Tuesday, May 5, 2009

Legal primer for an ex-exec aide

'Let me just say that President Bush was very clear that he wanted to do everything he could to protect the country. After September 11, we wanted to protect the country. But he was also very clear that we would do nothing, nothing, that was against the law or against our obligations internationally. So the president was only willing to authorize policies that were legal in order to protect the country.'

So said Condoleezza Rice, formerly the Secretary of State and National Security Advisor to President George W. Bush, in response to a question posed by a 4th grader at a Washington, D.C., school. The comment followed fast upon Rice's defense of self in response to students at Stanford, the university to which Rice has returned (full video below, (c) Stanford student Reyna Garcia):

'The president instructed us that nothing we would do would be outside of our obligations, legal obligations, under the Convention Against Torture.'
'I just said -- the United States was told, we were told, nothing that violates our obligations under the Convention Against Torture. And so, by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture.'

Worth a reread at this juncture: old chestnuts, like Marbury v. Madison (1803) and the Steel Seizure Case (1952), which establish that executive action must comply with the laws of the United States (including, to name just 2 provisions, the 4th Amendment and the Due Process Clause of the 5th Amendment). Then there's the Constitution's Supremacy Clause. It makes clear that "all Treaties made ... under the Authority of the United States" -- CAT, for instance -- "shall be the supreme Law of the Land." And don't forget Cooper v. Aaron (1958), which holds that it's the Justices of the U.S. Supreme Court, and not executive officials, who have the final say on such questions. For good measure, United States v. Nixon (1974) is worth a look.
Sandwiched in between Rice's latter 2 quotes above was this additional self-defense:

'So that's -- and by the way, I didn't authorize anything. I conveyed the authorization of the administration to the agency. ... That's what I did.'

One scurries to reread 18 U.S.C. §§ 2 and 371.

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