...The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States...Article II, Section 2, United States Constitution.
Many a disparaging word has been said about the American Civil Liberties Union (ACLU) but I am proud to say that I am a card carrying member. Occasionally, the organization that fights for the Civil and Fundamental right of all Americans comes down on the wrong side of an issue, but this is not one of those times. The Justice Department declassified and the Pentagon recently released the now infamous, 2003 formally classified memo written by then-Deputy Assistant Attorney General John Yoo, wherein the Justice Department provided "military interrogators with broad latitude for the use of harsh techniques in questioning prisoners in Afghanistan."
We have the ACLU to thank for shedding light on yet another chapter in American history wherein our government proved to be the enemy within.
The now discredited memorandum written chiefly by Yoo—now a Law Professor at Berkley University—undergirded its argument by asserting that the President has wide latitude in times of war as Commander-in-Chief, saying criminal statues outlawing torture "would conflict with the Constitution's grant of the Commander in Chief power solely to the President."
Here is the problem: the Constitution says nothing about the President’s inherent power to ignore U.S. and legally binding International Law in times of war. A war I hasten to point out that the Congress (Article I, Section 8, Clause 11, United States Constitution) did not declare. And since the President cannot declare War on his own how then was the United States at war and how could the president exercise there newly found powers?
And even if the country were in a congressionally declared war, where in the Constitution does it state that the President has the power to ignore the law in times of war or otherwise? It doesn’t! Article II, Section 2, only states that he shall be Commander-in-Chief of the Army and Navy; the Article say nothing of additional powers to be exercised (inferred) in connection with the title.
In other words John Yoo’s assertions of supreme presidential power in wartime have no legal basis or underpinnings in either in the Constitution, or U.S. Statutory Law. The President of the United States is not above the law in a nation where the rule of law holds sway. Bush is not a dictator, nor is he a sovereign; he is bound to the same laws that bind all American citizens. To assert otherwise is folly not only to the nation, but to the very Constitutional construct the president swore to uphold and protect!
And shame on Congress for letting the man travel such a destructive path unchallenged as it were by the vocal and legislative curves of descent. The Republican-led congress only validated Yoo’s ill-advised memos by keeping silent on the issue. And no the Republic was not rightly served by the minority Party’s lack of clear vocal dissent.
The much vaunted American system of checks and balances broke down after the attacks of 9/11 and the American government once more became the enemy within. This episode once again proves that our government is only as good as those elected and yes, hired, to administer it. We The People can never let elected officials forget their oath of office in which they swear to Uphold and Defend the Constitution of the United States against all enemies foreign and domestic. Veer in that commitment and the nation and her peoples suffer the possible yoke of tyranny!