he may disregard that law"
Respecting the Spirit and Letter of the Law On the Nomination of Alberto Gonzales to be Attorney General of the United States
by U.S. Senator Robert C. Byrd
http://www.commondreams.org/views05/0202-32.htm<snip>
I note in passing that the “torture” memo was written in 2002 by then-Assistant Attorney General Jay Bybee, who is now a federal judge on the Ninth Circuit Court of Appeals. God help the Ninth Circuit. I would like the record to reflect that 18 other Senators and I voted to reject the nomination of Jay Bybee to be a federal judge, a decision I, for one, do not regret.
The Bybee memo drew universal condemnation and scorn for at least two of the legal opinions that were included in its text. First, it described torture as being prohibited under U.S. law in only very circumscribed circumstances. It defined torture so narrowly that horrific harm could be inflicted against another human being in the course of an interrogation overseas and not be prohibited. According to the memo, unless such acts resulted in organ failure, the impairment of a bodily function, or death, they could be considered legal. In fact, the first page of the memorandum states, “We conclude that the statute
, taken as a whole, makes plain that it prohibits only extreme acts. . . This confirms our view that the criminal statute penalizes only the most egregious conduct.”
The second but equally shocking and erroneous legal conclusion reached in the so-called “torture” memorandum states, “We find that in the circumstances of the current war against al Queda and its allies, prosecution under Section 2340A <– the relevant provision of U.S. law prohibiting torture –> may be barred because enforcement of the statute would represent an unconstitutional infringement of the President’s authority to conduct war” as the Commander-in-Chief. This means the White House believed that a President can simply “override” the U.S. law prohibiting torture, just because he disagrees with it. He can ignore the law by proclaiming, in his own mind, that the law is unconstitutional. Not because a court of the United States has found the law to be unconstitutional, but because a war-time President decides he simply does not want to be bound by it.
What an astounding assertion! Think of it! A President placing himself above the law, in effect, crowning himself King.
This outrageously broad interpretation of Executive Authority is so antithetical to the carefully calibrated system of checks and balances conceived by the Founding Fathers, it seems inconceivable that it could be seriously contemplated by any so-called legal expert, much less attorneys of the U.S. Justice Department or the White House Counsel.
Has this White House no appreciation for the struggle that this nation endured upon its creation? Can it really believe that a President can circumvent the will of the people and their Legislature by adopting and disseminating a legal interpretation that would, in the end, protect from prosecution those who commit torture in violation of U.S. law?
Alexander Hamilton in Federalist No. 69 described in detail exactly how the American system can and must be distinguished from the British monarchy. He wrote:
there is no comparison between the intended power of the President and the actual power of the British sovereign. The one can perform alone, what the other can only do with the concurrence of a branch of the Legislature.
No one man, no President, not his White House Counsel, nor all of the attorneys in the Office of the Legal Counsel in the Justice Department can, on their own, act in contravention of a law passed by Congress.
No President can nullify or countermand a U.S. law to shield from prosecution those who would commit, or attempt to commit, torture. But that was the result sought by the White House.
When asked by Senator Durbin if he still believes that the President has the authority as Commander-in-Chief to ignore a law passed by Congress -- to decide on his own whether it is unconstitutional or to simply refuse to comply with it -- Judge Gonzales stated that yes, he believes it is theoretically possible for the Congress to pass a law that would be viewed as unconstitutional by a President, and, therefore be ignored.
And even though the torture memo was replaced by a new memorandum on December 30, the replacement memorandum does not reject the earlier document’s shockingly overly expansive interpretation of the President’s Commander-in-Chief power. Instead, the new memo states that, because that portion of the discussion in the earlier memo was “unnecessary,” it has been “eliminated” from the new analysis.
Particularly disturbing is the fact that, although the new analysis repudiates the earlier memo’s conclusion that all but extreme acts of torture are permissible, Judge Gonzales could not tell us whether this repudiation of prior policy has been communicated to those who are today doing the interrogating.
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