Is the president outside the law?

1. What are the odds that it?s always been within the law that the President has the right to flat-out ignore the law, but we?ve just never noticed it before? Wouldn?t Richard Nixon have noticed it, at the very least? All things considered?

(Sometimes, in extraordinary circumstances, Presidents have bent or broken the law, and had to square it afterward. There?ve been times when it didn?t square. Those were, not surprisingly, handled under the law. But there?s an unbridgeable gap between (a.) acting outside the law and having to answer for it, and (b.) declaring that you?re not answerable to the law for your actions. That second one is a breach of our entire legal system.)

While I understand the point she's trying to make, our Constitution does in fact set the President outside the law, to a certain extent, by way of the Presidential Pardon. To whit:

The President [...] shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Now, there are obviously some tricky definitional questions here, but it's clear that the President can legitimatize any "Offence against the United States" by pardoning the offender. Most Presidents make some use of this power in the interests, more or less, of justice for people wrongly convicted or harshly sentenced. However, it could be wielded as a much more potent weapon should a President choose to do so. While the President can not pass a law legalizing torture without the assent of Congress, he can order soldiers to torture someone and prevent any punishment of their actions by means of a pardon.

The limitations on the power of the pardon are open to interpertation. In cases of impeachment, obviously, the President cannot pardon himself; but the phrasing could also be read to prohibit pardons more tangentially related to an impeachment proceeding. (Ford's pardon of Nixon, after the latter resigned, would be arguable under this interpertation). But if the President is not impeached, he can order criminal actions and issue pardons with impunity.

The other potentially tricky area is the definition of "Offences against the United States". Pre-Civil-War, I would think that the President would not have the power to pardon a state crime; the governor of that state would be the office of final appeal. In the modern day, that's clearly not an actionable interpertation.

It's also possible that the term would preclude pardons for civil matters, as those are offences against an individual. It's even more likely that this clause would exclude offenses against another government, and arguable as to what would happen if the President tried to pardon someone for actions that violated an international treaty (as such would be an offense against the other signatories), although I understand that the usual practice for treaties is to pass "implementing regulations" which would probably themselves be amenable to pardon.

In the specific case of torture, there's potential interaction with the 8th Amendment (which forbids "cruel and unusual punishments"). Clearly, Congress has no power to authorize torture. But a violation of the Constitution would presumably constitute an offense against the United States, and as such, would lie within the power of the President to pardon.

So how does this play out? Well, the Guatanimo Bay prisoners are on foreign soil (not within a state jurisdiction), on a US military base (United States legal system), and are probably not protected by the Geneva Conventions (not being uniformed military). Thus, I believe the President could order torture and then pardon those committing it if he was so inclined and if he was not impeached for doing so.

Abu Gharib would be a similar case if the soldiers involved were acting under orders and the President chose to give them the protection of a pardon, at least until the handover of power to the Iraqi government takes place. After that point the territory would be under the authority of a functioning foreign government and, thus, crimes committed would no longer be solely offenses against the United States, but also against the local jurisdiction.

It's worth noting that this is a legal argument, not a moral one. There is no moral justification for torture; it's a really, really bad idea for lots of really, really good reasons. Not least among them that we do not want to sink to the level of murderous terrorists.

As an aside, in my moral system, the question of torture is not a simple dispute over justification. Nothing justifies torture. An action that is wrong is always wrong. But just because an action is wrong does not mean it should never be done. An individual can make the choice to take an action that he knows is wrong, and willingly accept the consequences of that action, because he feels the action is worth the moral and legal cost to himself. That doesn't make the action right, but it does provide a framework for dealing with extraordinary situations. I think it's that framework that Teresa is referencing above in (a).

At first, that sounds like the ends justifying the means... but there is no justification involved. The individual on the scene has to make his own judgement and bear the consequences. Only that person can decide whether to sacrifice his own moral standing, and suffer the legal consequences of his choice, in order to preserve something else of value to him. Not an easy choice to make at all.

If that means tortoring prisoners in the hopes of stopping a terrorist attack, the person who makes that choice should understand the sacrifice they are making and calmly accept a conviction and full punishment in the appropriate venue.

I believe that the idea of a pardon by the executive is based at least in part on this idea: that the capability to legitimatize illegal actions after the fact, even in the face of public criticism, is an important one. The law cannot foresee everything.

The question in (b) is also worth considering. The pardon puts the President and his agents outside the law in at least some respects, but within a legal framework. We have had Presidents declare themselves entirely outside the law in the past (with the most significant example probably being Lincoln during the Civil War). Other Presidents in the past have packed the Supreme Court until it gave rulings acceptable to the administration. I'd say that a President declaring himself outside the law is not entirely unheard of, albeit thankfully rare in our history so far. I do not think it is a breach of our legal system so much as an intended avenue for emergency actions, balanced by the power of impeachment.

2. When your local returns been tabulated on Election Day, what action can you take if you think the voting machines in your area have been rigged to give false results? Any suggestions?

To state the obvious, demand a recount under whatever existing laws and procedures allow for it, and file a lawsuit if you don't trust the results of the recount either. It should not be hard to convince a judge that electronic "recounts" aren't actually "recounts", they are just the same count done over again.

To state the less-obvious, and in full appreciation that Teresa may not appreciate this idea... there's the solution employed in the Battle of Athens, Tennessee.

3. Given that (a.) anyone who has any expertise in intensive interrogation knows that tortured prisoners will tell you anything they think will get you to stop hurting them; and (b.) given that it?s a disastrously stupid move to plan your operations and allocate your resources on the basis of such worse-than-nothing ?intel?; and (c.) given that we have a fair number of experts who know all those things who are working in our government and military who know all those things in detail, what do you suppose was the actual point of getting advance permission to torture prisoners?

Well, I've got a couple points to make in response to this. First, though, I don't have any expertise in intensive interrogation, and I don't think Teresa does either. The idea that someone (well, short of a saint) being tortured will tell you anything they think will make the torture stop is undoubtedly valid to some degree, but how far does it go? Clearly, someone who knows nothing cannot provide useful information under torture, and so it's pointless to torture them. But what about someone who does have valuable intelligence?

Even if that person tells all sorts of other lies, torture seems likely to bring out the truth along with anything made-up. The victim is probably going to be saying anything, including the actual intelligence information being sought. The question then becomes how to weed truth from falsehood, and this requirement is not a terribly difficult one. Certain things -- names, phone numbers, addresses, bank account numbers -- can be verified. The results of an interrogation can be compared to the results of other interrogations along with existing intelligence, signal intercepts, known agents, past movements, etc.

In other words, I don't think anyone with expertise in intensive interrogation would be taking everything he was told at face value. Even the stereotypical villians in the novels Teresa edits know the classic interrogation trick of asking some questions you already know the answers to. Sifting the wheat from the chaff is just part of the job.

Secondly, on basing operations around information gained by interrogation: given the verification procedures above, it's not as crazy as it might seem. Once you have figured out which results of the interrogation are credible, then you can decide how to act on the information, factoring in the perceived reliability. Again, assuming a naive analysis is a mistake. The question of handling information from an untrustworthy source is not a new one in the world of intel, and there are undoubtedly many ways of addressing it that laymen would not be aware of.

Of course, in order to not be wasting your time, you don't want to be torturing someone who actually doesn't have any information. But snatching someone off the street at random is a definite no-no; interrogate only your high-certainty targets.

Third... while the media has been spinning this memo as some kind of permission slip for torture, I doubt that is even close to the original reason behind the memo itself. Knowing how the government leaks information, would you, as President, be stupid enough to commission a permissive opinion on torture and trust that it would not get leaked?

It's much more plausible to me that an administration dealing with the consequences of 9-11 and detaining a number of known-or-suspected terrorists would want a legal opinion defining where the line is. That is to say, what forms of interrogation are legal, and what forms are not. I can easily picture an official requesting a legal opinion on what would constitute illegal torture and what is a permissible interrogation technique.

In fact, I can easily picture such an official requesting multiple opinions, on a matter this weighty, and probably assigning the authors to deliberately slant their opinions; for example, tell the first lawyer to write as broad a recommendation as possible, the next one to write the middle case, and a third to write something narrow and certain. The combination provides many more options and much more nuanced information than what has been presented in the media as little more than a permission slip for torture.

To be honest, I would be much more concerned about a President who denied requesting any legal opinions on permitted interrogation techniques while undertaking the interrogations that we know are going on. An administration that requests a legal opinion, even an arguably strained one, is an administration that has demonstrated some concern for following the law. An administration that used intensive interrogation techniques either without an opinion on their legality or outside of the bounds of that opinion would be demonstrably rogue.

With no way of knowing whether the administration is remaining within those guidelines, the fact that guidelines were requested is far more comforting than imagining an administration that did not bother to ask the question. It's clear to me that asking the question is not an absurd thing for an administration to do at all.

On the other hand, I don't defend the answer that was given at all. I hardly need to go into the details of why.