The theological justification for al Qaeda's wholesale slaughter of civilians was provided by Sayyid Imam al-Sharif, also known as Dr. Fadl, one of the founding fathers of al Qaeda. Because the murder of innocents is forbidden in Islam and the murder of Muslims in particular, Ayman al-Zawahiri and Osama bin Laden required some sort of theological framework for justifying terrorism. This was provided by al-Sharif, who essentially argued in his book, "The Compendium of the Pursuit of Divine Knowledge," that apostates could be murdered, and that approach, takfir (which has come to be known as takfirism) allowed al Qaeda to, for all intents and purposes, kill anyone they wanted without violating the laws of Islam by declaring them to be apostates. In other words, Dr. Fadl helped provided a theological justification for something that everyone involved knew was wrong.
The legal memos justifying torture aren't very different in terms of reasoning--it's clear that John Yoo and his cohorts in the Office of Legal Counsel saw their job not as binding the president to the rule of law, but to declare legal any tactic that the executive branch believed necessary to fight terrorism. They worked backwards from this conclusion, and ethics officials at the Department of Justice, we now know, decided that they they had violated professional standards in doing so. Whereas al-Zawahiri and bin Laden turned to al-Sharif for a method to circumvent the plain language of the Koran, Bush and Cheney went to Yoo and Jay Bybee to circumvent the plain language of the law. Most Islamic scholars, just like most legal experts, reject their respective reasoning as unsound.
The torture memos--indeed, all of the pro-torture arguments rest on a similar intellectual themes to the takfiris. Suspected terrorists are "illegal enemy combatants", outside the framework of laws that would otherwise guide us. Just as the takfiris justify the killing of even self-identified Muslims by excommunicating them as "infidels", torture apologists argue that even American citizens like Jose Padilla who are accused of being terrorists become legal "apostates" without any rights the president is bound to respect. These are extraordinary circumstances, this is an extraordinary war--and so, the Bush administration turned to Yoo, a man who believes the president is bound by no laws during wartime: he can murder a village of innocent civilian non-combatants just as surely as he can crush the testicles of a child or deploy the military against residents of the United States. The architects of torture are the intellectual mirror image of their declared enemies, depending on the perceived inhumanity of their foes to justify monstrous actions. It's worth noting however, that the Bush administration did not take full advantage of the wrongs that the lawyers in their Office of Legal Counsel would have enabled. My point is not to equate the deeds of AQ with the deeds of the Bush administration--merely to point out justification for acts that are on their face unjustifiable take a similar intellectual path.
From his cell in an Egyptian prison, al-Sharif denounced his former colleagues in al Qaeda, declaring that the killing of innocents was wrong. He essentially renounced his earlier work providing the theological basis for politically motivated murder and destruction, declaring, "There is no such thing in Islam as ends justifying the means," now arguing that the murder of innocents, Muslim or otherwise, was sinful. Whatever theological cover al-Sharif's original arguments provided were meaningless against the body count of mostly Muslim innocents amassed by al-Qaeda in their war against the "West", which by the numbers has been a war against fellow Muslims. In combination with the furious efforts of moderate Muslims and even committed Islamists like al-Sharif, al Qaeda and its methods have been largely discredited, to the point where, as Fareed Zakaria writes, we don't fear "a broad political movement but a handful of fanatics scattered across the globe."
I confess to being bothered that we haven't seen a similarly backlash against the architects of torture here--part of the reason we haven't, is because even though innocents were tortured, we still see them as fundamentally alien. Few Americans directly suffered as a result of what Yoo and Bybee did--although I think we have yet to understand that damage that's been done to our society as a whole. Bolstered by ideological partisans and powerful figures looking to avoid accountability for their actions, men like John Yoo and Jay Bybee have yet to be held responsible for the crimes they enabled--and I'm not sure they ever will be--although I'm less concerned with their punishment than with the permanent American rejection of torture. The Justice Department's David Margolis overruled the original conclusions of the Department's ethics lawyers that Yoo and Bybee had, in ignoring legal precedents and sanctioning behavior that was likely illegal, had committed "professional misconduct". That would have triggered professional sanctions for Yoo, a tenured professor at Berkeley, and Bybee, a sitting federal judge, but Margolis' memo instead concludes that they had excercised "flawed legal reasoning" that could be forgiven in part because of the context in which the memos were written, months after the 9/11 attacks. Margolis though, does not endorse their reasoning, and as for Yoo, he writes that whether or not he deliberately gave bad legal advice is a "close question." Al-Sharif will never be able to wash the blood from his hands, but while this founding father of al Qaeda has recoiled from the fruits of his labor, the American architects of torture continue to argue that their reasoning is legally sound.
The American conscience, when it decides to act, is mighty--but it is also sluggish and vain. Americans are crushed by the weight of not fulfilling their own high expectations--so the shameful acts of one generation are often rectified by a subsequent generation unencumbered by their own complicity in such acts. So the compromise the Founding Fathers reached on the issue of slavery, in defiance of the spirit of the documents they authored, was eventually righted by the Civil War. The slavery by another name of reconstruction was ignored by a nation weary of conflict after nearly being rent in two--but eventually gave birth to the civil rights movement. The suffragettes were forced to accept a compromise on the 14th Amendment that denied them the vote--but they would ultimately prevail. Roosevelt interned Japanese Americans, Reagan gave them reparations. The American conscience is often slow to action, but not because it cannot recognize evil--but because our view of ourselves as a people guided by justice is so important to who we are that when confronted with proof of our own shortcomings, we recoil in shame and precious vanity. Eventually, with the big stuff, we usually find our way--we see this with our slow, staggering, but inevitable march towards full personhood for gays and lesbians. And while those who stained America's honor with war crimes have escaped accountability for now, these American takfiris will eventually be judged by history with a clarity we cannot muster today.
The arc of the universe is long ... you know, all that stuff.