The gist of the piece is that the Bush Administration, supported by the Office of Legal Council, has consistently ignored Congressional and Judicial restraints on treatment of prisoners and extended executive prerogative while nominally denouncing torture. The effect has been that prisoners in Guantanamo and other detention centers have been tortured pursuant to secret orders authorizing cruel conduct, even in the face of public denunciations of torture by the United States government.

What struck me was that the New York Times reporting was constrained almost entirely to the juridical arguments about the rule of law and presidential power. Indeed, these are vital political struggles and are wholly consequential for people's lives, especially those being tortured. But to be clear, these are debates between neo-conservatives and conservatives; between an idea of law as a means (or in this case an impediment) toward the ultimately more important end of national security through aggressive militarism, and the idea that the rule of law is itself of primary importance and is paramount to that end. "In other words, it is a debate of those who believe in the sovereign-like power of a president and those who are strict and literal constructionists of constitutional protections.

Although the civil libertarian in me may agree momentarily with conservatives who argue against extensive executive power, the ethics that inform this politics should not be ones that inform progressive politics. At the end of the Times article John D. Hutson, a former top Navy lawyer, is quoted as saying "The problem is, once you've got a legal opinion that says such a technique is O.K., what happens when one or our people is captured and they do it to him?"

Hutson's argument is about the only one with an ethical tone in the whole article. But this argument is part of the problem because in calling for torture's end in the name of our own safety, we further dehumanize those brown, foreign men who are the victims of our policies of torture. The same racialized and nationalist ethos used to justify war and torture have become the standard ethical argument against it; that is, ‘our political decisions should protect American life and other life is valued only in support of this imperative.’

But these are lives we are talking about and when political debate is overcome by questions of constitutional latitude, we miss the fact that there are real people locked in a prison somewhere being beat, suffocated and frozen.