The latest Republican parlor game on the torture issue is to pump up the talking point that torture is a Democratic problem, because Democrats have been in the majority in Congress since 2007, and therefore could have stopped the torture and didn't.

Hmm.

Yes, I'm pretty sure you instantly see the problem with that one. Republicans were in the majority in Congress for most of the duration of the Bush "administration's" torture program. But there's more to it than just that.

The new twist -- really a recycled Iraq war talking point -- is that since Democrats "knew about" the program thanks to the bare bones, no staff, top secret, we'll-prosecute-you-for-treason-if-you-mention-this briefing four of them received, they "could have stopped it if they had wanted to."

Here's the meme from FOX:

Defenders of the interrogation program note that if Congress had wanted to kill the program, all it had to do was withhold funding, which didn't happen.

Ah, yes. You'll recognize it as the "have the courage of your convictions" argument from 2007. That is, the GOP talking point that said that Democrats must really favor not only the Iraq war, but the way it was being prosecuted, because they refused to register their disagreement by cutting off the funding.

The problem with that, for almost anyone who has any kind of memory, is that it ignores the almost comical Bush/Cheney gang use of signing statements, which they trotted out on a regular basis to claim that the "commander in chief" was unbound by any other authority other than his own when it came to the exercise of military power. It was no accident that any and all legislation passed by the Congress that even hinted at exercising the most minimal control over military policy was met with one of these signing statements, as were legislative provisions asserting Congressional objections to warrantless wiretapping, and many other aspects of the broader "war on terror."

But more than that, Bush "administration" officials were unafraid to assert that even had Congress made explicit demands for policy changes, like the withdrawal of troops from Iraq, the president would "defy" such legislation. Not fight against. Not issue a signing statement about. Not veto. Defy.

1000+ signing statements. Open willingness to defy Acts of Congress. And of course, open defiance of duly authorized Congressional subpoenas, which continues to this day, even after Bush has left office and is no longer the executive behind so-called executive privilege.

This was the context in which Republicans contend Congress had its fair shot at ending torture, but instead chose to give its backhanded endorsement to the practice. Congress could get no answers from the "administration" even on matters of routine domestic policy, and according to the "administration's" own legal theories couldn't even compel witnesses to appear to answer questions about what policies existed that they were supposedly empowered to terminate. And those high-ranking few who were privy to the briefings, such as they were, were under constant threat of accusations of having compromised national security if they had discussed with colleagues the very remedy Republicans say was so readily available. Witness Sen. Jay Rockefeller's (D-WV) almost otherworldly timidity in registering his concerns about illegal surveillance programs: he hand wrote his letter to Dick Cheney (of all people -- like he'd care about Rockefeller's sobbing!) so that even his personal staff wouldn't see their content!

But oh! Democrats were fairly tripping over all the missed opportunities to end the secret program by public legislative act that were lying around, unused!

The Bush White House was clear in its declarations. The president would defy troop withdrawal legislation, and on anything else even scratching the surface of his claims of executive power, they would put up a "cataclysmic fight to the death" before allowing Congressional Democrats to restrain them.

I don't know how they could have made themselves more clear. And yet today, they seem to recall some sort of cordial and open power-sharing relationship. "Oh my! You could have just asked!"

In truth, there weren't many options available. There never are when you're dealing with an intransigent president. The options are as stark as they are few in number. Of course, the one option that underlies the power of all the rest is impeachment, and once that was "off the table," well, we all know where that left us.

No, the notion that and end to the torture policies could have been had for the asking is a sick and deeply cynical revision of the true history of the period. But it should also be said that Democrats did little to differentiate their opposition to torture (or illegal surveillance, extraordinary rendition, indefinite detention, defiance of subpoenas, perversion and politicization of the official mechanisms of government, and numerous other outrages upon the Constitution and its sytem of checks and balances) from their opposition to any routine matter of policy. And that's what has brought us to the point where torture can be "seriously debated" as a he said/she said issue.

Justice Frankfurter foresaw the way this ploy worked, when he wrote in the famous Youngstown case:

Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken executive practice, long pursued to the knowledge of Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on "executive Power" vested in the president by §1 of Article II.

We now see this play out before our very eyes -- on the issue of torture, no less! -- and still we are asked to "move on" and not "look backward." But this "looking backward" has another name: precedent. The incredible irony of this is that it is by "looking backward" at what they allege to be Democratic acquiescence that Republicans hope to establish the propriety of their torture policies, while we are admonished by our own not to "look backward" even at what they're doing right now, and instead permit them to normalize the once incredible notion of polite societal acceptance of torture and our responsibility for it.

We may not "look backward," but I can assure you we will have no such cooperation from them, whether in this particular moment or in any other in the future. "You didn't 'look backward' then. Why should you do it now?"

It's a death warrant for history itself. And I think everyone knows where that leads.