Saturday, September 4, 2010

presidential power in wartime

I've come across an article that puts into words what I have long felt about the limits on presidential power in wartime. A father and son duo, both lawyers, one conservative and one liberal, have written a book condemning the use of torture but explaining ways to assess other executive actions arguably in defense of the whole community and nation.

I'm a Constitutionalist, not a Presidentialist like the Cheney-Addington-Yoo crowd. I believe that Congress has significant powers over the use of force at home and abroad. And I excuse the extra-Constitutional behavior of Jefferson and Lincoln because they asked Congress for ex post facto authorization.

I'm also highly dubious of arguments that torture sometimes works and is a necessary tool in those "ticking time bomb" scenarios that apologists envision. I guess I have faith that, if an official were willing to risk his career and risk severe punishment, a defense in court might prove successful.

That's where the Fried and Fried article is most persuasive. They suggest that Presidents can sometimes act illegally if they are willing to follow the model of civil disobedience and accept punishment for their illegal actions. But they can't keep those actions secret and they can't ever torture. In other words, they do not have inherent power because a war exists or a threat exists. They only have the right to be judged on their illegal actions.

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