The Torture Question
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testimony of judge john roberts, senate judiciary committee, sept. 13, 2005

Here is an excerpt from the Sept. 13, 2005 hearing before the Senate Judiciary Committee on President Bush's nomination of Judge John G. Roberts Jr. to be the chief justice of the United States. Sen. Patrick J. Leahy, (D-Vt.), questioned Judge Roberts about the Bybee memo's conclusion that the president has "complete authority" to conduct the war on terror and is not bound by the federal law banning the use of torture. Judge Roberts replied, "No one is above the law," and said the president's authority would be "at its lowest ebb" in if he acted against Congressional authority under the Bybee memo.

LEAHY: We spoke about this again this morning, and I had told you when we met -- in fact, I gave you a copy of the Bybee memo so that this would not be a surprise to you. The Justice Department's Office of Legal Counsel issued a secret opinion in August 2002 which argued the president enjoys, quote, "complete authority over the conduct of war," close quote. And, quote, "The Congress lacks authority to set the terms and conditions under which the president may exercise his authority as commander in chief to control the conduct of operations during war," close quote. And then it took the argument to the extreme when it concluded the president, when acting as commander in chief was not bound -- was not bound -- by the federal law banning the use of torture.

In other words, the president would be above the law in that regard. You did not write that memo -- I hasten to add -- but you've seen it. And I asked Attorney General Gonzales for his view of this memo, in particular this sweeping assertion of executive power, which puts the president above the law. He never gave an answer on that and that's tone of the reasons why many had voted against his confirmation. So, now let me ask you this: Do you believe that the president has a commander-in-chief override to authorize or excuse the use of torture in interrogation of enemy prisoners even though there may be domestic and international laws prohibiting the specific practice?

ROBERTS: Senator, I believe that no one is above the law under our system, and that includes the president. The president is fully bound by the law, the constitution and statutes. Now, there often arise issues where there's a conflict between the legislature and the executive over an exercise of executive authority -- asserted executive authority. The framework for analyzing that is in the Youngstown Sheet and Tube case, the famous case coming out of President Truman's seizure of the steel mills.

LEAHY: The Supreme Court held that unconstitutional.

ROBERTS: Exactly. And the framework set forth in Justice Jackson's concurring opinion, which is the opinion that has sort of set the stage for subsequent cases, analyzes the issue in terms of one of three categories. If the president is acting in an area where Congress is supportive -- expressly supportive of his action -- the president's power is at its maximum. If the president is acting in an area such as you postulate under the Bybee memo where the president is acting contrary to congressional authority, what Justice Jackson said is the president's authority is at its lowest ebb. It consists solely of his authority under the Constitution, less whatever authority Congress has.

And then, of course, there's the vast little area where courts often have to struggle because they can't determine whether Congress has supported a particular exercise or not. The Dames & Moore case, for example, is a good example of that.

SPECTER: Would you consider -- go ahead.

ROBERTS: I just going to say the first issue for a court confronting the question you posed would be whether Congress specifically intended to address the question of the president's exercise of authority or not.

LEAHY: Well, yes, I would think that if you pass a law saying nobody in our government shall torture, I think that's pretty specific. But let me ask you this: Is Youngstown settled law? Would you consider Youngstown settled law?

ROBERTS: I think the approach in the case is one that has guided the court in this area since 1954, '52, whatever it was.

LEAHY: The reason I ask that, when Mr. Bybee wrote this memo, he never cited Youngstown. I think it was Harold Koh, the dean at the Yale Law School who said this was a stunning omission. I don't agree with that. The president, instead, went ahead and appointed -- or nominated Mr. Bybee to a federal judgeship.

ROBERTS: Youngstown's a very important case in a number of respects; not least the fact that the opinion that everyone looks to, the Jackson opinion, was by Justice Jackson who was, of course, FDR's attorney general and certainly a proponent of expansive executive powers …

LEAHY: You've also said he was one of the justices you admire the most.

ROBERTS: He is, for a number of reasons. And what's significant about that aspect of his career is here's someone whose job it was to promote and defend an expansive view of executive powers as attorney general, which he did very effectively. And then as he went on the court, as you can tell from his decision in Youngstown, he took an entirely different view of a lot of issues; in one famous case even disagreeing with one of his own prior opinions. He wrote a long opinion about how he can't believe he once held those views. …

LEAHY: Are you sending us a message?

ROBERTS: Well, I'm just saying-- One reason people admire Justice Jackson so much is that, although he had strong views as attorney general, he recognized, when he became a member of the Supreme Court, that his job had changed and he was not the president's lawyer, he was not the chief lawyer in the executive branch. He was a justice sitting in review of some of the decisions of the executive. And he took a different perspective. And that's, again, one reason many admire him, including myself.

LEAHY: The reason I ask -- I mean, I thought the memo was outrageous. And once it became public -- not until it became public, but after it became public, the president disavowed it and said he is opposed to torture, and I commend him for that. Many wish the administration had taken that position prior to the press finding out about it. But in the Jackson opinion -- and I just pulled it out here -- he says, "The president has no monopoly of war powers, whatever they are. Congress cannot deprive the president of the command of the Army and Navy. Only Congress can provide him with an Army and Navy to command. Congress is also empowered to make rules for the government and regulation of land enabled forces. By which it may, to some unknown extent, impinge upon even command functions." Do you agree that Congress can make rules that may impinge upon the president's command functions?

ROBERTS: Certainly, Senator. And the point that Justice Jackson is making there is that the Constitution vests pertinent authority in these areas in both branches. The president is the commander in chief, and that meant something to the founders.

On the other hand, as you just quoted, Congress has the authority to issue regulations governing the armed forces: another express provision in the Constitution. Those two can conflict if by making regulations for the armed forces Congress does something that interferes with, in the president's view, his command authority. And in some cases those disputes will be resolved in court, as they were in the Youngstown case. …


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posted oct. 18, 2005

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