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.

What should our government do when it captures a noncitizen suspected of being an Islamist terrorist?

Under the Bush administration’s approach, partly ratified by Congress, such people can be imprisoned indefinitely, perhaps for life, without ever seeing a judge or jury, based on slapdash military hearings with no defense lawyers, no real opportunity to confront the evidence against them—which can be obtained through coercive interrogation—and all-too-cursory judicial review. Some detainees have also been subjected to years of interrogation, including techniques so brutal as to meet many definitions of torture—and, in a few cases, to cause death.

By contrast, under the approach demanded by some human-rights groups, even a captive who is undoubtedly a mass-murdering terrorist must be freed unless the government can prove his guilt beyond a reasonable doubt in an ordinary criminal trial. If the proof would publicly expose secrets so sensitive as to endanger the lives of intelligence sources, that would be the government’s problem. Nor could terrorist masterminds be subjected to even mild discomfort by interrogators seeking to extract life-saving information.

The gulf between these two approaches illustrates the polarization of our political and legal debate on the handling of terrorism suspects. No satisfactory resolution seems likely until at least 2009. Then, perhaps, we may have a new president willing to heed the advice of the more moderate-spirited experts (some named below) who have been thinking through the challenges posed by the hundreds of suspects now held by the military and others who may be captured in the future.