President's power vs. laws against torture.

US presidents customarily have pushed the envelope of their legal authority to the maximum during wartime. President Bush has been no exception, suspending the right of habeas corpus for U.S. citizens in two known cases and claiming the right to operate a prison at Guantánamo Bay that exists in an extra-legal, no-man's land. Even with all that, the claim by government lawyers that Mr. Bush can authorize torture of prisoners in disregard of U.S. law, international law, the Geneva Conventions, treaty commitments, human decency and plain common sense should shock the conscience of every American.

Wrongheaded ideas

It's hard to say what's worse -- the notion that the power to set aside laws is ''inherent in the president,'' as one report has it, or the claim that a president's power as commander-in-chief includes the right to use torture. Both of these wrongheaded ideas offend legal and constitutional standards -- the separation of powers, to cite only one -- and must be unequivocally rejected.

The U.S. commitment against the use of torture is embodied in both the Geneva Conventions and the 1994 international Convention Against Torture, as well as a law that enacted the convention. The obligation to abide by these treaties cannot be made to vanish by government lawyers who invoke the president's war-making power as if it were some sort of magic wand. Nor should their specious logic be allowed to substitute for legal reasoning.

So far, Attorney General John Ashcroft has displayed an abysmal failure to understand what's at stake. Mr. Ashcroft was defiant before Congress when asked to provide several of the confidential memorandums written by his subordinates at the Department of Justice. Moreover, he refused to provide a legal justification, claiming only that disclosure was a bad idea. Faced with this stonewalling, Congress should compel the administration to supply the memorandums and investigate the consequences.

Can't ignore treaties

Among the matters that remain unclear are whether the memoranda were presented to President Bush and what actions, if any, U.S. officials took as a result of the legal advice. Given the prison abuses at Abu Ghraib and elsewhere, it simply isn't enough for Mr. Ashcroft to insist that the White House never issued orders authorizing tactics that violate basic laws of human decency. Congress would be derelict if it failed to follow up. After all, it's Congress' standing as a co-equal branch of government that is being challenged. Why should it bother to pass laws and ratify treaties if the president can ignore them when they become inconvenient?

Conservatives should be as concerned as liberals or anyone else about this implied executive power-grab. Americans mustn't surrender their constitutional rights just because government lawyers decide to make exaggerated claims of presidential authority in wartime.

[Source: Miami Herald, Us, 10Jun04]

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State of Exception and human rigths
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