On Presidential Power

While I find the torture recommendations in John Yoo's memos awful, they worry me less than the general assumptions embodied in them about presidential power.  After all, the issue of allowable tortures is a narrow issue that can be dealt with efficiently through Congressional legislation, and is almost certainly something to be disavowed by the next administration.

Based on historical precedent, what is less likely to be disavowed by the next administration are the broader definitions of presidential power adopted by GWB.  It is in this enhanced theory of presidential power where the real risk to the nation exists, and, unfortunately, there are all too few examples since George Washington's declining to run for office a third time of president's eschewing power.  Already, folks on the left are crafting theories around using the imperial presidency to address their favored issues, such as the University of Colorado's proposal for implementing greenhouse gas controls by executive fiat.

  • ColoComment

    "...the issue of allowable tortures is a narrow issue that can be dealt with efficiently through Congressional legislation" -- unfortunately (or not, depending upon one's perspective), despite making much ado about the topic, Congress has declined, nay, refused to define, much less deal with, the "narrow issue" of torture. In the absence of Congressional attention, is it any wonder that the executive filled that void with its own take on the issue?

  • http://jrament.blogspot.com/ James Ament

    I'm sure you've noticed that neither Democrat running for president has personally complained about GWB having too much power; they've left that to others... and I doubt that either one would relinquish any if they get elected. But that will be OK because they're hearts are in the right place.

  • http://www.tinyvital.com/blog John Moore

    The issue of presidential powers in a time of war is different from the issue otherwise. A court should not side with a president who uses war powers to fight "climate change." That would be counter-precedent and unconstitutional (as if that really matters if the court is packed with lefties).

    It is clear that the executive has the right to torture or kill illegal combatants if they are not US citizens. Period. It is clear that the president has the power to monitor internet and other communications if they cross our border - even in time of peace. These are legal war powers with ample precedent and constitutional backing.

    Furthermore, punishing those illegal combatants for violating the Geneva Convention is a corrective action.

    As one who has been through military training in withstanding torture, I know that torture works for extracting militarily useful information. Furthermore, the use of non-torture methods (such as waterboarding), works just as well, and is appropriate. Our own servicemen are waterboarded as part of their training. If we do it to them, we can certainly do it to individuals which, by treaty rights, long term precedent and the nature of war are already subject to summary execution.

    Waterboarding a Jihadist is certainly less severe, and more humanitarian, than what we did in WW-II (justified): summarily executing German infiltrators wearing US uniforms during the Battle of the Bulge.

  • HTRN

    "Congress has declined, nay, refused to define, much less deal with, the "narrow issue" of torture"

    Sorry, but no. See Title 18, Section 1, Chapter 113C. IIRC, it was passed in 1994.

  • mahtso

    I have not seen any commentary providing specific examples of where Mr. Yoo's legal analysis is wrong. I’ll admit I have no intention of reading the memos and trying to determine whether his analysis is correct and, I probably do not have sufficient knowledge to do so.

    The Cato piece linked asserts that Mr. Yoo provides his own reductio ad absurdum and provides the youtube information. That his analysis may lead to what some (or even most) would consider to be an absurd end does not convince me that Mr. Yoo's legal analysis is wrong.

    I believe it was in East of Eden that a father is telling his son about war and how in war the most fundamental rule, the prohibition against killing, is suspended. I have never served in the military, but I assume that much of what goes on in a war would be considered absurd and most people would not conclude that the acts are somehow unconstitutional. Moreover, other constitutional provisions that are readily accepted can also lead to absurd results (e.g., suppressing clear evidence of guilt because the Miranda warning was not given quickly enough. Except Miranda is not really in the constitution….)

    Consider the atom bomb, firebombing Dresden, deliberate attempts to sink ships with thousands aboard etc. If the Constitution allows these, is it common sense or an absurdity to conclude that in a war the President may lawfully order other barbarous acts?

  • http://rashynullplanet.com/blog/ Matt

    "It is clear that the executive has the right to torture or kill illegal combatants if they are not US citizens. Period. It is clear that the president has the power to..."

    Why the distinction between "right" in one case, and "power" in the other?

    The president has no more rights than you do. He certainly claims more powers.

  • http://jrament.blogspot.com/ James Ament

    Sorry about my previous post - they're should be their. Jeesh - I need to proof read.

  • mark

    One thing that people who oppose "torture" do not understand is that "torture" is not being used for a prosecution. The conduct is being used to obtain intelligence, which can be used preemptively to protect the citizens of the United States. Those that lash out against George Bush, and the "Bush Doctorine", are cosigning our nation to one that must be attacked and damaged FIRST before we can seek action. Think about that for a while, and you will realize that Barrack Obama and Hillary Clinton, and their fellow travellers, are complete idiots.

  • Rocky Mountain

    I suppose there would be three objections to torture, however it is defined. First, some people would object to anything that GWB allowed or put forward as an intelligence-gathering tactic. Another reason would be a possible fear that such tactics would be indiscriminately used on our civil population possibly for retaliatory or political purposes a la Zimbabwe and other oppressive countries once the foreign precedent was set. The third reason might stem from more-or-less the same kind of impulse that makes people choose to be vegetarians; i.e. that it is just fundamentally wrong no matter what the stakes.

    As an interesting aside, about a month ago I saw "Day of the Jackal" for the first time in well over 30 years and it featured a very brutal torture scene of a French-Algerian rebel who was involved in a plot to assassinate Charles De Gaul. It seemed pretty clear in the film that this was not a moral outrage - unpleasant, yes - but something that had to be done to protect the national security interests of France. I wonder if there had been any comment regarding the morality of torture from reviewers at that time?

  • Rocky Mountain

    I suppose there would be three objections to torture, however it is defined. First, some people would object to anything that GWB allowed or put forward as an intelligence-gathering tactic. Another reason would be a possible fear that such tactics would be indiscriminately used on our civil population possibly for retaliatory or political purposes a la Zimbabwe and other oppressive countries once the foreign precedent was set. The third reason might stem from more-or-less the same kind of impulse that makes people choose to be vegetarians; i.e. that it is just fundamentally wrong no matter what the stakes.

    As an interesting aside, about a month ago I saw "Day of the Jackal" for the first time in well over 30 years and it featured a very brutal torture scene of a French-Algerian rebel who was involved in a plot to assassinate Charles De Gaul. It seemed pretty clear in the film that this was not a moral outrage - unpleasant, yes - but something that had to be done to protect the national security interests of France. I wonder if there had been any comment regarding the morality of torture from reviewers at that time?