What if torture is necessary but illegal? Learning from Lincoln

If a President is confronted with breaking the law or defending the country, he should look to Abraham Lincoln in 1861 for the right way to handle it.

So after saying for years that “we do not torture,” the new GOP/Cheney line is that it wasn’t illegal, and even if it was, it was necessary. Given Cheney’s documented history of mendacity and incompetence, that doesn’t have much credibility.

It does, however, raise an important question going forward: what should the President do if he believes he needs to take an action for national security that is nevertheless illegal?

As with so much else, we can learn here from Abraham Lincoln, who turned 200 this year even if an ungrateful nation barely noticed it.

The outstanding precedent here is Lincoln’s suspension of habeas corpus along the New York-Washington train route in the spring of 1861. State volunteers had to get to Washington to defend the capital come hell or high water, and Lincoln wasn’t about to let legal questions get in the way. It’s still not clear whether the President can unilaterally suspend the writ in the absence of Congressional action, although my reading of Hamdan and Boumedienne suggests that he cannot.

But it was the way in which LIncoln acted that can really serve as a precedent here.

1) Take Reponsibility. Josh Marshall has been writing about this recently as well. Lincoln didn’t pretend that some flunkies had taken these steps; he didn’t say that he wasn’t really suspending habeas corpus, only authorizing “expedited detention processes.” He did it, and took reponsibility for it. Does Dick Cheney really think these things are necessary? Then he should have the basic courage to admit that he did them and advocate for a change in the law. I’m not holding my breath.

2) Go Public. This is obviously related to #1. The Bush Administration’s policies were particularly insidious because no one knew they were happening; there could be no public debate about the issue. Lincoln, by contrast, issued a proclamation. And no, it’s no excuse to say that there couldn’t be a public debate about this. As with #1, make an argument that we should withdraw from the international conventions against torture that Ronald Reagan advocated.

3) Get Backing From Congress. After issuing his order, Lincoln called Congress back into a special session to validate his move. But Congress didn’t have to do so. Unlike Bush, Lincoln wasn’t a royalist: he didn’t think that the President could do anything he wants if he thinks it’s important. Bush and Cheney, on the other hand, did their best to hide from Congress everything that they were doing.

4) Limit the Scope in Both Time and Space. What is so amazing about LIncoln’s action is how limited it was: in the middle of the Civil War, it only applied to one particular rail line. Two years later, he violated this principle by attempting to suspend the writ all over the country, which historians have looked on quite rightfully as illegal and wrong. In the Bush Administration by contrast, Cheney and Rumsfeld authorized these techniques seemingly for anyone and everyone; they told interrogators to do what they needed to do whenever. Moreover, because Lincoln called Congress back into session, it was clear that his action was temporary; by contrast, Bush and Cheney used the excuse of a war that would never have a clear end to make it indefinite. Presidents can get away with a lot if they make it clear that their actions are temporary and geared only to a particular emergency; Bush and Cheney’s entire purpose was to seize power permanently.

These principles can’t work all the time: I don’t know whether they would have worked with FDR’s intervention in the North Atlantic in 1941. But they can go a long way.

And they would have gone a long way here. Had Bush and Cheney really believed that there was an emergency requiring torture, they would have 1) said so publicly; 2) taken responsibility for the decision and defended it; 3) gotten Congressional approval; and 4) limited it as much as possible.

But they couldn’t have done that, because torture was never about a national security emergency. It was about proving an Iraq-Al Qaeda link for political purposes. Or establishing precedent for unilateral executive rule. Or about military dropouts and draft dodgers like Bush, Cheney, and Addington showing how tough they were. Or something.

Following Lincoln’s 1861 precedent would thus have defeated the entire purpose of the torture program. And that shows us just how much these guys were a bunch of moral cretins.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.