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The Activist Executive Branch |
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Earlier this week, the Justice Department finally released a 5 year old, 81 page memo that attempts to provide legal justification for torture. It is an astounding document–Dan Froomkin describes it as “the ultimate expression of Cheney’s belief that anything the president or his designates do — no matter how illegal, barbaric or un-American–is justifiable in the name of national self-defense.”
In this blood-curdling memo, one point particularly caught me (once I pushed aside the images of brutality that came to mind). The memo argues that harm to an enemy combatant, which might otherwise be criminal, could be justified by “the executive branch’s constitutional authority to protect the nation from attack…“
The Constitution, of course, contains no such provision authorizing the executive branch “to protect the nation from attack.” All the Constitution has to say in this area is that “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States...” The Constitution assigns Congress the power to declare war.
Bush and Cheney are supposed to be sticklers for strict construction of the Constitution. Bush loves to rail against “activist judges” who supposedly deviate from the plain words of the nation’s founding document.
You might think that intellectual consistency would demand that Bush and Cheney explain why judicial activism is bad when it comes to Roe v. Wade or gay marriage, but presidential activism is apparently not a problem. As I have noted before, and as others have noted, the torture memo, and other actions taken in the name of the war on terror, demonstrate that this administration believes that the president has special unwritten constitutional authority associated with his role as Commander in Chief that permits him, or people acting for him, to violate the law.
In fact, the Constitution is quite clear on this point. The president has a duty “to take Care that the Laws be faithfully executed…” It is breathtaking that this administration believes it has the power to break the law when it decides (or claims) doing so is necessary to protect the nation. What is just as breathtaking is that we have let the administration get away with this position for so long.
This is a profound and elegant summation of all that is wrong. Please consider submitting it to a NYT, Asia Times, Guardian or WaPo type national media venue as an Op-Ed. It would move the public discourse forward in its stark simplicity and recounting of current events in their horrific context.
Agreed, it is a great reframing of the right-wing “activist judges” meme. It needs to get out there.
Thanks very much–appreciate the comments. I will definitely see what I can do in terms of getting it out there–and glad to hear any further suggestions.
thanks