Friday, June 18, 2004


Economist's Thoughts on the Torture Memo

The Economist lays out some good arguments on the torture memo.

Even so, the memo goes further than most ordinary opinion would in defining torture as “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death.� On the face of it, that means sliding needles under fingernails or holding someone’s head under water to the point of drowning would not count as torture under the law.

Constitutionally, its second argument is no less striking. This is that the president can do whatever he wants in war, or, as the memo puts it, “enjoys complete discretion in the exercise of his commander-in-chief authority.� Interrogations, the memo says, are a “core function of the commander-in-chief.� Hence “we will not read a criminal statute as infringing on the president’s ultimate authority in these areas.�

This comes near saying that the president is above the law when acting as commander-in-chief in wartime. No other president has made such a claim. The constitution gives Congress power to “make rules for the government and regulation of the land and naval forces.� This contradicts claims of untrammelled presidential authority. When Harry Truman tried to seize Youngstown Sheet and Tube in 1952 to prevent a steel shortage during the Korean war, the Supreme Court stopped him.

Link to the op-ed here:

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