by H. N. Burdett
Yale University law professor Bruce Ackerman was among the many Americans left in a state of shock when the Justice Department exonerated Jay S. Bybee and John C. Yoo, who while serving in the Office of Legal Counsel in George W. Bush's White House were responsible for the notorious memorandum authorizing torture to derive information from enemy combatants.
Ackerman, who wrote some of the more brilliant challenges of the allegedly stolen presidential election of 2000, observes that the OLC was once primarily staffed by career lawyers. But by the time George W. Bush entered the White House it was overrun by political appointees such as Bybee and Yoo, who are by definition there to serve their benefactor rather than the public.
The professor worries that the Justice Department decision to not cite the authors of the memorandum for any wrongdoing established "a dangerous precedent."
In a Washington Post oped piece, Ackerman expresses concern that the memorandum willl serve as the precedent for giving the green light to the president, as commander in chief, to ignore Congress's statutory prohibition on torture and "order the military or the CIA to engage in any and all forms of abuse."
According to the Justice Department, Bybee and Yoo "acted professionally" in defending unchecked presidential power considering that they had the support of other political appointees in the OLC and prior to the issuance of the memorandum the White House was demanding a quick decision.
Ackerman believes this virtually guarantees that future political appointees will make certain they line up like-minded colleagues before releasing extremist legal positions in their memorandums during the next crisis. He further feels, however, that under the constitutional admonition that the president "take care that the laws be faithfuly executed," both the Commander in Chief and Congress have an obligation to fix that which is only too apparently broken.
The starting point, Ackerman feels, should be for Congress to work with President Obama to establish an executive tribunal that would ensure fidelity to the rule of law.
Rather than acting as lawyers for the sitting president, tribunal members would function as judges for the executive branch, nine in all, who would serve staggered 12-year terms. Thus, the president would be able to nominate three judges during a four-year period. The president's nominees would require Senate confirmation, an incentive for the chief executive to select fair-minded candidates rather than legal ideologues.
House and Senate committees would be able to challenge presidential actions before the tribunal. Once the panel has heard both sides of an argument, it would lay down the law for the executive branch. Should a private party gain standing to challenge an action by the tribunal, the matter could be heard by the Supreme Court, which could overrule decisions by the panel.
Noting that "if history is any guide, the Supreme Court will intervene on national security matters only rarely," Ackerman said: "In the meantime, the executive tribunal will assure Americans that their freedoms are no longer at the tender mercies of the Yoos of the world."
The Yale professor's plan to restore integrity to the process -- so obviously wanting in the torture memorandum case -- has sufficient merit that Congress and the president should get the wheels rolling for it, or something similar, to be created post haste.
Yale University law professor Bruce Ackerman was among the many Americans left in a state of shock when the Justice Department exonerated Jay S. Bybee and John C. Yoo, who while serving in the Office of Legal Counsel in George W. Bush's White House were responsible for the notorious memorandum authorizing torture to derive information from enemy combatants.
Ackerman, who wrote some of the more brilliant challenges of the allegedly stolen presidential election of 2000, observes that the OLC was once primarily staffed by career lawyers. But by the time George W. Bush entered the White House it was overrun by political appointees such as Bybee and Yoo, who are by definition there to serve their benefactor rather than the public.
The professor worries that the Justice Department decision to not cite the authors of the memorandum for any wrongdoing established "a dangerous precedent."
In a Washington Post oped piece, Ackerman expresses concern that the memorandum willl serve as the precedent for giving the green light to the president, as commander in chief, to ignore Congress's statutory prohibition on torture and "order the military or the CIA to engage in any and all forms of abuse."
According to the Justice Department, Bybee and Yoo "acted professionally" in defending unchecked presidential power considering that they had the support of other political appointees in the OLC and prior to the issuance of the memorandum the White House was demanding a quick decision.
Ackerman believes this virtually guarantees that future political appointees will make certain they line up like-minded colleagues before releasing extremist legal positions in their memorandums during the next crisis. He further feels, however, that under the constitutional admonition that the president "take care that the laws be faithfuly executed," both the Commander in Chief and Congress have an obligation to fix that which is only too apparently broken.
The starting point, Ackerman feels, should be for Congress to work with President Obama to establish an executive tribunal that would ensure fidelity to the rule of law.
Rather than acting as lawyers for the sitting president, tribunal members would function as judges for the executive branch, nine in all, who would serve staggered 12-year terms. Thus, the president would be able to nominate three judges during a four-year period. The president's nominees would require Senate confirmation, an incentive for the chief executive to select fair-minded candidates rather than legal ideologues.
House and Senate committees would be able to challenge presidential actions before the tribunal. Once the panel has heard both sides of an argument, it would lay down the law for the executive branch. Should a private party gain standing to challenge an action by the tribunal, the matter could be heard by the Supreme Court, which could overrule decisions by the panel.
Noting that "if history is any guide, the Supreme Court will intervene on national security matters only rarely," Ackerman said: "In the meantime, the executive tribunal will assure Americans that their freedoms are no longer at the tender mercies of the Yoos of the world."
The Yale professor's plan to restore integrity to the process -- so obviously wanting in the torture memorandum case -- has sufficient merit that Congress and the president should get the wheels rolling for it, or something similar, to be created post haste.
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