Wednesday, April 2, 2008

Different Kinds of Arguments

The Pentagon has released a memo from 2003 authored by torture enthusiast John Yoo asserting that the president does not have to bother with laws governing the treatment of detainees and enemy combatants. This strikes me as a shockingly poor legal argument:

"If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network," Yoo wrote. "In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions."
We could argue a lot of things, including that, but it wouldn't change the Constitution, case law, common law, statutory law, treaty-based law, or any other law. That sounds like an argument one would make in favor of pardoning someone who broke the law, and such an argument would be inescapably political and ethical. It might even be a compelling political and ethical argument. But a legal argument needs to be grounded in the law, and the Constitution does not exempt the president from obeying the law if he thinks dangers are afoot, nor if he is worried about future attacks, nor if the general public is afraid. The president is subject to the law. Period.

If Bush or any other president sees a harm and wishes to prevent it, but is constrained from doing so because of legal limits on his power, he has choices. He can alert the Congress and/or the people to the limits and argue that they be lifted by means of a statutory change or Constitutional amendment. Or he can go ahead and break the law and, should he face the question in an impeachment trial, argue in good conscience that he did so to prevent death, destruction, and mayhem, and would do so again.

He does not have the choice of pretending the law does not apply to him. We fought a revolution in this country over the principle of rule-by-law over and against rule-by-executive.


Samuel John Klein Portlandiensis said...

That photo of Yoo there is creepy.

It looks like he's about to go for my throat.

Dale said...

He *will* go for your throat if he thinks it will increase the power of the executive branch. The man is a fascist.