http://www.nybooks.com/articles/17230The issues raised by the Bush administration's legal assertions in its "war on terror" are so numerous and so troubling that one hardly knows where to begin discussing them. The torture and death of prisoners, the end result of cool legal abstractions, have a powerful claim on our national conscience. They are described in horrifying detail in a report published recently by Human Rights Watch, "The Road to Abu Ghraib." But equally disturbing, in its way, is the administration's constitutional argument that presidential power is unconstrained by law.
President Bush and his administration have used the September 11 attacks again and again as an argument for expanded executive power. A signal example is the claim that the President can designate any American citizen as an "enemy combatant" and have him or her imprisoned in soli-tary confinement, indefinitely, without trial or access to counsel. That is the claim now before the Supreme Court in the cases of José Padilla and Yasser Hamdi.
The assertion in the various legal memoranda that the President can order the torture of prisoners despite statutes and treaties forbidding it was another reach for presidential hegemony. The basic premise of the American constitutional system is that those who hold power are subject to the law. As John Adams first said, the United States is meant to be a government of laws, not men. For that Bush's lawyers seem ready to substitute something like the divine right of kings.
For me, the twisting of the law by lawyers is especially troubling. I have spent my life believing that the safety of this difficult, diverse country lies to a significant extent in the good faith of lawyers?in their commitment to respect the rules. But the Bush lawyers have been brazen in their readiness to twist, dissemble, and invent in the cause of power.
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