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Totalitarian Reasoning in the Bybee Memo

March 6, 2010

See if you can follow the Bybee Memo’s reasoning:

• The United States is at war with al Qaeda. Bybee Memo, Part V. A.

• The President’s Commander-in-Chief power gives him sole and complete authority over the conduct of war. Id at Part V. B.

• Statutes should be interpreted to avoid constitutional problems, and a criminal statute cannot be interpreted in such a way as to infringe upon the President’s Commander-in-Chief power. Id. at Part V. B.

• Accordingly, OLC must construe the torture statute as “not applying to interrogations undertaken pursuant to [the President’s] Commander-in-Chief authority.” Part V. B.

• In addition, the detention and interrogation of enemy prisoners is one of the core functions of the Commander-in-Chief. Id. at Part V. C.

• “Any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.” Part V. C.

• Therefore, prosecution under the torture statute “would represent an unconstitutional infringement of the President’s authority to conduct war.” Id at Part V. C.; Introduction; Conclusion (p. 200).

It would be irresponsible of me not to point out that the Commander-in-Chief Power section of the Bybee Memo was repeatedly condemned within the OLC itself. Jack Goldsmith, for example, believed that the section was “overly broad and unnecessary, but also that it contained errors and constituted an ‘advance pardon'” (OPR Report, p. 199).

The Bybee Memo’s reasoning is, nevertheless, staggering in its depravity. The Commander-in-Chief Power section is — dare I say it? — nothing short of a flirtation with, if not the heavy petting of, totalitarianism.

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