On Monday, 7 June 2004, the `Wall Street Journal' published an unclassified, redacted copy of a memo dated 6 March 2003. The memo tries to justify torture. The claims made are unconstitutional.
On page 20, in the section entitled
the memo says that "... the President enjoys complete discretion in the exercise of his Commander-in-Chief authority including in conducting operations against hostile forces."
This is false. Although the United States Constitution says,
United States Constitution, Article II, Section 2
it also says,
United States Constitution, Article II, Section 3
A United States president can set aside the judgement of a court, but only do so after the court has passed sentence. Moreover, a court passes judgment based on
United States Constitution, Article III, Section 2.
Put another way, the United States government is based on a balance of power among the Congress, the Courts, and the Executive.
(Incidentally, this analysis suggests that President Ford's pardon of Richard Nixon had no legal validity, since Nixon had not been tried and convicted.)
The US Constitution was written by men who took seriously the old Christian notion, that `Man is fallen'. They were afraid that if one person or one group held power, that person or group would learn tyranny. Consequently, the constitutional design depends on different groups, with different motivations.
Return to: Notions
Or return to: Rattlesnake Home Page