Monday, January 02, 2006

Above the law

President to Congress: "I'll obey the law when and as I choose."

Actually, with reference to torture, he wrote:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.


Translated, that means the same things.

The Founding Fathers did not intend to create a president with absolute military authority. They very specifically divided those powers between the president and Congress. Commander-in-Chief does not mean what President Bush seems to think it means.

Not that this is news.

Yes, we have a "unitary executive branch," but we also have a bicameral legislative branch which passed a law, and he just signed it. That means he's bound by it all the time, not just when he feels like it. He and his subordinates are forbidden from torturing people, just as they are forbidden from ordering ethnic cleansing, summary executions, or wholesale invasions of foreign countries. Not because of the president's good graces, but because Congress has the power to regulate the military.

As for what soldiers are supposed to do if given an order that that would conflict with the law, I can't say. Marty Lederman has a fascinating piece on what a government lawyer should do if ordered to take part in a legal scheme he/she thinks is illegal.

His answer is basically to suck it up, which has a certain merit to it.

The other option is what we'll call the Nuremberg option, after the fourth principle of the Nuremberg war crimes tribunals. No, we aren't talking war crimes, but the issue is what to do when given an immoral, illegal, or unconstitutional order.

Several anonymous NSA employees are being investigated by the DoJ for leaking this story to the New York Times. Fine. They broke the law. The information was classified, and they released it. Daniel Ellsberg could have spent his whole life in jail for leaking the Pentagon Papers, and he did so knowing the consequences. (Overzealous actions by the government, including illegal phone taps, prevented his conviction.)

That's how it's supposed to work. I can't find the citation, but I believe that Thomas Jefferson expressed a willingness to accept an impeachment for exceeding his authority in the Louisiana Purchase, but he made the deal anyway. Time was short, and things moved fast. He exceeded his authority, was contrite, and explained himself to Congress as fast as possible.

If there were exigent circumstances, this would all be different. If the administration did stupid things on the afternoon of Sept. 11th, fine. The 12th was pretty wild, too. But 4 years later, circumstances aren't exigent, and we have a system of checks and balances for a reason. Individuals deep in the bureaucracy aren't a formal part of that system, but I can't believe the Founders didn't envision some personal reflection from government employees.

I disagree with the conclusion Marty draws, though I appreciate the conflict he's addressing. There are other options than leaking or behaving in a manner you find unacceptable. Resigning in protest and refusing to follow the order are among the options. Both are honorable, neither is explicitly illegal, and both bring the issue to a head. I'm sure there are other ways.

No one is above the law, and it's the duty of each individual to follow the law, not just to blindly follow orders.

Crazy talk, right?

Tell that to John Ashcroft. For all my fear that he's distilled evil, he and his top deputy apparently refused to approve the domestic spying:

Accounts differed as to exactly what was said at the hospital meeting between Mr. Ashcroft and the White House advisers. But some officials said that Mr. Ashcroft, like his deputy, appeared reluctant to give Mr. Card and Mr. Gonzales his authorization to continue with aspects of the program in light of concerns among some senior government officials about whether the proper oversight was in place at the security agency and whether the president had the legal and constitutional authority to conduct such an operation.

It is unclear whether the White House ultimately persuaded Mr. Ashcroft to give his approval to the program after the meeting or moved ahead without it.


The latter possibility is the most chilling one to consider, of course.