Law twisted to justify presidential tolerance of torture.

THE law "should prevent us from falling into our base instincts," says John Hutson, retired judge advocate general of the U.S. Navy. At the same time, he says, it should embody "the highest goals of humankind."

The law did neither in the hands of civilian lawyers at the Pentagon, the Justice Department and the White House, who twisted it into pretzels to reach the astonishing conclusion that the president doesn't have to obey the law if he wants to order torture.

In classified memoranda disclosed in news reports, civilian administration lawyers argued that presidential power trumps federal law and international treaties forbidding torture.

"It's one of the most preposterous things I've seen," said Scott Horton, an international lawyer at Patterson Belknap Webb & Tyler in New York. The U.S. Supreme Court has clearly said quite the contrary in the leading case on the issue.

Who knows whether the lawyers were nudged into giving this advice. But these memoranda look like textbook cases of what happens when leaders--corporate or governmental--turn to lawyers to concoct a legal incantation to cover whatever misdeed the leaders want to commit.

Consider this reasoning in a classified March 6, 2003, memo from Pentagon lawyers. It says a soldier can legally inflict severe pain on a detainee "if causing such harm is not his objective." So, if the soldier has some purpose beyond simply inflicting pain (like eliciting information, maybe?) it's OK to torture a detainee.

Where did these lawyers learn to parse words? From Bill Clinton?

"I am woefully despondent over the lawyers," said Hutson.

President Bush, apparently, is not.

He has been advancing the careers of some of the civilian lawyers who wrote these memos, while career military lawyers who urged caution were pushed out of the debate.

Court appointments

This isn't to suggest the memoranda, which Bush says he doesn't recall seeing, prompted him to promote their authors, who surely have other accomplishments. It is to say that Bush seems to like the way they think.

As assistant attorney general in the Justice Department's Office of Legal Counsel, Jay Bybee, signed a Justice Department memo that said international anti-torture laws "may be unconstitutional if applied to interrogations" of overseas captives, according to the Washington Post, which obtained the memo.

Now Bybee occupies a lifetime seat on the 9th U.S. Circuit Court of Appeals, thanks to Bush.

As general counsel to the Department of Defense, William Haynes II oversaw those whose memo said the president doesn't have to obey anti-torture laws.

More recently he said in a letter to Sen. Patrick Leahy, "The United States does not permit, tolerate or condone any such torture by its employees under any circumstances." Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee, asked for an explanation of U.S. policy.

Bush nominated Haynes to the 4th U.S Circuit Court of Appeals, although the prison abuse scandal has now put that nomination on hold.

White House Counsel Alberto Gonzales has for years been mentioned as one of Bush's favorites for a spot on the U.S. Supreme Court. In January 2002 he wrote in a memo that one of the benefits of excluding Guantanamo Bay detainees from Geneva Convention protection is that the U.S. couldn't be accused of war crimes in its treatment of them.

This is like a criminal defense lawyer telling clients that by saying they are beyond the reach of the law, they can go ahead and commit crimes.

While civilian lawyers were busily writing these memos, senior members of the Judge Advocate General's Corps, or JAG, became so distraught over being marginalized that they sought help from the New York City Bar Association in May 2003.

They came to Horton, then chairman of the bar's International Human Rights Committee, and said their political bosses didn't like their cautious advice on interrogation techniques and cut them out of the discussion, Horton said in an interview.

More abuse cases

No one has come up with a direct line between the memos and the sexual humiliation, beatings and deaths that U.S. soldiers visited upon Iraqi and Afghan detainees. Bush has apologized for the soldiers' behavior and assured the world that he believes in following the law.

Meanwhile, more stories of abuse keep piling up.

This month the Army first denied and then acknowledged that Pvt. 1st Class Sean Baker suffered brain damage at the hands of military police at Guantanamo Bay, Cuba, in January 2003. As part of a training exercise, MPs were told Baker was a violent detainee who had to be removed from his cell, so they beat him, choked him and banged his head on the floor until he managed to utter the words, 'Tin a U.S. soldier," Baker told WLEX-TV in Lexington, Ky.

This isn't what happens when respect for the law and human decency is declared, not only at press conferences, but also at every place where Americans detain suspects.

Until the Abu Ghraib prison scandal broke, said Hutson, "Nobody said they may be terrorists and they may be evildoers, but they're still human beings, and we're still Americans, and we will treat them with the dignity and respect that Americans treat human beings."

Ann Woolner is a columnist with Bloomberg News.