Yoo also argued that the Constitution granted the President plenary powers to override the U.N. Convention Against Torture when he is acting in the nation’s defense—a position that has drawn dissent from many scholars. As Yoo saw it, Congress doesn’t have the power to “tie the President’s hands in regard to torture as an interrogation technique.” He continued, “It’s the core of the Commander-in-Chief function. They can’t prevent the President from ordering torture.” If the President were to abuse his powers as Commander-in-Chief, Yoo said, the constitutional remedy was impeachment.
I'm studying Constitutional Law right now, and I have to say, I'm stunned. Yoo is asserting that the President's power to torture is one of his "core" powers. "Core" powers, as we've discussed them in class so far, are those that are so central to [executive, judicial, legislative] branch's existence as to be non-delegable to another branch.
For example, the legislative branch's job is to make law. The judicial branch's job is to interpret law, and the executive's job is to execute or enforce it. Congress passed a law in 1934 to delegate *some* law-making authority to the judiciary, in order that the judiciary could promulgate the Federal Rules of Civil Procedure. (How to serve process on someone, and stuff like that. And so they formed a committee, and came up with rules, and then Congress voted to accept them - and make them law.)
If Congress passed a law tomorrow dumping all their lawmaking power onto the executive, that would violate the structure defined by the Constitution - it would throw off the system of balancing tensions between three bodies - and that would be unConstitutional. They can't abdicate that "core" power.
What Yoo is saying, is that torture is within the President's "core power" as Commander in Chief.
Naturally, I disagree. I'll even cite Hamdi v. Rumsfeld when I do it. I'll even cite Justice Scalia, considered rather conservative, in the process.
Analogizing from Scalia's dissent* in Hamdi v. Rumsfeld (and the reason he dissented is because he disagreed with the plurality opinion that the Authorization to use Military Force granted the Executive the power to detain Mr. Hamdi, among other things):
The Framers of the Consitution would have to be out of their minds to permit such (torture) to be a core power, they couldn't even stomach the idea of giving the Executive permanent military power. But power over the most vital liberty interest of them all? Are you nuts?
*"In the Founder's view, the 'blessings of liberty' were threatened by 'those military establishments which must gradually poison its very fountain.'...Except for the actual command of military forces, all authorization for their [meaning US armed forces -- Sid] maintenance and all explicit authorization for their use is placed in the control of Congress under Article I..."
Know what he's saying right there? Concentrations of power threaten liberty.
But Yoo apparently thinks that's OK, when the Executive has his CiC hat on. So, torture away, it's the Executive's core function!
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