This Commonweal editorial (“Torture’s Enablers”), link, raises a number of important questions. I hope that what follows will not be misunderstood as reflecting a failure, or a refusal, to take these questions very seriously. That said, I believe the editorial proceeds from at least one mistaken premise.
The editorial states, “[i]n his testimony [Judge] Mukasey suggested that the president’s duty to defend the country overrides his duty to obey the law. That is a perverse, almost monarchical interpretation of the executive branch’s role.” Such a suggestion would be perverse — or, more precisely, it would be mistaken as a matter of constitutional law. But, Judge Mukasey did not, in his testimony, endorse or propose the notion that “the president’s duty to defend the country overrides his duty to obey the law.” Here is the transcript.
The precise question of constitutional law at issue, as I see it, is not whether the President must obey “the law”. Of course (I think) he must. The question is whether “the law” which the President must obey is always and no matter what whatever Congress says “the law” is. It is an entirely unremarkable — and, with all due respect, not at all “monarchical” — proposition of constitutional law that the Constitution vests the executive power in the President, and not in the Congress. The challenge, of course — one that has absorbed for a long, long time the full attention of the very best public-law scholars — is to identify the content and bounds of the power the Constitution vests in the President and also of the power — i.e., the legislative power — that the Constitution vests in the Congress.
To be sure, responsible and reasonable people can and do disagree about the scope of the powers that the Constitution vests in the President and in Congress. Certainly, it is entirely possible that this Administration’s understanding of the scope of its power — and, therefore, of the scope of Congress’s power — is mistaken.
To observe that there are limits on Congress’s ability to bind the Executive — as Judge Mukasey did, and as we all should — is not to “enable”, in a culpable way, torture. I certainly hope the editors at Commonweal — whom I respect, of course — did not mean to suggest the contrary, i.e., to claim that to note, as Mukasey did, that there are limits on Congress’s ability to bind the Executive, and to accept the structural features of our Constitution, one of which is that the executive power is vested in the President, is to culpably “enable” torture. That the President may abuse the power he has does not mean — it should not mean, to lawyers — that he therefore does not, in fact, have that power. It does mean, of course, that he should be criticized, even condemned, for misusing it. It seems crucial to me that we distinguish structural questions about how power is, in fact, allocated from our moral critique of the exercises, and misuses, of power. The fact that the structural principle of separation of powers “enables” Presidents to misuse power — and, to the extent the Administration has exercised power in order to authorize, facilitate, or engage in torture it has, of course, grossly abused power — no more tarnishes that principle, it seems to me, than the misuse of the Fourteenth Amendment to constitutionalize abortion-on-demand tarnishes the Amendment’s due-process guarantee.
Now, is any of this “Catholic”, or relevant to our project here at Vox Nova? Maybe. The insight that the structure of government is intimately and importantly connected to authentic human freedom and flourishing seems quite at home (see, e.g., “subsidiarity”) in the Catholic intellectual tradition. Our federal government has a structure, and respect for that structure is, for us, a dimension of respect for the rule of law. Now, even within this structure, Congress does have the power to give effect to its judgment that the Administration is acting rashly, unwisely, even immorally, with respect to interrogations, detention, etc. Perhaps we should ask, why, exactly, is Congress failing to exercise that power? It could, for example, use the power of the purse to induce changes in policy, more transparency, and so on. But, perhaps out of fear of political backlash, the Congress is not doing this. If so, then perhaps it is not only the President who is misusing power.
Finally, it should go without saying, but I will say it anyway, so that there will be no misunderstanding: I share the view of the editors at Commonweal that “waterboarding” is immoral; as described, it certainly seems to me to fit any plausible definition of “torture.” Like the editors, I think it is tragic and awful that “the United States, once widely hailed as a champion of human rights, is now seen as a nation that tortures.” (The United States remains, I think, a “champion of human rights”, in many, many ways; but, the perception that the United States is not fully respecting human rights — even though it does respect them to a degree that far exceeds almost every other country — does, obviously, undermine its ability to effectively champion human rights.) And, I am not endorsing the more extravagant claims that some have proposed regarding the scope and bounds of executive power.
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