Wednesday, October 24, 2007
When Can The President Legally Break A Law? No To Mukasey
On the second day of confirmation hearings before the Senate Judiciary Committee, Mr. Mukasey went further than he had the day before in arguing that the White House had constitutional authority to act beyond the limits of laws enacted by Congress, especially when it came to national defense.Does Mukasey believe that Article two of the constitution is pre-iminent over the rest of the document? The President draws his war time powers from article two, but no one can cogently argue that the rest of the constitution is somehow subservient to that article, least of all the nominee to be Attorney General.
He suggested that both the administration’s program of eavesdropping without warrants and its use of “enhanced” interrogation techniques for terrorism suspects, including waterboarding, might be acceptable under the Constitution even if they went beyond what the law technically allowed. Mr. Mukasey said the president’s authority as commander in chief might allow him to supersede laws written by Congress.
In the case of the eavesdropping program, Mr. Mukasey suggested that the president might have acted appropriately under his constitutional powers in ordering the surveillance without court approval even if federal law would appear to require a warrant.
“The president is not putting somebody above the law; the president is putting somebody within the law,” said Mr. Mukasey, who seemed uncomfortable with the aggressive tone, occasionally stumbling in his responses. “The president doesn’t stand above the law. But the law emphatically includes the Constitution.”
If the rest of the constitution is to be held in equal value to article two, we need to look at how a law becomes a law in order to determine if that law must be followed. This can be found in article one: Congress passes the law, and if the President thinks, for whatever reason (including the belief that the law violates the constitution) that the law is not acceptable, he/she may veto it. If the law is vetoed Congress may override that veto by a two thirds margin. The only further recourse at that point would be for the President to challenge the constitutionality of the law in the judicial system. Thus, when Congress passed FISA, and the President signed that law... the issue for all intents and purposes must be considered settled.
If a future President were to consider a particular law unconstitutional, does that give him the right to defy the constitution in turn, by proceeding as if article one were not in effect? How can we allow the President to be the sole arbiter of what is or is not constitutional if while making that determination he blatantly violates fundamental constitutional precepts, and tries to do so in secrecy so that his illegality is never exposed to the separate branches of government.
Mukasey also makes a dubious point regarding the President's war time powers to determine the treatment of captives in time of war. Far from gaining rights in this particular area from article two, the treatment of prisoners is particularly designated in the constitution as being guided by rules determined by Congress, in the same clause which gives Congress the sole ability to declare war.
There can be no doubt as to the legality of waterboarding based upon the fact that the United States has prosecuted people as war criminals for that particular act. It would be inconcievable that a war crime, if commissioned by another nation, is allowable if it is the President who orders it. The President is lawfully obligated to treat detainee's humanely both by international treaties ratified by the Senate and laws passed by Congress which cover the treatment of these prisoners.
The notion that Mukasey is positing giving the President rights in contravention of the constitution and duly enacted laws should be an automatic disqualifier for Mukasey's nomination.
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