Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Wednesday, June 23, 2004

International Law and Torture Memoranda

The Bush Administration, via the Ashcroft Justice Dept., has taken the following positions that are incorrect as a matter of US law: (1) The president can unilaterally suspend the Geneva convention; (2) The President, as commander in chief, is not bound by law in the prosecution of war. These two legal interpretations lead to the belief in the Bush administration that he could, if he wanted to, order torture during wartime.

Both contentions are false. True, the United States takes a "dualist" approach to international law, which means that US law supersedes international law. States with a "monist" approach (every other country outside the Anglo-American legal system) believe that international law trumps domestic law. Thus, Congress may abrogate international law if it chooses. The Supreme Court has repeatedly upheld this prerogative. However, the President alone may not do so, unless specifically authorized by law.

The constitution does, it is true, make the President the commander in chief of the armed forces. But nowhere in the document does it give the armed forces (or their C-in-C) the right to abrogate US law for any reason. The principle that military authority is subordinate to civilian authority is so old that it is unbelievable that the President should question it. But in the post-9/11 world, there seems no principle of law sacred anymore. The military must follow US law, and there is no exception to that.

The bottom line is that there are no "Emergency Powers" in the US Constitution. This is for good reason. It has been repeatedly observed that emergency powers tend to lead to the creation of universal emergency. This is the Bush administration's formal position as laid out before the Supreme Court in April: There is a war on terror, and the whole world, including the USA, is a battlefield, so that on this battlefield, the military is constrained by no authority. That is why they can seize Jose Padilla, a US citizen, on US soil, and hold him indefinitely without charges.

No lawyer worth his salt would ever agree with the Justice Department's stance today.

5 comments:

Anonymous said...

Let me get this straight. The Bush administration is arguing that because US law supercedes treaty law, Bush can unilaterally suspend the Geneva Convention. And because Bush is Commander in Chief, he can declare the entire planet (including US soil) a war zone and thus is not bound by US law either.

I'm curious if anyone on the Supreme Court has asked the Bush administration what - if any - legal constraints they feel bound by at all?? Are they arguing that they have unlimited executive power?

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