The years of revelations about White House pressure on the Justice Department to concoct far-fetched legal rationales for physically tormenting terrorism suspects, for wiretapping without warrants, and for implementing other Bush policies has obscured a still more fundamental flaw in the Bush policy-making process.

That flaw was the almost exclusive focus on what could be done to captives as a matter of law—as interpreted by aggressive advocates of virtually unlimited presidential war powers—rather than on what should be done as a matter of morality and policy, taking account of careful cost-benefit analysis and past experience.

The result was that while approving in 2002 and 2003 the use of "extreme physical pressure on captives" during interrogations, the CIA and the White House not only disregarded the lessons of history but also engaged in "little substantive policy analysis or interagency consideration."

So said Philip Zelikow, a lawyer who was a senior adviser to Secretary of State Condoleezza Rice from February 2005 until December, in a probing lecture for the Houston Journal of International Law on April 26.

Instead of grappling with the large body of evidence about what has worked best in the past, including the experience of such terror-torn U.S. allies as Israel and the United Kingdom, the administration, Zelikow asserted, pushed interrogators simply to "do everything you can [to break captives], so long as it is not punishable as a crime under American law."

These interrogation policies have been and still are being softened, in a partly secret process. But it is unclear whether President Bush and other top officials have learned that wise policy-making involves more than pushing interrogators to use every harsh method permitted by the Justice Department’s view of the law.