The torture memo

The Framers did not give the President the suspending power the Whigs of 1688 fought to deny the English King.

One cheerful aspect to the torture memo story: it will provide a clear test of the difference between “right-wingers” and “conservatives.” Anyone properly calling himself an American conservative will be horrified, and will say so. (William Howard Taft IV, the General Counsel at the State Department, apparently objected but was overruled.)

If the Framers had wanted to give the President emergency authority to suspend the laws, they could have done so. They chose otherwise.

As good Whigs, they had no genuine alternative. Rejection of the claim of an inherent royal power to suspend the laws was the principle behind the Revolution of 1688.

What should the President do when defending the country requires breaking the laws? Why, he should break the laws, which usually means instructing his subordinates to do so. He, and they, remain subject to punishment, and he remains subject to impeachment.

But if the President can lawfully suspend, by his own mere say-so, any law he thinks inconsistent with the public safety, then there is no check on the President’s power save his own self-restaint and calculation of political reaction. Perhaps one could call a nation so ruled a republic — the definitional question is a nice one — but it would not be the republic established in 1787.

(Details here.)

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

One thought on “The torture memo”

  1. More on the torture memo and the civics memo…

    Mark A. R. Kleiman: The torture memo A good explanation of why the President must follow the laws and is…

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