was illegal, but nobody is likely to be punished

In a rare case of editorial initiative, the New York Times editorial board has flatly called for an investigation of former Vice President Dick Cheney and other prominent George W. Bush administration figures involved in authorship of the so-called torture memos, which authorized use of "enhanced interrogation techniques" against suspected terrorists captured in the wake of the 9/11 attacks and the wars in Afghanistan and Iraq.

The editorial was more wish that prediction. Noting that President Barack Obama had already declared that "we need to look forward as opposed to looking backward" at past misdeeds, it lectured that "the nation cannot move forward in any meaningful way without coming to terms, legally and morally, with the abhorrent acts that were authorized, given a false patina of legality, and committed by American men and women from the highest levels of government on down."


The Times editorial board singled out Mr. Cheney, who only days earlier in a "Meet the Press" interview had not only defended the use of waterboarding and other such techniques but had declared that, if called on to authorize them again, "I'd do it in a minute."

Also specifically mentioned in the editorial was David Addington, Mr. Cheney's chief of staff as vice president, former Bush CIA director George Tenet and former Justice Department Office of Legal Counsel lawyers John Yoo and Jay Bybee, key figures in formulating the memos defending the torture techniques.


Mr. Yoo is the same Bush legal adviser at Justice who articulated and pushed the concept of "the unitary executive," arguing that a president, particularly in wartime, had the sole power to initiate military action under his constitutional function as commander-in-chief of the American armed forces.

In the run-up to the invasion of Iraq in 2003, Mr. Yoo in 2002 told a Senate subcommittee on the Constitution that, despite the specific constitutional stipulation that the power to declare war rested with Congress, the president could act alone. On that occasion, Mr. Yoo gratuitously added that Mr. Bush would welcome congressional support of his decision to do so. The suggestion was not well received by then-Subcommittee Chairman Russell Feingold, but that didn't slow Mr. Bush's rush to oust Saddam Hussein.

In all their complaining about President Obama exceeding his constitutional powers in using an executive order to delay certain immigration deportations, Republicans seem to overlook Mr. Bush's own overreach in his taking the country to a second war in 2003.

Mr. Yoo subsequently turned his legal talents to the writing of the torture memos, which the Senate Intelligence Committee report has said "erases any lingering doubt about the depravity and illegality" of the brutal methods used to extract information from suspected terrorist detainees.

Two private groups, the American Civil Liberties Union and Human Rights Watch, have petitioned outgoing Attorney General Eric Holder to appoint a special prosecutor to consider legal action against perpetrators "of what appears increasingly to be a vast criminal conspiracy, under cover of law, to commit torture and other serious crimes."

Early on, the Times editorial noted, President Obama did have his Justice Department investigate the destruction of videotaped acts of torture by CIA operative Jose Rodriguez Jr., but no action was taken against him, though the United States in 1994 had ratified an international Convention Against Torture.

The editorial ponders now that "as hard as it is to imagine Mr. Obama having the political courage to order a new investigation, it is harder to imagine a criminal probe of the actions of a former president." It concludes: "The question is whether the nation will stand by and allow the perpetrators of torture to have perpetual immunity for their actions."

As a wise man on a newspaper copy desk once said: "Writing editorials is like wetting your pants in a blue serge suit. It gives you a nice warm feeling all over, and nobody notices." So it is likely to be in this case. Nevertheless, it's to the credit of the Times editorial board to point out to readers what was done by the Bush administration in their name in the not-so-distant past.


Jules Witcover is a syndicated columnist and former long-time writer for The Baltimore Sun. His latest book is "Joe Biden: A Life of Trial and Redemption" (William Morrow). His email is