Friday, February 11, 2005

Torture and the President's "Core" Powers

Outsourcing Torture

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!

People Dead Today

Pakistan Dam-Burst Kills 60 -- At least 60 people have been killed after a dam burst its banks in heavy rain in south-western Pakistan.
Iraqi insurgent attacks kill many -- A car bomb exploded outside a Shia mosque northeast of Baghdad, killing at least 13 and injuring up to 40.
Iraqi police killed in shootout -- Iraqi police said they have also found the bodies of 20 truck drivers in their burnt out vehicles south of the capital.
American playwright Miller dies -- He was one of the most significant American writers of the 20th Century...His play The Crucible was inspired by the hysteria of the McCarthy witch hunts which he became embroiled in.

There's more, many more, I'm sure. There always are.

Thursday, February 10, 2005

Knitting without a Net

Strathaven folk knit themselves a room

Holy cow. That's like the ultimate in free-fall knitting. I'd love to see this in person.

Wednesday, February 09, 2005

No oversight? No way!

Tell Your Representative NO

On Thursday, February 10th, the House of Representatives will vote on a bill that would grant the Department of Homeland Security sweeping new authority to waive all federal and state laws, including those that protect public health, worker safety and the environment, for the construction of roads, walls, fences and other barriers along U.S. borders. Under this sweeping waiver, the DHS would be free to undertake large construction projects without oversight, accountability, or legal constraints anywhere along our borders -- from the densely populated border communities in California, Texas and Washington, to the remote wilderness of Cabeza Prieta National Wildlife Refuge in Arizona, to the pristine islands and waters of the Boundary Waters Canoe Area in northern Minnesota.
Federal and state laws that protect citizens from criminal activities and negligent business practices, as well as those that ensure civil rights, public health and safety and environmental protections, could be disregarded. Long-standing laws like the Clean Water Act, Clean Air Act and Safe Drinking Water Act could be ignored, putting communities at risk for increased pollution. Additionally, our border areas contain an enormous amount of protected federal lands, including national parks, wildlife refuges, forests and wilderness areas, that could be subject to this provision.
Border security can be ensured while shielding the public and the environment from harm and, indeed, the DHS has not demonstrated a need to waive any laws. In fact, not a single congressional hearing has illustrated a need for these broad exemptions. Never before has any federal agency been provided with such a breadth of unjustified exemptions from our laws.

from twistedchick

Happy New Year!

ChĂșc Mừng Nǎm Mới

Monday, February 07, 2005


I hurt my right hand over the weekend and my typing is a little I'm taking it easy this week. (Translation: check in after Valentine's Day. I might have something amusing to say then. Fortunately, I didn't cut my flexor tendon, and if I have nerve damage, it's probably no worse than the effect I get on my left hand, courtesy of being hit by a car 12 years ago. Ah, life. The trick to living is to persist in not dying when bad things happen to you.)

However, I've been meaning to comment on a couple things that occurred to me, and I realize I'll probably never write anything extensive, I simply don't have the degrees in anthropology and sociology for the first, and from one perspective, am studying parts of the second by virtue of being in law school.

1. Primate grooming habits lie at the base of the Barbie phenomenon.

2. Republicans basically believe in the divine right of kings. Why else would they treat poor people as morally inferior? Wealthy people = blessed by God.

Nice work if you can get it.