I think that Richard Cohen is a little behind the curve with his warning, issued today in the Washington Post:
Trump has shown a daunting disregard or ignorance of the Constitution and of law. Regarding the use of torture, he has said that the military must follow his orders — even if they are illegal. More recently, he declared that flag-burning should be a crime and that flag burners be punished by “perhaps loss of citizenship or year in jail.†The remark was one of his off-the-cuff inanities — since 1989, flag-burning has been protected political speech, and citizenship, we’d like to think, is forever. The tweet — so few words, so much meaning — spoke to Trump’s abysmal lack of knowledge but, more important, contained an emotional truth. Trump despises dissent and often reacts emotionally to setbacks or challenges.
For the last eight years we have been treated to an administration with a stunningly casual disregard for constitutional limits. The Obama Administration has been reversed by the Supreme Court in unanimous decisions more than any other modern presidential administration.
I didn’t vote for Trump. I wouldn’t vote for Trump. I don’t support Trump. I like good, honest government and the rule of law and that isn’t dependent on the color of the tie of the president or the letter behind his or her name.
Here’s a novel idea. Why doesn’t Congress do Congress’s job and limit the president to doing the president’s job? An idea so crazy it might work.
I am rather amazed at the people such as Mr. Cohen who are unaware of how the US system works. What the US Supreme Court rules one day, it can unrule the next. Were those like Mr. Cohen to have their way, Dred Scott could never have been overturned. Plessy v Ferguson would never have occurred, and Jim Crow would still would still be fully protected by the US Constitution.
If Mr. Cohen and his cohorts actually believed one syllable of the crap that they spew, the majority of the lawyers would go bankrupt.
That’s an issue common to both Mr. Cohen’s column and the whining about the PRC-ROC stuff. Carter adopted the “One China Policy” unilaterally. He didn’t have Congressional support for it. He just did it.
IMO all of this stuff is a powerful argument for building coalitions, support bases, and consensus as a way of maintaining policies. It beats the heck out of the “you can’t make an omelet without breaking eggs” approach that so many seem to advocate these days. You’re always left wondering where the omelet is?
Cohen also doesn’t appear to know that waterboarding is not illegal; Obama issued an executive order, somewhat similar to a previous one signed by Bush, preventing the use of waterboarding. That didn’t make it illegal, it made violations punished by discharge or discipline for violating an official command. That is, it was treated as an issue within the prerogatives of executive discretion.
What would have made waterboarding illegal was passing one of the laws Democrats (Kennedy I believe) sponsored at times when they were confident that Bush would veto it. Those laws were not pursued when Democrats had a majority and Obama was present.
Bottom line is that executive orders are not “rule of law” constructs, they are tools of management. Cohen didn’t care about this distinction because he’s either a partisan hack or incapable of imaging the future.
Note that Cohen promoted the lies which led to the Iraq War and the war itself until it went bad. Then he apologized, kind of. Easy for him to do, the victim wasn’t Israel. Which also relates to the overwrought theme of his column.
PD Shaw,
Waterboarding is banned for the US military due to the detainee treatment act. Since its passage, Democrats have sort-of tried to expand the DTA to include the CIA and “other government agencies.” A bill to do that was proposed during the 111th Congress (when the Democrats had the majority that got them Obamacare), but it was sent to committee and never left.
@Andy, the Detainee Treatment Act does not mention waterboarding. It restates the pre-existing requirement that interrogations be in accordance with the UN Convention against Torture, which itself calls upon each member state to prevent “severe mental suffering.”
Under American domestic law banning “severe” suffering, but permitting the infliction of regular suffering is not really an enforceable standard. This should be obvious from watching all of the recent law enforcement trials — police are authorized to use deadly force, but not unreasonably (my simplification), and its difficult to prove beyond a reasonable doubt that the violence crossed a line that lawmakers are unwilling to draw. Why not use the word “waterboarding”?
I’m calling for less hypocrisy and more explicitness, because as I read the situation, Americans want to waterboard in extreme circumstances that may not ever arise. And Cohen only cares when he thinks the supreme leader is just and wise.
PD,
From the text of the law:
“(a) In General.—No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.”
It would illegal for any military member to utilize waterboarding and obeying an order to do so would be a crime.
@Andy, perhaps we have a semantic disagreement, the Department of Defense can change the field manual at any time. If Congress wanted to do something they could have at least specified the Field Manual at that time.
Yes the manual could change, but there’s no way waterboarding will get added. So it’s still illegal for the DoD, but in a gray area for the CIA.
@Andy, I think as a practical matter you’re right, but part of the laws that have been introduced since the Republicans took the House have included provisions regulating revisions to the relevant portions of the Army Field Manuel that appear to be intended to promote public scrutiny and technical standards for interrogation techniques, which would make it difficult to change.
Obama’s executive order repealed Bush’s executive order and all “executive directives, orders, and regulations” inconsistent. How far could Trump’s executive order modify the Army Field Manual? Executive orders tend to inform Department heads to change policies and policies are usually implemented through rules and guidance.
As I said in theory it could happen, but there would be a fight and that fight would be public. And, since the FM is unclassified, everyone would know. If Mattis becomes defense secretary he would oppose it. Institutionally, the military would oppose it. The process to produce FM’s and similar doctrine and procedures is highly bureaucratic – so it would take time.
For all of Trump’s bluster I don’t think he’ll push the issue, particularly since he’s walking back stuff he said during the campaign just about everyday. If he really wants to bring back waterboarding, he can turn the CIA back on – it’s a much easier prospect.