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Interrogations and Presidential Prerogative
The Founders created an executive with
substantial discretionary powers.
Recently, an Episcopal church in Bethesda, Md., displayed a banner with the
following words: "God bless everyone (no exceptions)." I confessed to the rector
of my own church that, try as I might, I simply could not obey this injunction.
Judging by what he had to say about "enhanced" interrogations, Sen. Lindsey
Graham (R., N.C.) seems not to share my difficulty.
Mr. Graham believes that we're either a rule-of-law nation or we're not, and
no exceptions. "I don't love the terrorists. I just love what Americans stand
for," he said in an interview with Newsweek in 2006. His point was that our
definitions of torture should not vary with the sort of person being questioned
-- terrorists, for example, or merely prisoners of war.
Mr. Graham's position is similar to the one taken by Chief Justice Roger
Brooke Taney during the Civil War. In 1861, Confederate sympathizers in Maryland
were burning railroad bridges, tearing up their tracks, and attacking federal
troops so as to prevent them from reaching the national capital. Since local
officials did nothing about this, Abraham Lincoln did. He ordered the military
to suspend the writ of habeas corpus, which led to the arrest and imprisonment
of John Merryman, a leader of the sympathizers.
Chief Justice Taney ruled in Ex Parte Merryman (1861) that only
Congress could suspend the writ of habeas corpus and ordered Merryman released.
Lincoln disobeyed the order, believing that the executive must sometimes do
things it would not do in ordinary times. Would he have done this if the issue
had been the interrogation of terrorists? Does the law have something to say
about this?
And would Taney and Graham find support for their views in the writings of
our Founders or their philosophical mentors, particularly John Locke, the 17th
century Englishman sometimes referred to as "America's philosopher"? Locke is
the source of our attachment to the rule of law and the priority of the
legislative power.
Locke argued in the Second Treatise of Civil Government that the "first and
fundamental law is the establishment of the legislative power." And so it is
that the first article of the U.S. Constitution is devoted to the legislative
power. There is safety in law, he said; the law is "promulgated and known to the
people," and everyone without exception is subject to it.
But Locke admitted that not everything can be done by law. Or, as he said,
there are many things "which the law can by no means provide for." The law
cannot "foresee" events, for example, nor can it act with dispatch or with the
appropriate subtlety required when dealing with foreign powers. Nor, as we know
very well indeed, can a legislative body preserve secrecy.
Such matters, Locke continued in the Second Treatise, should be left to "the
discretion of him who has the executive power." It is in this context that he
first spoke of the "prerogative": the "power to act according to discretion, for
the public good without the prescription of the law, and sometimes even against
it." He concluded by saying "prerogative is nothing but the power of doing
public good without a rule" (italics in the original).
Did the Framers find a place in our Constitution for this extraordinary
power? What, if anything, did they say on the subject or, perhaps more
tellingly, what did they not say?
They said nothing about a prerogative or -- apart from the habeas corpus
provision -- anything suggesting a need for it. But they provided for an
executive significantly different from -- and significantly more powerful than
-- the executives provided for in the early state constitutions of the
revolutionary era. This new executive is, first of all, a single person, and, as
the Constitution has it, "he shall be Commander in Chief of the Army and Navy."
This is no mean power; Lincoln used it to imprison insurgents and to free the
slaves.
The Framers seemed to be aware of what they were doing when they established
the office. I draw this conclusion from their reaction when the office was first
proposed.
According to the "Records of the Federal Convention of 1787," on June 1, a
mere two weeks into the life of the convention, James Wilson "moved that the
Executive consist in a single person." Charles Pinckney seconded the motion.
Then, "a considerable pause" ensued, and the chairman asked if he should put the
question. "Doc Franklin observed that it was a point of great importance and
wished that the gentlemen would deliver their sentiments on it before the
question was put and Mr. Rutledge animadverted on the shyness of gentlemen. . .
."
Why the silence? Why were they shy? Apparently because the proposal was so
radically different from the executives provided in the state constitutions (and
the fact that there was no executive whatsoever under the Articles of
Confederation). All of these governmental bodies (except New York), and
especially those whose constitutions were written in the years 1776-78, included
"almost every conceivable provision for reducing the executive to a position of
complete subordination," as Charles C. Thach Jr., noted in "The Creation of the
Presidency, 1775-1789." The gentlemen were also shy because the provision for a
single executive reminded them of George III and of what he had done.
This new, single executive is also required to take an oath to "preserve,
protect and defend the Constitution of the United States." This was the
provision of his oath President George W. Bush used to capture, hold and
interrogate terrorists.
Questions arise: Was the Constitution or, better, the nation actually in
jeopardy after 9/11? Was Mr. Bush entitled to imprison the terrorists in
Guantanamo? Were the interrogations justified? Were they more severe than
necessary? Did they prove useful in protecting the nation and its citizens?
These are the sorts of questions Locke may have had in mind in his chapter on
the prerogative. Who, he then asked, shall be judge whether "this power is made
right use of?" Initially, of course, the executive but, ultimately, the people.
The executive in our case, at least to begin with, is represented by the
three Justice Department officials who wrote the memos that Mr. Graham and many
members of the Obama administration have found offensive. They have been accused
of justifying torture, but they have not yet been given the opportunity in an
official setting or forum to defend what they did.
That forum could be a committee of Congress or a "truth commission" -- so
long as, in addition to the assistance of counsel, they would be judged by "an
impartial jury," have the right to call witnesses in their favor, to call for
the release of evidence including the CIA memos showing the success of enhanced
interrogations, and the right to "confront the witnesses" against them as the
Constitution's Fifth and Sixth Amendments provide. There is much to be said for
a process that, among other things, would require Nancy Pelosi to testify under
oath.
Mr. Berns is a resident scholar at the American Enterprise Institute.
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