The Constitution in Peril

The reading of the Constitution, the Geneva Conventions, international treaties and congressional laws on torture by the administration's smart and highly ideological lawyers was quite different from a layman's. In a series of opinions from the Office of Legal Counsel that were written by conservative zealot John Yoo but signed by his superiors, conventional understandings about the meaning of the Constitution were turned on their heads. In an August 2002 opinion, Yoo defined torture as "only extreme acts" of the kind that might "cause death or organ failure." This was to be part of the guidance used by American interrogators, who wanted to make sure they couldn't be prosecuted later for what the administration approved today. It told them a whole world of pain and suffering could be inflicted so long as the subject didn't expire. For example, such techniques as "waterboarding" might make a suspect fear he was on the brink of drowning.

"The message," says Goldsmith, "was indeed clear: violent acts aren't necessarily torture; if you do torture, you probably have a defense; and even if you don't have a defense, the torture law doesn't apply if you act under color of presidential authority." Goldsmith revised some of the legal reasoning of the August 2002 opinion in late 2004. But by then most of the key leaders of Al Qaeda responsible for September 11 had been captured (apart from bin Laden and his colleague Ayman Al-Zawahiri), and they had already been squeezed for months or years to extract whatever tales they might tell to stop the pain. (There was some measure of vengeance, in fact. According to a CIA officer privy to high-level discussions at the agency who did not want to be named because he is not authorized to speak to the press, there was internal opposition to having the CIA hold these suspects at secret sites after they'd told what they could about imminent attacks. But others argued that "these people were just scum and they wanted to waterboard them every day forever," the officer told NEWSWEEK. The waterboarders won until 14 of the prisoners held at secret sites were finally transferred to Guantánamo last year.)

Meanwhile, as we now know, the Bush administration had begun preparing for an attack on Iraq to oust Saddam Hussein even before the war in Afghanistan was over. The potential dangers to the United States posed by Saddam's erratic behavior and longstanding desire to have weapons of mass destruction were a major preoccupation for many in the administration, especially those around Cheney. Containment wouldn't be enough. A new war was needed that would "shock and awe" America's enemies, and possibly even open the way for new democratic regimes throughout the region. It would also continue the sense of emergency that helped shore up presidential power in Washington.

But, again, the intelligence community was disappointing the Bush administration. Leads in the supposedly slam-dunk case against Saddam kept losing their bounce.

So the administration and the top CIA leadership put increasing faith in an Iraqi defector code-named Curveball, who supposedly had worked as a chemical engineer in Saddam's biological-weapons program, and claimed to have seen what could be mobile bioweapons factories mounted on trucks. Los Angeles Times correspondent Bob Drogin lays out the whole sorry tale in his forthcoming book, "Curveball: Spies, Lies, and the Con Man Who Caused a War." The defector was in German hands, and was never interviewed by the Americans before the invasion. The Germans had warned that Curveball might be making up all or most of his story—and he was. He had never worked in the biological program; he'd been a taxi driver before heading to Germany to seek asylum. There were no mobile labs. The Bush administration had believed what it wanted to believe.

"President Bush launched the wrong war," writes Philip H. Gordon in a book titled, as it happens, "Winning the Right War: The Path to Security for America and the World," an argument for combating terrorism with more than military might. Bush "hyped the terrorist threat as a means of winning political support," says Gordon, a fellow at the Brookings Institution. "And while he talked of a war that challenged the nation's very existence, he fought it on the cheap, as if he knew that Americans would not have been onboard had they been told what the war would entail."