Torture, War, and Presidential Powers

A Wall Street Journal article last week detailed a Department of Defense memo that discusses the legality of interrogation and torture methods in the wake of events at Abu Ghraib. The document reportedly advises that the president has authority to order almost any action, including physical or psychological torture, despite federal laws to the contrary. The Pentagon lawyers who drafted the memo were not shy about blatantly asserting that the Commander-in-Chief can break the law when necessary, as evidenced by this quote from the memo: "Sometimes the greater good for society will be accomplished by violating the literal language of the criminal law."

The Justice Department, for its part, is depressingly silent on the issue. Attorney General Ashcroft refuses to release an existing Justice Department memo on the matter to Congress. Why can't the American people, much less Congress, see how the Justice Department interprets presidential powers and federal torture laws? Why the secrecy? The Justice Department is charged with enforcing federal laws, not suspending them or advising federal agencies to ignore them.

Legal issues aside, the American people and government should never abide the use of torture by our military or intelligence agencies. A decent society never accepts or justifies torture. It dehumanizes both torturer and victim, yet seldom produces reliable intelligence. Torture by rogue American troops or agents puts all Americans at risk, especially our rank-and-file soldiers stationed in dozens of dangerous places around the globe. God forbid terrorists take American soldiers or travelers hostage and torture them as some kind of sick retaliation for Abu Ghraib.

The greater issue presented by the Defense Department memo, however, is the threat posed by unchecked executive power. Defense Department lawyers essentially argue that a president's powers as Commander-in-Chief override federal laws prohibiting torture, and the Justice Department appears to agree. But the argument for extraordinary wartime executive powers has been made time and time again, always with bad results and the loss of our liberties. War has been used by presidents to excuse the imprisonment of American citizens of Japanese descent, to silence speech, to suspend habeas corpus, and even to control entire private industries.

It is precisely during times of relative crisis that we should adhere most closely to the Constitution, not abandon it. War does not justify the suspension of torture laws any more than it justifies the suspension of murder laws, the suspension of due process, or the suspension of the Second amendment.

We are fighting undeclared wars in Iraq and Afghanistan, and an open-ended war against terrorism worldwide. If the president claims extraordinary wartime powers, and we fight undeclared wars with no beginning and no end, when if ever will those extraordinary powers lapse? Since terrorism will never be eliminated completely, should all future presidents be able to act without regard to Congress or the Constitution simply by asserting "We're at war"?

Conservatives should understand that the power given the president today will pass to the president's successors, who may be only too eager to abuse that unbridled power domestically to destroy their political enemies. Remember the anger directed at President Clinton for acting "above the law" when it came to federal perjury charges? An imperial presidency threatens all of us who oppose unlimited state power over our lives.

A strong separation of powers is at the heart of our constitutional liberties. No branch of government should be able to act unilaterally, no matter how cumbersome the legislative process may be. The beauty of the Constitution is that it encourages some degree of gridlock in government, making it harder for any branch to act capriciously or secretly. When we give any president – one man – too much power, we build a foundation for future tyranny.