The just released Yoo memo to the Pentagon allowed all kind of torture if there is a "necessity" or a "claim of self-defense" to be made.
The Washington Post headlines Memo: Laws Didn’t Apply to Interrogators
The headline is wrong. That is not what Yoo claims. He claims that torture is not unlawful, because there is a superseding law, the constitution, that enshrines the President with certain rights or even duties to ignore statutes enacted by congress.
The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president’s ultimate authority as commander in chief overrode such statutes.
Yoo says the law applies but the lawful law in this case is whatever the president says. The overwhelming legal opinion seems to be that Yoo is wrong in that argument.
But the discussion is already false when it is about the lawfulness or not-lawfulness of torture under the Yoo argument.
This is not about Youngstown. This is not about congressional versus presidential powers. Indeed I believe the argument is a trick to avert the real discussion.
The question that has to be asked is this: Is there a higher law than presidential power AND law enacted by Congress?
The modern philosophical opinion is that such law exist. The inalienable rights of each human are natural law that can not be breached by any men-enacted law. What Yoo really argues is legal positivism.
the idea that legal validity has no essential connection with morality or justice. A law is a valid law if posited, in the proper manner, by a recognized authority, regardless of its moral implications.
The U.S. declaration of independence refers to natural law:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, …
Not to be tortured is an inalienable right. To push this down to a question of constitutional presidential authority versus congress enacted law is the wrong track.
The U.S. elite seems to want to avoid the real discussion. That is, I believe, the reason why congress never put much energy into getting the Yoo memos declassified.
To recognize a higher moral law for all people that also binds the U.S. would interfere with building the U.S. empire and questions its justification.
To bicker in this case about presidential versus congression power is a diversion from the real question. Does natural law and human rights restrict the imperial pursuit of American interests?
The answer is of course "Yes!" and that answer tells you why the question isn’t asked.
Sidenote:
Interestingly, like many parts of modern "western" law, the concept of unalienable rights can be tracked back to early Sharia interpretation:
The concept of inalienable rights was found in early Islamic law and jurisprudence, which denied a ruler "the right to take away from his subjects certain rights which inhere in his or her person as a human being." Islamic rulers could not take away certain rights from their subjects on the basis that "they become rights by reason of the fact that they are given to a subject by a law and from a source which no ruler can question or alter."
Maybe that is another reason why Yoo and the Empire elite do not like to discuss this?