A Brainteaser About "Acting Above the Law"

Brian Tamanaha

Assume that the President has the legal authority as Commander in Chief to ignore or violate military codes, federal statutes, and international conventions when leading the United States in the global war on terror. This is a large assumption, admittedly, but go with it (as the OLC did). Assume, further, that in the exercise of this legal authority the Bush administration orders, for example, that we engage in torture and indefinite detention of individuals without legal charges, contrary to national and international law (not that we would do such a thing).

So here's the puzzle: When he orders that the law be violated, will the President be acting lawfully? Will he be abiding by "the rule of law"? Or will he be acting "outside of and above the law"?

We can make the question even harder by adding the assumption that a Court--not just an OLC lawyer--has actually ruled on the President's assertion of such power, agreeing that the President has the legal authority to order violations of the law (domestic and international).

You might say, as a legal positivist would, that the law grants the President the legal authority to violate the law. But putting it that way contains a telling equivocation: "legal authority to violate the law."

Ordinary criminal law does not recognize "legal authorization" as a legitimate defense for criminal conduct. And this argument carried no weight at the Nuremberg trials. But we're talking about the President of the United States here, defending the nation. [This is a pseudo-philosophical inquiry, so please save the outrage, as I am not suggesting by these analogies that Bush is a criminal.]

So, again, let's ask: assuming that he has the legal authority to order violations of the law, would President Bush be complying with the "rule of law" when he did so?

It seems clear--as the very phrasing of the question indicates--that he would be violating the law, acting above the law, not complying with the rule of law, even if he had such legal authorization. This makes sense not just linguistically, but also because the "rule of law" means that government officials, including sovereigns, are bound to abide by the law, like everyone else.
Posted 9:15 PM by Brian Tamanaha [link]