June 09, 2004

DOJ Was Just Wondering...

by PG

Travel prevents me from posting much during June, but I was checking on the news just now, and the juxtaposition of these New York Times headlines struck me:
Lawyers Decided Bans on Torture Didn't Bind Bush
Bush Didn't Order Any Breach of Torture Laws, Ashcroft Says

Which raises the question of how bored Justice Department staff must be, if they have to work out the legal consequences of actions that the Administration doesn't plan to take. In other words, why bother figuring out that international treaties regarding torture are not binding on President Bush, unless Bush may wish at some future point to have policies that would violate those treaties?

The second Times article reports, 'Mr. Ashcroft strove to make a distinction between memorandums that may have provided theoretical legal justifications for torture and his assertion that there had never been any directive that actually authorized its use. [...] Mr. Ashcroft said proof that the administration was opposed to torture in practice, despite any legal memorandums [...]'

(Shades of the infamous Rehnquist memo...? I wouldn't want every random musing I've written to be published, but perhaps all this serves as a recommendation to people high in the federal government to do a little less of such musing on the job.)

Reminiscent of the Cheney energy case, the Administration again seems uninclined to attempt an invocation of executive privilege to avoid publicizing their memos regarding what the president may and may not do. This time Ashcroft said, according to the article's paraphrase, that 'it was simply not good policy to openly debate what powers a president had in wartime,' as the end-run alternative justification for withholding information. I am curious as to what has made Bush so reluctant to mention executive privilege now, considering that he felt free to proffer it when refusing to let Congress see prosecutorial records.

June 9, 2004 12:45 PM | TrackBack

As in the child's game of "King of the Hill", the King can do as he pleases. But in that game, the King changes. This is an extension of Bush Jr.'s National Security Strategy (2002), taking the Bully away from the Pulpit and getting into the fray.

Take a look at Prof. Jack Balkin's posts of yesterday at BALKINIZATION on the subject of Bush Jr. and torture.

Posted by: Shag from Brookline at June 10, 2004 08:46 AM
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