The Romans had an expression for it: “Nulla poena sine lege,” no punishment without a law. But people sometimes forget that the opposite is also true: Without punishment for offenders, a law itself can die.
Citizens on both sides of the political divide are outraged at the recently released Department of Justice report on the Bush administration’s torture memos, and what it shows about the lawyers who compiled those legal weapons and subverted the law. But while debate rages over whether or not legal pugilists John C. Yoo and Jay S. Bybee ought to be subjected to disciplinary action for their loose interpretation of laws prohibiting torture, the media is ignoring an equally disturbing issue. Buried in the weighty study from the department’s Office of Professional Responsibility is evidence that points directly at the Central Intelligence Agency. When it came to “enhanced interrogation techniques” — the carefully parsed phrase for torture — the lawyers at Langley don’t seem to have applied a sniff test to these controversial policies.
Since the beginning of the republic, U.S. presidents have used some form of secrecy in the course of governing. In the wake of the Watergate scandal, congressional hearings in the 1970s and the disclosure of covert U.S. programs of assassination and destabilization overseas temporarily reduced the scope of secret activities sponsored by the executive branch. From the 1980s on, however, presidents have come to rely increasingly on secrecy-related practices. Though the U.S. Constitution does not explicitly grant executive secrecy in the list of Article II powers, presidents have increased their powers through legislation, the federal courts’ recognition of legal defenses to conceal information, and responses to the ongoing threat of terrorism.