U.S. Lawyers Use Legalisms to Cover Lawlessness

[UpInArms]

http://quote.bloomberg.com/apps/news?pid=10000039&refer=columnist_woolner&sid=aJEp1ExaMybo

June 14 (Bloomberg) -- The law ``should prevent us from falling into our base instincts,'' says John Hutson, retired judge advocate general of the U.S. Navy. At the same time, he says, it should embody ``the highest goals of humankind.''

The law did neither in the hands of civilian lawyers at the Pentagon, the Justice Department and the White House, who twisted it into pretzels to reach the astonishing conclusion that the president doesn't have to obey the law if he wants to order torture.

In classified memoranda disclosed in news reports last week, civilian administration lawyers argued that presidential power trumps federal law and international treaties forbidding torture.

``It's one of the most preposterous things I've seen,'' said Scott Horton, an international lawyer at Patterson, Belknap, Webb & Tyler in New York. The U.S. Supreme Court has clearly said quite the contrary in the leading case on the issue, he said.

``It's bad lawyering from a technical point and wrong on the ethics,'' says Hutson, a retired rear admiral and a Navy lawyer for 28 years. He was speaking by telephone from Concord, New Hampshire, where he is dean of the Franklin Pierce Law School.

...more...

Question: If the office of the president "trumps federal and international laws", doesn't that equate with "dictatorship"?

[lovedems]

1. This is despicable. These lawyers who approved torture get judicial

appointments.

They should all be disbarred and removed from their positions.

This is coming from the same people who have been whining that the senate has been playing politics with judicial appointments. I guess they have to get their torture approving judges appointed ASAP.

This is terrible.

[struggle4progress]

2. Perhaps Ashcroft doesn't want to release the memos because ...

that would mess up even more nominations?

[Eloriel]

3. not to mention war crimes possibilities

or "merely" disbarment.

[Mechatanketra]

4. Why do we even need to bring ethics into it?

This isn't rocket science. It's not even terribly arcane law -- just junior high civics, stuff that you're supposed to have passed muster on before they let you into high school.

1. Article I, Section 8 of the Constitution specifically grants Congress the powers "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water"; "to make rules for the government and regulation of the land and naval forces"; and "to provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States". (emphasis mine, of course).

2. Article II, Section 3 of the Constitution specifically obligates the President to "take care that the laws be faithfully executed".

3.Article VI of the Constitution includes "all treaties made ... under the authority of the United States" as part of "the supreme law of the land".

So, a lawyer who writes that international anti-torture laws "may be unconstitutional if applied to interrogations " is either a moron or a plain liar. How can it be unconstitutional if the Constitution specifically empowers Congress to make rules regarding "captures" (and does not limit the scope of that power to any narrower context)?

On similar grounds, one of these torture reports had a lawyer claiming that Congress had no standing to interfere with the President's "unlimited authority" to wage war. Well, there it is in plain writing, you twits: Congress is specifically empowered to interfere in anyone's war powers at any step of the chain of command -- except maybe Bush's right to pick up a gun himself and do whatever he can accomplish without use of "such part of as may be employed". And the President's powers are very much limited, in war as in anything else, by the overarcing obligation to not break laws (and indeed, to ensure that no one else does, either).

In short, these aren't legal arguments at all -- they're pure dismissals of the law, declarations that you're going to ignore the law. It's a shame that, as far as I know, we have no legal teeth to attack those who commit this highest of all white collar crimes: breach of national oath or duty. The President takes an oath to uphold and defend the Constitution, but there's no criminal apparatus to hold him to it. :-(

[indepat]

5. And would that be a fascist or a communist dictatorship?

[struggle4progress]

6. Presumably bushco isn't seeking dictatorship by the proletariat

[indepat]

7. Was sorta thinking he had a corporatist-type in mind

[tom_paine]

8. First off, it's not the "U.S." That country is gone, though many hope to

see it return.

Second, Lawlessness is a characteristic of Totalitarian Regimes like Imp[erial Amerika...

[teryang]

9. Thank you Tom

As you say, "United States of America" is the constitutional form of government that we seem to have lost.

As far as the so called lawyering that went on here, it wasn't. They didn't even make a colorable case. They cited no authorities to support their position and merely made politically convenient assertions. That's not practicing law and its not within the realm of ethical advocacy when one advises another to commit crimes. The people who did it have a lot nerve calling themselves attorneys after having violated their oath to uphold the Constitution.