Liberty in America
columnist: rtbohan

Topic: Iraq
The Yoo Memorandum and the Consitution

---

The now rescinded Yoo memo, which argued the right to use harsh interrogation methods has now been released.

---

by rtbohan
(Libertarian)
Sunday, April 6, 2008

The Yoo memorandum, the legal opinon by which the government authorized the use of harsh interrogation methods, at least some of which most people regard as torture, has now been released. The memo itself has been rescinded and no longer is the legal justification for the methods, but the memo raises questions about the extent that respect for the constitution and the legal system exist within the Bush administration.

The memo bases the authorization of harsh interrogation methods on the power of the President as Commander in Chief of the Armed Forces. Certainly this position gives the President the right to issue orders to the military, but it does not guarantee that they are lawful orders, a key point. The memo says that the President is not bound by U.N. treaties banning torture. The memo explains this by saying that ""customary international law is not federal law, and the President is free to override it at his discretion."

There are two problems with this. The first is that a treaty is not "customary law." Its is a treaty, and a treaty, according to the Constitution, does have the force of law. The second is that, while the President is the Commander in Chief of the militar and the leader of foreign policy, according to the Constitution and the Supreme Court, it is the Supreme Court which has primary jurisdiction on all questions arising under international law.

The memo goes on to reassure the interrogatorrs that even if criminal prosecutions arise, the interrogators can claim they they were acting under necessity or in self defense.  National self defense is a justication for state actions under customary international law.  But individual persons are not under international law.  And it would be hard to argue that the interrogators were acting in defense of their personal safety in applying methods of torture.

Finally, the entire basis of the memorandum is that the President is free to act as he chooses under the War Powers of the President.  The Courts recognize the idea of war powers, but they have also ruled that the war powers are not without their limits. 

In any case, since the constitution assigns the power to declare war to the Congress and the Congress has not declared war, the entire war powers argument is on shaky ground. Any additional powers of the President based on a state of war require declaration of war by the Congress.

Did you like this article?
If you did, Thumb It!
1 thumb so far

2008 rtbohan, all rights reserved.
Published: Sunday, April 6, 2008
Last modified: Sunday, April 6, 2008

The views expressed in this article are those of rtbohan only and do not represent the views of Nolan Chart, LLC or its affiliates. rtbohan is solely responsible for the contents of this article and is not an employee or otherwise affiliated with Nolan Chart, LLC in his/her role as a columnist.

Report violation by rtbohan of Nolan Chart LLC's terms of use policy.