Author Archives: Michael Froomkin

A reader writes in to say,

You MUST read Jane Mayer's “Outsourcing Torture” in the New Yorker. Get a load of what Yoo's saying now:

Yoo also argued that the Constitution granted the President plenary powers to override the U.N. Convention Against Torture when he is acting in the nation¡'s defense—a position that has drawn dissent from many scholars. As Yoo saw it, Congress doesn't have the power to “tie the President's hands in regard to torture as an interrogation technique.” He continued, “It's the core of the Commander-in-Chief function. They can't prevent the President from ordering torture.” If the President were to abuse his powers as Commander-in-Chief, Yoo said, the constitutional remedy was impeachment. He went on to suggest that President Bush's victory in the 2004 election, along with the relatively mild challenge to Gonzales mounted by the Democrats in Congress, was “proof that the debate is over.” He said, “The issue is dying out. The public has had its referendum.”

In other words, “a vote for Bush is a vote for torture.” Jesus H. Christ, he actually SAID it.

As Constitutional doctrine it's not just offensive, it's also fairly silly. Congress has several Article I powers, not least the power to regulate the armed forces, which make it clear that it has the power to prevent torture. And then there's the power to implement treaties, which the Constitution itself says are the highest law, equivalent to the Constitution itself….

(Note to fellow lawprofs — who ever thought the right wing would be embracing Ackerman's theory of amendment via 'constitutional moments' so quickly?)