Constitutional Law

Holder on Executive Power

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One issue where Eric Holder sounds pretty good compared to his predecessors in the Bush administration is executive power as it relates to fighting terrorism. In a June speech to the American Constitution Society, notes The Boston Globe's Jason Tuohey, Holder forthrightly condemned President Bush for breaking the law:

I never thought I would see the day when a Justice Department would claim that only the most extreme infliction of pain and physical abuse constitutes torture and that acts that are merely cruel, inhuman and degrading are consistent with United States law and policy, that the Supreme Court would have to order the president of the United States to treat detainees in accordance with the Geneva Convention, never thought that I would see that a president would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens. This disrespect for the rule of law is not only wrong, it is destructive in our struggle against terrorism.

Here, unlike in the area of drug policy, Holder is in sync with the opinions expressed by Barack Obama. Of course, it is always easier to worry about illegal extensions of executive power when the other party controls the executive branch. And you have to weigh Holder's speech against the less-rehearsed post-9/11 comments noted by Damon Root.

You can watch Holder's speech here.

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  1. It would be nice to have an AG who actually obeyed the law in stead of looking for justifications for violating it.

    We shall see.

  2. It is impossible to fail to treat the detainees in accordance with the Geneva Convention relative to the Treatment of Prisoners of War, because said convention contains no language that restricts treatment of any of the detainees in any way. They could be literally crucified without violating said Convention, because they are not POWs in accordance with Article 4 of said convention. Accordingly, none of the protections of said Convention apply. There is no actual doubt of that fact, and a mere assertion to the contrary by the detainees does not create one under Article 5.

    Given that, actual disrespect for the rule of law would involve, say, members of the Supreme Court substituting their personal opinions about what acceptable conduct is for what the law actually says. Or, say, giving a speech condemning the executive for applying the law as written, not as the speaker might wish it to be.

  3. Wow. You really *are* a warmongering lunatic.

    Truth in advertising.

    You are example #2, with number one having been taken by Snakes on a Plane.

  4. It is impossible to fail to treat the detainees in accordance with the Geneva Convention relative to the Treatment of Prisoners of War, because said convention contains no language that restricts treatment of any of the detainees in any way. They could be literally crucified without violating said Convention, because they are not POWs in accordance with Article 4 of said convention. Accordingly, none of the protections of said Convention apply. There is no actual doubt of that fact, and a mere assertion to the contrary by the detainees does not create one under Article 5.

    The Geneva Conventions do indeed describe the treatment of those on the battlefield determined to be neither prisoners nor enemies. They’re called “civilians,” and you better believe you aren’t allowed to torture them.

    That’s what I don’t get about the whole grey-zone thing – I don’t see how they aren’t enemy combatants. Al Qaeda has a stratification structure, they have a chain of command, they are in armed opposition – how are they any less combatants than the Viet-cong? Eviler, sure. But that doesn’t have a lot of bearing on the law.

    We’ve basically decided that none of our enemies in occupied lands are legal combatants. Even the Sadr Militia, who have ranks and uniforms (lame ones, but uniforms nonetheless) somehow do not get considered as enemy combatants, when they clearly qualify by the definition.

  5. Of course, it is always easier to worry about illegal extensions of executive power when the other party controls the executive branch.

    Ay, thar’s the rub.

    I remember a certain presidential candidate ripping into the Clinton administration for nation building and calling for a humble foreign policy back in 2000. How did that work out again?

  6. Other assorted links that may be of interest.

    First, apparently the New York city police have been wanting to use wiretaps obtained through FISA to do counterterrorism investigations at a municipal level. Not so shocking, I suppose, but apparently the DoJ, AG, and FBI have been blocking them. Civil liberties concern or turf war.

    Also, in what I consider overall a civil liberties win, the visa waiver program was expanded, adding a few more countries (including South Korea, for a rare non-European addition.) What I didn’t know was how much Sen. Dianne Feinstein hated the program. Searching the Internet revealed that she’s been going off about visa waivers being a magnet for terrorists for years.

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