Balkinization  

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.

Comments:

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.
 

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.
 

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.
 

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