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View Diary: Newsweek: Yoo said Bush could order civilian massacres! (299 comments)

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  •  Which Implicit Powers? (1+ / 0-)
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    lotlizard

    The diary makes a lot over the part about wiping out villages, but here's the important part that sets the context:

    ...that the president's wartime powers were essentially unlimited and included the authority to override laws passed by Congress, such as a statute banning the use of torture...

    This isn't about the question of whether the President could order a village wiped out pursuant to his lawful powers to conduct war, or at least war operations with the authorization of Congress. It gets dicey in a constitutional sense when we talk about operations outside an actual declaration of war, but let's put that aside.

    The interview was about unlawful powers. In other words, OPR was asking if the President could commit crimes (things forbidden by law). Yoo's enthusiastic answer was that yes, the President could do anything he damned well pleased because he was "commander-in-chief".

    (As I point out elsewhere, this is actually a very limited power. He isn't commander-in-chief of the nation. He isn't given any kind of blanket authority by this clause, if you read the Constitution. Don't rush to do that.)

    In this context, Yoo is saying that the President can order torture to be committed, even though this is contrary to U.S. law. He can't. It isn't even vaguely constitutional. If you read the Constitution, itself, that is. It doesn't even depend on what Congress does. Torture is just outside the bounds of the Constitution itself. But, beyond that, if a law is properly formed under the Constitution (passed by Congress, signed by the President, and not itself unconstitutional), then it is pursuant to the Constitution. Why would a President be able to override it? How does he get superior authority?

    Not to put too fine a point on it, the Constitution gives branches of our government lots of authority, but the implicit thing is that they are supposed to carry them out pursuant to powers granted in the Constitution. If it thought that they should have blanket authority, all it would need to say is something like "by any means necessary" or words to that effect. There are no such implicit powers. The only component of our system that gets implicit powers is "the people". They are sovereign and hold all powers. The government gets limited powers granted on our behalf.

    If you want to argue the opposite position, then perhaps you should consider this: Does it make sense to let the President be above the law? Does he get to commit what would otherwise be illegal acts just because he's President? If you say Yes, then how do you square that with "that all men are created equal"?

    •  loved your analysis and refutation... (0+ / 0-)

      ...fwiw, sorry I missed rec'd-ing it! Have you thought about diarying it? Very succinct and cuts to the heart of Yoo's rationale. In a word, DEVASTATING!

      "Peace is the protector of genius. War is the mortal enemy of both peace and genius."

      by ImpeachKingBushII on Tue Feb 23, 2010 at 03:56:47 PM PST

      [ Parent ]

      •  Better Late Than Never (0+ / 0-)

        Well, speaking of being late to the party...

        I should just mention that I wrote most of (all of?) the Dkosopedia article on Prosecuting Officials for Crimes. So, I think this is kind of covered there. But then, I believe this diary is now listed as a reference. So, that would make these comments all included, too.

        Now, if we could just get enough people to care!

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