Above the Law?

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 of 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.