The Wall Street Journal has an extraordinary article in today’s edition. The Journal has taken to making an article a day open to the public for bloggers and others to link to. This wasn’t the one they chose today; but I hope they’ll make an exception and make this one available too.
The article describes a confidential Pentagon report providing legal rationales and interpretations by which US personnel could use torture and methods of near-torture in contravention of various international treaties and US laws. The bulk of the arguments rest on arguments of ‘necessity’ and the powers of the president as commander-in-chief. They also go into some depth about how people acting at the president’s order could avoid prosecution for demonstrably criminal acts.
The article is well worth reading for this alone.
But that whole discussion is different in kind from one passage in the report. I quote from the piece …
To protect subordinates should they be charged with torture, the memo advised that Mr. Bush issue a “presidential directive or other writing” that could serve as evidence, since authority to set aside the laws is “inherent in the president.”
So the right to set aside law is “inherent in the president”. That claim alone should stop everyone in their tracks and prompt a serious consideration of the safety of the American republic under this president. It is the very definition of a constitutional monarchy, let alone a constitutional republic, that the law is superior to the executive, not the other way around. This is the essence of what the rule of law means — a government of laws, not men, and all that.
Now, we know that presidents sometimes break laws and they frequently bend them, if only in cases where the laws don’t seem to anticipate a situation the president finds himself confronting. There is even an argument that the president can refuse to enforce laws he deems unconstitutional.
But there is no power inherent in the president simply to set aside the law. Richard Nixon famously argued that “when the president does it that means that it is not illegal.” But the constitutional rulings emerging out of Watergate said otherwise. And history has been equally unkind to his claim.
Now, there are some possible exceptions — ones of an extra-constitutional nature. If memory serves, Thomas Jefferson — when he was later thinking over the implications of his arguably unconstitutional Louisiana Purchase (and again this is from memory — so perhaps someone can check for me) — argued that the president might find himself in a position in which he might have the right or even the duty to disregard the law or some stricture of the constitution in the higher interests of the Republic.
Jefferson’s argument, however, wasn’t that the president had the prerogative to set aside the law. It was that the president might find himself in a position of extremity in which there was simply no time to canvass the people or a situation in which there was no practicable way to bring the relevant information before them. In such a case the president might have an extra-constitutional right (if there can be such a thing) or even an obligation to act in what he understands to be the best interests of the Republic.
The clearest instance of this would be a case where the president faced a choice between letting the Republic be destroyed or violating one of its laws.
But that wasn’t the end of his point. Having taken such a step, it would then be the obligation of the president to throw himself on the mercy of the public, letting them know the full scope of the facts and circumstances he had faced and leave it to them — or rather their representatives or the courts — to impeach him or indict those who had taken it upon themselves to act outside the law.
As I recall Jefferson’s argument there was never any thought that the president had the power to prevent future prosecutions of himself or those acting at his behest. Indeed, such a follow-on claim would explode whatever sense there is in Jefferson’s argument.
If you see the logic of Jefferson’s argument it is not that the president is above the law or that he can set aside laws, it is that the president may have a moral authority or obligation to break the law in the interests of the Republic itself — subject to submitting himself for punishment for breaking its laws, even in its own defense. Jefferson’s argument was very much one of executive self-sacrifice rather than prerogative.
Somehow I don’t think that’s what this White House has in mind.
