...unless The Man doesn't like the law in question, apparently.
I'm hardly the first, although perhaps not the last, to make note of the latest
DoD torture memo that's the subject of a piece in today's Wall Street Journal and a flurry of activity in the blogosphere.
Atrios, among others, focuses on a clause he thinks provides for
'an elected dictatorship,' which advises that
Didn't know that, did you? Don't feel bad. Neither did the framers of the Constitution, who charged the President with enforcing laws, leaving it to Congress to create or eliminate them, and the judiciary to interpret them.
Phil Carter at
Intel Dump finds even more far-reaching implications, as he examines the
"...fine line separating legal advice on how to stay within the law, and legal advice on how to avoid prosecution for breaking the law," and finds the Dod on the law-breaking side, writing that Marshall has more, as does
Billmon and there's doubtless more to come.
I just want to know, why does our government hate our Constitution so much?
Civilian or military personnel accused of torture or other war crimes have several potential defenses, including the "necessity" of using such methods to extract information to head off an attack, or "superior orders," sometimes known as the Nuremberg defense: namely that the accused was acting pursuant to an order and, as the Nuremberg tribunal put it, no moral choice was in fact possible." (emphasis added.)
Now I have to admit: The idea of using the Nuremberg trial as a field guide for committing war crimes and getting away with it has never occurred to me before. But then, I'm not a Bush administration legal appointee. It's probably worth remembering, though, that the Nuremberg Tribunal wasn't particularly impressed by the "I was only following orders" routine: 12 defendents hanged, 3 sentenced to life, 4 given long prison sentences, only 3 acquitted. If I were Donald Rumsfeld, I don't think I'd like those odds.
It's interesting to compare this doctrine of executive supremecy - really, a modern-day version of the Fuehrerprinzip - with the more constricted view taken by conservative legal scholars when Clinton’s lawyers advanced the notion that perhaps, just maybe, the chief executive shouldn’t be subject to private harassment suits during his term in office. But, as we all know, 9/11 changed everything.
The question, however, is whether everything will change back the next time a Democrat takes the oath of office. Having asserted – and made such fateful use of – the dictatorial powers outlined in the Pentagon’s legal torture guide, how comfortable will our GOP legal warriors be when and if the opposition lays its hands on those same powers?
Republicans tend to gravitate towards this sort of thing. During Watergate, the Nixon administration made similar claims; essentially, they said that if the President orders something to be done (even if it is against the law, as in breaking and entering, or covering up same), then it is by definition legal to do so. Striking down such claims was one of the important achievements of Watergate. Now, under W, this same dangerous nonsense is back.
Of late I've concluded that the greatest threat to the U.S. Constitution, and to the rule of law generally, is the Republican Party.
[Via Infoshop News]
