Above The Law?
Tuesday, June 22nd, 2004My excuses for not posting over a four-day span usually include something along the lines of “I was taking a weekend off” or “I was way too busy,” which unless I back either one of those statements up with evidence of such means that I was just bullshitting and being lazy all weekend. But THIS weekend was different. I actually was working all weekend - on a new layout. That’s right, I’ve decided to take this horribly outdated design and make it slightly less outdated through the magic art of copying somebody else’s site and just changing it around a little bit. I’m headed up to D.C. tomorrow afternoon to pick up the siblings, so I should hopefully have some time in the airport and on the plane to fiddle around with the final kinks and have the damn thing up on here by Wednesday.
Anyways, am I the only person who is in pure awe over this? I’ve reread the article over and over and am just amazed. This isn’t just front-page news material to me, this is run-out-in-the-streets-yelling-at-the-top-of-your-lungs-to-anybody-who-will-listen-to-you type news.
And finally, I really am worried. Worried about my future, my country’s futures, but most importantly, Shyzer’s future. You have no idea how many times in the past year I have held back from ranting about the current administration in the driver’s seat of our government. I refuse to let Shyzer slide down that slippery slope (say that 5 times fast) and become a site where all I do is bitch and moan about things. But I honestly wonder how long I’ll be able to silent myself if President Bush is reelected this November. I’ve considered opening up a Blogger.com account and just posting that type of material over there, which I might end up doing one of these days. But honestly, one site is enough for now.
Instead, I want to share with you a well-written piece from a Professor at Yale’s School of Law. It underlines one of the main problems with the Bush Administration that is hardly spoken about with much intelligence; their attempts and abilities to justify their misjudgments and downright blatant errors instead of admitting they erred and correcting the problem. In the past, when both Democrat and Republican Presidents made mistakes, they were at least alerted to the said mistakes since they had enough foresight to surround themselves with at least a few people who could sense the difference between right and wrong. Sometimes they were able to correct the mistakes and were reelected. Other times their attempts to correct the mistakes backfired and they were quickly voted out of office. Rarely did they outright say they were wrong, but there was always at least some indication through a “news leak” or some other method that they understood the problem, understood where the problem occurred, and understood that they needed to fix it.
Which is why I am worried. Instead of correcting their errors, the Bush Administration seems hell-bent on a mission and refuses to listen to any amount of reasoning. Ever since September 12th, they have used fear and terror to propagate their not-so-hidden agenda while at the same time literally lying straight to the public. They refuse to admit they have done anything wrong at all. Instead, they seem to almost find pleasure in putting on the blinders and just plowing through anybody who even remotely disagrees with them.
Which leads me to this article:
In the past few days there has been much discussion of the recently released secret Pentagon “torture memo”. The report argues that the President, under his powers as commander-in-chief, has the right to order torture of suspects regardless of the Eighth Amendment’s ban on cruel and unusual punishments, existing laws, and international agreements to the contrary. It also argues that people acting at the president’s request can escape prosecution for crimes on the grounds that they are only following orders.
There is a pretty serious problem with the arguments in the memo, given that the Article II, section 3 of the Constitution states that the Executive “shall take care that the laws be faithfully executed.” That suggests that the Commander-in-Chief power described in Article II, section 2, clause 1, however, great it may be, cannot be exercised through violation of law.
In any case, I thought I’d offer some historical perspective on the controversy. To begin with, here, (reprinted from my constitutional law casebook), is Richard Nixon making arguments remarkably similar to those in the torture memo. These come from an interview with David Frost following his resignation as a result of the Watergate scandal:
Mr. David Frost: So what in a sense you’re saying is that there are certain situations . . . where the President can decide that it’s in the best interests of the nation or something, and do something illegal.
Mr. Nixon: Well, when the President does it, that means that it is not illegal.
Mr. Frost: By definition.
Mr. Nixon: Exactly. If the President, for example, approves something, approves an action because of national security, or, in this case, because of a threat to internal peace and order, of significant magnitude, then the President’s decision in that instance is one that enables those who carry it out to carry it out without violating a law. Otherwise they’re in an impossible position.
Nixon argued that the President is not above the law because the President determines what the law is, and subordinates who follow the President’s orders are thereby immunized. It follows that if the President determines that torture does not violate the law, it does not violate the law, and if he orders his subordinates to torture people, they are immunized from later prosecution.
Next, here’s Abraham Lincoln, who wrote the following in an 1863 letter to Ohio Democrats after they passed a resolution denouncing his policy of military arrests and suspension of habeas corpus:
You ask, in substance, whether I really claim that I may override all the guarantied rights of individuals, on the plea of conserving the public safety when I may choose to say the public safety requires it. This question, divested of the phraseology calculated to represent me as struggling for an arbitrary personal prerogative, is either simply a question who shall decide, or an affirmation that nobody shall decide, what the public safety does require, in cases of Rebellion or Invasion. The constitution contemplates the question as likely to occur for decision, but it does not expressly declare who is to decide it. By necessary implication, when Rebellion or Invasion comes, the decision is to be made, from time to time; and I think the man whom, for the time, the people have, under the constitution, made the commander-in-chief, of their Army and Navy, is the man who holds the power, and bears the responsibility of making it. If he uses the power justly, the same people will probably justify him; if he abuses it, he is in their hand, to be dealt with by all the modes they have reserved to themselves in the constitution.
Lincoln’s argument, although flawed in its interpretation of Article I, section 9, is far more subtle than Nixon’s. Lincoln does not assert that he automatically determines what the law is simply because he is President. Rather, he argues that the Constitution specifically contemplates that the writ of habeas corpus can be suspended in time of emergency, but does not specify who must make that decision (he is wrong about that– my view is that under Article I, section 9, Congress must authorize the President; the President cannot do it alone). Someone has to make a decision in times of emergency about suspension of the writ, Lincoln argues, and therefore President is permitted to make a gamble: If he exercises his powers justly, he will be exonerated. If he abuses his powers, then he is subject to sanction, including not only being thrown out of office in a subsequent election, but also impeachment, and subsequently, indictment, and criminal prosecution.
Note that Lincoln is not saying, unlike Nixon, that the Commander-in-Chief power allows him to do anything, and that all of his actions are necessarily legal. Rather Lincoln is saying that Article I, section 9 gives him the power to suspend the writ of habeas corpus and detain people indefinitely if he deems necessary, and that his decision will be subject to political oversight later on. In this passage, Lincoln does not say that he can overturn any existing laws (in another famous statement, he suggests he should be able to disregard a single law to preserve all the others). He does not say that he can violate the Eighth Amendment’s prohibition on cruel and unusual punishments, laws specifically prohibiting torture, or the country’s treaty obligations, or commit what would otherwise be war crimes. He merely says that a particular clause of the Constitution allows detention of people in times of emergency, that in the absence of a clear statement as to who makes this decision, he has the right to make it, and that he will be held to account if he abuses his power. How much more so should he be held to account if he violates the Constitution or the law.
Moreover, Lincoln’s argument requires a certain degree of political transparency. It requires that the people be able to know whether the President has made a difficult decision in order to preserve the country. The problem with the present torture scandals is that, as far as we know, the Bush Administration never wished its policies regarding torture, or its actual practices of prisoner abuse, to see the light of day. Rather, it was merely luck that photographs of what went on at Abu Ghraib were released to the media, which then set the stage for further revelations. And unlike Lincoln, the Bush Administration does not believe that it can be held accountable for its actions if abuse is proved. Indeed, it continues to insist that it should be allowed to do what it wants, however it wants, without interference from Congress or anyone else.
The Bush Administration has been pursuing a logic very much like Nixon’s. The President, because he is Commander-in-Chief, does not violate the law if he thinks a particular action is necessary. Rather, he determines what the law is. This way of thinking twists the Rule of Law beyond recognition. It is a chilling reminder of what people seduced by power and convinced of their utter rectitude will do to justify their actions.
