Rule of law, So!
Looseheadprop at FDL has a post today about an assertion of power and authority by the Bush administration that is so incredible, not even suspension of disbelief can keep one from being shocked to the core, or at least not me. Reviewing an analysis Sen. Sheldon Whitehouse (D-RI) did of John Yoo’s memos, Loosehead highlights two of Sheldon’s findings. One assertion the Bush administration made is remarkably incredulous, but the second is beyond shocking.
The first finding:
[T]he good Senator launched into the topic of the Yoo memos. He had several great pickups. For example: that definiton of torture Yoo used, you know “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure ….”, that one? Do you know where it comes from? 42 USC Section 1395w-22, a Medicare reimbursement statute! I kid you not.
And how did we get to the point where the highly respected Office of Legal Counsel was using Medicare reimbursement statutes – statutes utterly irrelevant to the interrogation of suspected terrorists – to justify its legal analysis on this issue?
Making matters worse, this “legal analysis” was used to justify the legality of a certain coercive interrogation technique that regrettably has become familiar to us all, “water-boarding.”
As outlandish as that is, it pales in comparison to this finding.
1) An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it;
2) The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II; and
3) The Department of Justice is bound by the President’s legal determinations.
It was bad enough when Richard Nixon made the statement: "If the President does it, that means it is not illegal.” But the Bush administration had the Justice Department’s Office of Legal Counsel sanction Nixon’s statement, in essence, under the law, and thereby govern the nation accordingly.
Read Looseheadprop’s post.
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