“Our country is at war, and our government has the obligation to protect the American people,” stated President Bush when asked by reporters in Panama about allegations that the CIA is using KGB facilities in eastern Europe as torture chambers. “We are finding terrorists and bringing them to justice.... Anything we do … to that end in this effort, any activity we conduct, is within the law. We do not torture.”

Mr. Bush’s answer transcended his well-documented difficulties with the English language, ascending to nearly Clintonian heights of artful dissimulation. Mr. Bush’s claim is a stark assertion of dictatorial power: whatever my administration does is legal. And since torture is illegal, the methods authorized by the administration must be something else.

The president’s comments in Panama offer a useful counterpoint to Vice President Cheney’s attempt to induce Congress to remove an anti-torture amendment from the military appropriations bill. In a November 1 meeting with Senate Republicans, reported Newsweek, Cheney insisted that prohibiting torture — which the administration doesn’t practice, remember — would “tie the president’s hands.”

Recent autopsies on 44 prisoners who died in U.S. custody in Iraq and Afghanistan produced reported causes of death such as “strangulation,” “asphyxiation,” and “blunt force injuries.” This indicates that approved forms of interrogation include methods best described as “torture,” had honest use of that term not been banished by presidential decree.

The approval of torturing enemy combatants finds its genesis in a September 25, 2001 Justice Department memo by former Assistant Attorney General John C. Yoo. The Yoo memorandum contends that “the Constitution vests the President with the plenary authority, as Commander in Chief and the sole organ of the Nation in its foreign relations, to use military force abroad.” Congress, according to that memo, cannot “place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.” (Emphasis added.) Presumably, the power to define the “nature of the response” would include authorizing use of potentially lethal forms of painful physical distress against prisoners (we can’t call it “torture,” of course).

Now a law professor at the University of California-Berkeley, Yoo has given more extensive treatment to his view of presidential war powers in his new book The Powers of War and Peace. A former clerk for Federal Appeals Court Judge Lawrence H. Silberman and Supreme Court Justice Clarence Thomas, and a prominent member of the Federalist Society, Yoo is a rising star in conservative legal circles, and his “conservative” variant of the “living document” approach to the Constitution will be seminal.

Mr. Bush’s partisans depict the president as an enemy of judicial activism and a defender of “original intent.” Yoo, a chief architect of Bush’s war powers doctrine, insists that the Constitution’s war power provisions are constantly revised through a dialectic involving the Executive and Legislative branches. They are not to be understood by examining the text or the ratification debates, but by “the actual practice of the three branches of government.”

In short, the president’s “war powers” consist of anything he can get away with.

“The president need not receive a declaration of war before engaging the U.S. armed forces in hostilities,” Yoo contends. “Rather, the Constitution provides Congress with enough tools through its control over funding to promote or block presidential war initiatives.”

Contrary to Yoo’s fictional reading of our Constitution, only Congress can take the initiative to commit our nation to war. Where the president is permitted to usurp that function, Congress can do little to rein him in. In such circumstances the president can treat our troops as hostages to extort congressional subservience. That tactic worked for Bill Clinton in Bosnia, and it’s working for George W. Bush in Iraq.

Yoo’s depiction of an unqualified executive power to declare and wage war, and to authorize the use of torture, constitutes a post-facto vindication of the conduct of King George III — a point he makes quite thoughtlessly during his discussion of 18th century critics of the British monarchy.

In both England and the colonies, Yoo writes, critics of the Crown condemned “establishment of a permanent executive ministry” that “used bribery, the sale of offices, costly wars, a standing army, and heavier taxes and public debts to sap the independence of Parliament, oppress the people, and enrich the upper classes. Such methods allowed the Crown to engage in an end-run around the checks and balances of the ancient [unwritten English] constitution, and gave it the power to erode Parliament’s ability to defend the rights of the people.”

What the American Founders revolted against under the reign of Britain’s King George III, Yoo and like-minded pseudo-conservatives seek to restore under the reign of America’s King George II.

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