Tuesday, January 11, 2005

Professor Balkin's question

With the trial of the first Abu Ghraib prison guard under way, while the astonishing testimony of Alberto Gonzalez lingers in my mind, I keep thinking about the question Jack Balkin raised last week: "Is American still a successful society?"

On Balkin's blog, former Office of Legal Counsel attorney Marty Lederman analyzes the new "torture memo" of December 2004 against the infamous one of 2002 and argues that the new one, while a great improvement, does not go far enough. This is a four-part essay (1, 2, 3, 4), more demanding on your attention span than the usual post, but if you're interested, it's a great help. And it too is very disturbing. One of the key points is this:

[T]he new memo does not repudiate one of the most disturbing features of the (now withdrawn) 2002 OLC Opinion—namely, its conclusion that it would be unconstitutional for Congress to prohibit torture undertaken at the behest of the President, and that indeed Congress is entirely powerless to restrict the President’s decisions concerning “what methods to use to best prevail against the enemy.” There is no indication that the Administration has stepped back from this constitutional understanding—notwithstanding the fact that all nine Justices of the Supreme Court in effect repudiated OLC’s Commander-in-Chief theory in the Court’s Hamdi decision last summer.

Lederman is one of 19 former OLC attorneys who offered a set of recommended "Principles to Guide the Office of Legal Council" (.pdf) in December. Walter Dellinger is another.

UPDATE: Lederman's important series of posts continues.

No comments: