Monday, August 01, 2005

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.


Inter armes, silent leges. These questions are decided by the winners after the war is over. With all due respect, I wish and I ask you also to wish, that the President do everything he can to win the war so that our children will have the luxury of debating the lawfulness of his actions 20 years from now.

Actually, I'm confused. We hypothesize 1, a statute that normally forbids doing X, and 2, another code of law that is hypothesized to make statute 1 inapplicable in certain circumstances Y.

Why isn't it clear that the president is acting quite lawfully according to law 2 (The Commander-in-Chief power makes other legal commands in applicable at the president's whim) and therefore according to law 1 as well?

I mean, luckily we have a lot of laws that bind the government as well as the people, but I take it that those things would obviously still be laws if they did not.

Will has it exactly right, and the point is so obvious that it amazes me that Brian can't see it.

I'm left to wonder if it is Brian's preference for legislative and judicial supremacy that causes him to miss such an obvious point, or whether it is some animosity to the particular executive we've been discussing. Whatever it is, it's rather embarrassing for such a preference to overwhelm one's good sense in such a fashion in public.

Suppose Congress in its constitutional authority passes a law giving a particular minimum sentence to a criminal offense. Suppose then that the courts sentence an offender in accordance with the law. Now assume that, before the sentence is up, the President orders that this criminal be released, based only only some stupid Article 2 clause about "pardons". Here he contradicts both other branches of government based not on law, but on some supposed Constitutional perogative.

"With all due respect, I wish and I ask you also to wish, that the President do everything he can to win the war so that our children will have the luxury of debating the lawfulness of his actions 20 years from now."

The President doesn't want to do "everything he can" to win the war. After all, that would require genuine sacrifice on behalf of the American electorate, including the rich and powerful. Instead, Bush is perfectly happy doing a half-assed job, shoving the entire weight of the effort onto the backs of those few who have no choice. You think Bush would encourage his own children to go to Iraq? What a laugh...

Besides, this isn't about simply preserving the "luxury of debating" a law. It's about maintaining our constitutional system of checks and balances. Make no mistake -- once the Executive Branch crosses that line, it's not coming back. The "war on terror" will never be over because terror is a tactic, not a defined enemy. If your "logic" allows the Executive Branch to grab power now because of the "war on terror", then by that same logic it will always have that power.

Perhaps all you care about is having the "luxury to debate." But most of us care about actual substance; there is limited use in debating historical counterfactuals, after all. Was it a mistake for the Reagan Administration to support Saddam Hussein all those years? Debate it all you want; no amount of argument will bring back the hundreds of thousands of innocent persons who died as a result of our support.

Brian, there's a predicate question that needs to be answered before your question can possibly be addressed:

What is "law" other than "those sets of behaviors that one is authorized to do by those manifestations of the political process that we decide are legitimate?

It would seem to me that if the president is authorized, by "legal authorization," to do a thing, it implies that our legitimate political processes must have authorized it. And if our legitimate political processes are the extent of "law," then it can not be a violation of "law" for him to do it, unless we posit the existence of some higher law that supercedes "legal authorization."

If you're breaking out the natural law theory, then go to it. I think there's more merit to natural law theory than a lot of people give credit for. But unless you want to endorse natural law, I don't see how you can get to a level of law beyond legal authorization.

Was that coherent? I don't know, I just dashed it off. Busy. Hope so.

Brian wrote that "Ordinary criminal law does not recognize "legal authorization" as a legitimate defense for criminal conduct." Well, yes it does (and please excuse me while I get a bit more practical than the other posts). Texas Penal Code Section 8.03(b)(1), for instance, provides "an affirmative defense to prosecution" to an actor who "reasonably believed the conduct charged did not constitute a crime and that he acted in reasonable reliance official statement of the law...made by a public official charged by law with responsibility for interpreting the law in question." Chapter Nine of the Texas Penal code affords a justification defense to prosecution "...if the actor reasonably believes...his conduct is required or authorized to assist a public servant in the performance of his duty, even though the servant exceeds his lawful authority." Probably there are similar defenses in federal criminal law, and in the penal codes of other states, and maybe in the Code of Military Justice. Thus, if a soldier or a CIA person, basing his belief upon the legal analysis of the OLC and US Attorney General, believes that torture under certain circumstances is not unlawful and acts in reasonable reliance upon the OLC and AG opinions, then he or she would, under federal provisions similar to those of the Texas Penal Code, have justification and mistake of fact as defenses. As for the President's authority as CIC, that is a Constitutional office, reflecting the supremacy of the civilian over the military community. But since the Constitution does not really define the practical implications of that office, we should expect a continuing tension between the Executive and Legislative branches as each tries to define the perogatives of the office. Actually, I should say we should HOPE for a continuing tension. In practical terms, Congress has almost always cratered to the President's view of things affecting war-making, thereby, in the view of many of us, abrogating legitimate legislative authority to the President. The quickest way in the world for Congress to limit the President's war-making, torture-making and locking-away power is to cut the purse strings. Congress has neither the political inclination nor the nerve to do that.

What Doran said. Ordinary criminal law certainly does recognize a "legal authorization" defense. If a cop shoots someone in a crime scene, and they contend that they were permitted by their authority as a cop to do so, they can't be convicted of murder.

The Nuremberg trials... I'm not sure what the legal theory was of the Nuremberg trials. The possibilities that come to mind include:
- The Nazis didn't have legal authority to do all the killings because they violated, e.g., the Weimar constitution and no un-coerced authority in constitutional interpretation like a court validated it;
- Natural law;
- Sheer force of having won.

My suspicion is that a combination of #1 and #2 was the actual legal basis of the Nuremberg trials, since the charter of the tribunal included both the authority to punish violations of international treaties (#1) and "Crimes against Humanity ... whether or not in violation of domestic law of the country where perpetrated." (#2).

One key factor in the discussion of legal authorization is the word "reasonably." If a suspect is firing on a police officer, it is clear that the officer could reasonably assume that he is legally authorized to shoot the suspect in self defense. The Nuremberg defendants could not argue that it was reasonable to slaughter so many innocent people.

Going back to the original question, I disagree with Will's post. If 1 forbids X and 2 makes 1 inapplicable in the case of Y, it is not perfectly clear that acting lawfully according to 2 makes violating 1 lawful. The 6th Amendment requires criminal defendants to have the right to trial by jury. Since we're speaking in so many hypotheticals, imagine that Congress passed a law that permitted the President to deny a criminal defendant access to a jury in cases of domestic terrorism. So the 6th Amendment would be law 1. Law 2 would be the one Congress passed. Y is domestic terrorism. The President, then, decides to invoke this law in the case of Timothy McVeigh. Just because the President would be acting lawfully according to the newly enacted law does not make it perfectly clear that he is acting lawfully according to the first. In this case, the second law would obviously be struck down in judicial review. Thus, going back to the earlier point, it would not be reasonable for the President to argue that he was acting lawfully because the second law permitted him to do so.

Michael: in your hypothetical, would it be appropriate to say that the president was acting "with legal authorization?" I'd say no. Our legal system only confers the status of "authorization" on those laws that are consistent with the constitution as interpreted by the courts. So it doesn't resolve the question.

Language is so tricky. And so picky. Michael says it would be unreasonable for the President to argue that he was acting lawfully because the second law permitted him to do so. But that is a very reasonable argument; he would have been acting pursuant to a regularly enacted law of Congress. The unreasonable argument of the President would be that the he was acting Constitutionally. Another unreasonable argument might be that the President had acted criminally. There is a distinction which must be kept in mind between acting unlawfully and acting criminally. A President might act criminally if he acted contrary to a criminal statute without some justification (defense, for instance).


Your hypothetical is confused because statutes can't overrule the constitution, and possess no legal force if not pursuant to the constitution, so in no way could your law 2 be said to overrule law 1.

Let's suppose, instead, that we passed a constitutional amendment providing "the president shall have the power to try accused terrorists without a jury, notwithstanding the other provisions of this Constitution."

Let's then suppose that the president went ahead and tried some accused terrorists without a jury, notwithstanding the other provisions of the Constitition. Would the president have acted Constitutionally? I cannot fathom how one could say no.

Will someone please define "with legal authorization" for me? Doran, your defense of Michael's hypothetical seems to rest on a definition of "with legal authorization" that merely implies that a duly constituted decisionmaker granted that authority, even if that decisionmaker had no authority to grant the authority in the first place.

By that logic, I, as a voter, could personally authorize the president to torture people, since my status as a voter gives me some "legal authority" notwithstanding the fact that said authority does not extend to the giving of war powers to the president.

(of course, the same argument could be addressed against judicial authorization, except that to my mind there's a real question about whether it is possible for a court beyond which one has not appealed to make a decision which is contrary to the constitution, since interpretive authority for same is in the courts...)

That's what I get for basing my post on bits and pieces instead of the entire discussion. I picked the 6th Amendment as an example because of the mention in the original post of indefinite detention. One source of confusion for my post was the mention of "federal statutes" in the original. Is the Constitution considered a federal statute? Or does that simply include legislation passed by Congress?

I had forgotten that the original post mentioned that a Court had ruled in favor of the President. In that case (i.e., the constitutionality of the legal authorization had been settled), then, yes, the President would be acting "lawfully."

I think I understand, though, where Brian is coming from in the original post. The rule of law binds citizens and government officials alike to abide by written laws. Once you have granted anyone the right to ignore or violate written laws, even if you can "lawfully" do so, you have abandoned the concept of the rule of law.

I guess I am trying to say that, yes, he would be acting lawfully. However, no, he would not be abiding by "the rule of law." If that makes sense...

Ick. Could I have written a more convoluted response? I think I need more mid-sentence disclaimers next time.

Mike, I'm afraid I still disagree. Either a law (written or otherwise) binds a person, or it does not. If a law does bind them, they are not acting "lawfully," nor "pursuant to legal authorization," not "consistent with the rule of law" if they violate it.

On the other hand, if a law does not bind them, they are acting all of the same ways even if they violate it.

The idea that a law can not bind someone, yet it is still unacceptable for them to violate it, is a little absurd. I'm not bound by the laws against noncitizens voting, because I'm a citizen. If I use my special privilege to vote, does that mean I'm placing myself above the law?

Laws have no characteristics other than their binding/non-binding effect (which is in itself a function of legitimacy and produces force, etc...).

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