Tag Archives: torture

When Presidents Break the Law (e.g. Bush)

There is a new book out called Because It Is Wrong: Torture, Privacy, and Presidential Power in the Age of Terror. Written by Charles Fried, a Harvard law professor who served in several legal roles in the Reagan administration, including Solicitor General, and his son Gregory Fried, a philosophy professor at Suffolk University, the book explores “the ethics of torture and privacy violations in the Bush era.”

Harvard Magazine recently ran some excerpts from the final chapter, where the Frieds move off of torture per se and more into the general obligations of a president to the people.

They discuss that at times a president might break the law because he thinks the law will not allow him to do what is necessary to save the country, as did Jefferson in 1807 and Lincoln in 1861.The Frieds liken this law breaking to civil disobedience, with “a fundamental allegiance to the political community and its system of laws and government.” Executive law breaking while maintaining ultimate fidelity to the state and its system is civil disobedience; law breaking outside this fidelity is a coup.

But the Frieds also emphasize that civil disobedience, with fidelity to the state, requires admitting your law breaking. Like civil rights protestors who willingly went to jail, executive law-breakers under the Fried model…

“…break the law in a way that emphasizes their allegiance to the rule of law and the existing system of laws and institutions in general, with the exception of the law or set of laws in question. They break the law openly. They break the law reluctantly only for reasons of deep principle and in situations of great urgency, after making a good faith effort to change the law by legal means. They do not resist or avoid the representatives of the state when they arrest them. The practitioners resist by pleading their case in court, and they accept their punishment if the court goes against them, trusting that their fellow citizens will see the light eventually.”

The Frieds note that unlike MLK, a president takes an oath to uphold the law. Yet quoting Aristotle, they claim that the law cannot always foresee what is in the public interest. But if the executive gets to decide what is in the state’s best interest, what is to prevent the executive from becoming a tyrant? Here is where their call for open law-breaking is essential. The risk of being found guilty by the jury of citizenry will keep executives from going too far. “A chilling effect is exactly what we need when it comes to the rule of law.”

In other words, the Frieds believe that an executive law-breaker should stand up and say “yes, I did commit that act” and let the citizens decide. They compare this, unfavorably, to the law-breaking in the Bush administration, wherein the law-breakers to this day refuse to acknowledge what they did. The Frieds make clear that they are not necessarily calling for prosecutions of Bush officials; they only point out that “there is a great danger to secret executive lawbreaking. What is done in secret could metastasize into the arbitrary, lawless power of the tyrant—as it did in the Weimar Republic, with Hitler’s rise to power.”

Constitutional Theory: A Means to an End?

Jack Goldsmith recently reviewed John Yoo’s new book on presidential power. Goldsmith, you might recall, was named under George W. Bush to head the Department of Justice’s Office of Legal Counsel, where he ended up repudiating Yoo’s torture memos.

Goldsmith spends a lot of time discussing the history of a strong executive, and how liberals used to like it and conservatives hated it, and how that has changed since Reagan. He also discusses at length the Federalist Papers, as all such articles do.

But let me boil it all down for you, because here is the money quote:

“…constitutional theory is usually grounded in a theory of preferred outcomes.”

So take that, not just John You, but John Roberts, and Tony Scalia, and every other snotty jurist who thinks he or she has a monopoly on understanding the constitution.