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Sunday, April 26, 2009

Enhanced Interrogations: the Constitutional Argument

It's true. I am no Constitutional scholar but I will give it my best shot anyway.

To start the argument, I will pose a question. When can the President use their power as Commander in Chief? Now, this is a question without a definitive answer. In my opinion however, that is a power the President always has. Now, to make sure that the president doesn't abuse this sweeping power, the Constitution has laid in place several checks on it. The biggest check is the oversight power of the Congress. The second check is the power of the press.

As such, the president has carte blanche to do just about anything as commander in chief. It is then the job of the Congress and the press to make sure that this power is not abused. Now, let's apply that to the issue of enhanced interrogations. In this case, the president, acting as commander in chief, ordered the CIA to use certain techniques on certain Al Qaeda suspects in certain situations. In much the same way, FDR used the same power to create an office of censorship during WWII, Wilson created a Creel Commission during WWI, and Lincoln suspended habeas corpus during the Civil War. Then, after the fact, the Congress was duly informed and briefed. In fact, throughout the process, the Congress was briefed. If anyone felt there was abuse, it was then the time to voice concerns and investigate. In fact, the Congress didn't merely oversee the process but they funded it. Throughout the process, they funded it.

In this case, the Constitutional process was duly followed. The president acted as commander in chief. He personally took responsibility for the order, as is his power as commander in chief. In each case, the Congress was briefed. The Congress never objected or investigated. Furthermore, they continued to fund the program. Now, years later, some want to go back and do investigations after the fact. If we allow this, all policies would eventually wind up in court. Just imagine if a small government conservative winds up president and then decides that universal health care is unconstitutional. Then, what...will they haul in Obama's health secretary to face charges?

Then, there are those that say that the Constitution was followed but we broke international law bu violating the United Nations Convention Against Torture. This is a matter of debate. First, here is how the convention defines torture.

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

That's hardly definitive. What exactly is severe? Is it severe to simulate drowning, play loud music, or hold someone in a dark and cold room? That's unclear and ultimately up to each individual country to define.

There's more. The Convention sets out no specific remedies if a country did violate. Even if we did, what does that mean? There is no specific punishment for violation. So, what is anyone supposed to do with the knowledge that we did? If the UN wants to bring sanctions against the U.S., let them bring that to the floor. Since we have veto power, I can only assume that we will veto any such sanction.

1 comment:

Brooks Lindsay said...

We made a pro/con article on enhanced interrogation techniques on Debatepedia. You may be interested: