Another little window into the weird White House world inhabited by the George W. Bush-Dick Cheney gang since 2001 got pried open this month when an extraordinary 81-page ‘Torture Memo’ penned in 2003 by senior Justice Department lawyer John C. Yoo got declassified and found itself in the public domain.

The weirdest passage in the document was to be found 30 pages into the Memo where it addressed – and answered, clearly to George and Dick’s delight - questions rarely asked until then by American policymakers: Could the President, if he so desired, have a prisoner’s eyes gouged out? Or have scalding water, corrosive acid or caustic substance thrown on a prisoner? Or have his ear, nose or lip split, or disable a tongue or limb?

Lawyer Yoo chose to pose the questions because such bodily batterings were, in fact, mentioned in a US law prohibiting maiming. Woo parsed on these points and pronounced the legal outer limits of what could be done to terror suspects detained by US authorities. Having noted that the specific prohibitions depended on the circumstances, "or which body part the statute specifies", he added that none of it mattered in a time of war anyway; federal laws prohibiting assault, maiming and other crimes by military interrogators were trumped, in his considered view, by the President’s ultimate authority as Commander-in-Chief.

John Yoo belongs to the Federalist Society whose members are conservative Republican lawyers who claim to be committed to recovering "the original understanding of the US Constitution." In 2000 the Society watched their clown-of-choice [aka the ‘born again’ candidate] accede to the presidency. Naturally eager to exploit this wonderful window of opportunity, they found themselves driven by the logic of incumbency to argue for an expansion of executive authority.

As a fiercely conservative 35-year-old lawyer in the Justice Department, Yoo spelled out the fundamentals of a secret emergency Constitution under which the President’s inherent powers in the ‘War on Terror’ were essentially unlimited. In the wake of 9/11, Yoo argued, the US was indeed at war in a constitutional sense, and consequently Congress and the courts could no longer purport to second-guess or interfere with, or even learn about, the President’s national security decisions, however momentous. What the Bush-Cheney duo desired was unbridled authority to do whatever they deemed necessary in their War on Terror. Yoo worked unstintingly to meet their needs.

In The Matador’s Cape: America’s Reckless Response to Terror, author Stephen Holmes, research director at the Center on Law and Security at New York University School of Law, noted that Yoo’s brief was to provide the Bush Administration’s torture policies a patina of respectability, and what he did was nothing new. "Since ancient times, legal experts have made themselves available, for a fee, to provide technically refined justifications for the carefully dosed infliction of pain as a method of extracting information. In late medieval and early modern Europe, doctors of law seem universally to have endorsed excruciating inquisitorial procedures as but one more versatile tool inherited from Roman Law."

Holmes notes that Western legal thinkers have devoted themselves through the centuries to manufacturing subtle distinctions on when torture should and should not be used. It was a selective embrace of the practice, says Holmes, quoting Edward Gibbon, in Decline and Fall of the Roman Empire, in that it was admitted rather than approved in the jurisprudence of the Romans. "They applied this sanguinary mode of examination only to servile bodies . . . but they would never consent to violate the sacred person of a citizen till they possessed the clearest evidence of his guilt."

In other words, says Holmes, slaves could be tortured regularly, but not citizens, and lawyers codified and rationalized this all-important distinction. "Visceral disgust at the practice of torture could be reduced, easing the task of torturing authorities, if the ruling element in society could be reasonably sure that such methods would be used exclusively on others. This particular method of making torture acceptable is very much alive in the American war on terror."

In a chapter titled ‘Battling Lawlessness with Lawlessness’, Holmes begins with a telling observation. "The displacement of the Cold War by the war on terror has had an ironic consequence. The most infamous penal colony in a Communist country is now located at Guantanamo Bay Naval Base. We have come a long way since Solzhenitsyn. To Cuba, it turns out, the United States has spread not the blessings of liberty but the rule of manacles, stress positions, cages, and hoods."

The political motivation for the policy that justified and rationalized brutally coercive questioning techniques in the War on Terror could not be inferred from the legal justifications put forward by Yoo, as was apparent from the ‘torture memos’ themselves. The principal ‘legal’ argument for such questionable methods was that, in some settings, the law simply did not apply. "The lawyers who advanced this claim, in other words, accepted the liberal view that torture is completely incompatible with the American system of criminal justice. From this they concluded, not that torture must be banned, but rather that the American system of criminal justice must be, for some purposes, set aside," noted Holmes.

The Administration’s position simply was that in the War on Terror, the executive branch could not afford to fight with one hand tied behind its back. It must therefore shed all ordinary restrictions, domestic and international, upon the way it behaves with detainees. To gain the flexibility it needed to meet the lethal threat of transnational terrorism, the executive branch needed to suspend the rule of law whenever it thought it was an obstacle. "The most flagrantly paradoxical justification for what would otherwise be an odious violation of America’s system of values is that such behaviour alone makes it possible to protect America’s system of values." [Third World leaders appear ever willing to follow-the-leader and adopt America’s uniquely illogical model of ‘Imperial Democracy-sans-Oversight’ almost like a must-have SuperBrand in waging their own wars on terror, real and imagined.]

Thanks to Bush and Cheney’s reckless response to terror, the ‘foreign’ front and the ‘home’ front in the on-going war have become harder to distinguish. Infiltrators and saboteurs are no longer minor and peripheral to the war effort. "They are the main enemy, and the battlefield on which we meet them emphatically included US soil. As a result, the President’s war powers, if grotesquely distended and freed from oversight, as Yoo would like, threaten to overwhelm and submerge the Constitution, not just abroad but also domestically."

Yoo began his task at the Justice Department with the premise that the US Constitution gives the President virtually unchecked power over foreign affairs. "This is an alarming thesis, but becomes especially counterproductive in the post-9/11 context," notes Holmes. "It makes nonsense, for one thing, of the Administration’s push for political reform in the Middle East. What do they need reforming? According to the United Nations’ Arab Human Development Report 2002, the central flaw there was described thus : In most cases, the governance pattern is characterized by a powerful executive branch that exerts significant control over all other branches of the state, being in some cases free from institutional checks and balances."