News Release

Questions Not Asked: · Torturing People’s Children · War Powers · Geneva Conventions


Cassel is director of Notre Dame Law School’s Center for Civil and Human Rights. He said today: “At a time when the commander in chief asserts that his war powers give him carte blanche, it is critical that the Supreme Court be composed of individuals committed to the rule of law. Justices must be prepared to tell a president who claims the power to torture in our name, that American laws and values give a very simple answer — and that answer is no.”

On Dec. 1, 2005, Cassel debated John Yoo, who was mentioned by Sen. Biden on Thursday morning and who has been one of the main legal planners of the Bush administration’s torture policies. Here is part of their exchange:

Cassel: “If the president deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?”
Yoo: “No treaty.”
Cassel: “Also no law by Congress — that is what you wrote in the August 2002 memo.”
Yoo: “I think it depends on why the president thinks he needs to do that.”

Audio available
Further background

Senior fellow at The Independent Institute, a non-partisan think tank, Eland commented today: “Alito said that the Constitution has meaning independent of what he or anyone else might like it to say. I couldn’t agree more. The Constitution clearly states that it is up to Congress to decide on war. That may not be fashionable, given that the U.S. hasn’t fought a declared war since World War II, but that is what the Constitution says. All the senators asking him questions are pledged to uphold the Constitution, including Article I, Sec. 8, which gives to Congress its war powers. They should ask Alito what the Constitution says about what branch of government should decide on war. Particularly those members, mostly Republicans, who claim the mantle of original intent of the Constitution, should be upholding the power of the Congress on its war powers. The president is claiming extraordinary war powers when there is no declared war.

“Also, the Bush White House’s lawyers have taken the position that the president, in wartime, is allowed to disregard laws passed by Congress. Examples are domestic spying without warrants, which are required by statute, and declaring the option to circumvent an anti-torture statute recently passed by Congress. The president is reading his constitutional authority as commander-in-chief much much wider than the founders had intended. Judge Alito should be asked to delineate his conception of the scope of the executive power under the commander-in-chief provision.” Eland is a director of the Institute’s Center on Peace and Liberty and author of the book The Empire Has No Clothes.
More Information

Boyle is professor of law at the University of Illinois. Alito stated Wednesday: “I think that the war powers are divided between the executive branch and the Congress.”

Boyle said today: “Article I, Sec. 8 of the Constitution says: ‘The Congress shall have power … to declare war…’ The president has nothing to do with it. When Congress declares war, then that declaration triggers the Commander in Chief Clause of the Constitution. Alito is mistakenly attributing War Powers to the president in violation of the War Powers Clause of the U.S. Constitution and in violation of Congress’s War Powers Resolution of 1973, which is ‘the supreme Law of the Land’ according to Article VI of the Constitution. Alito’s argument is a fundamental alteration of one of the most basic principles for both separation of powers and checks and balances set up for our Republic by the Founders in the U.S. Constitution.

“But this unconstitutional argument for presidential war powers is part of the standard Federalist Society ideology propounded by its prominent members such as Alito, John Roberts, and John Yoo. It has led to the abuses of Guantanamo, Abu Ghraib, pervasive torture, ‘extraordinary renditions,’ criminal NSA spying on U.S. citizens, ‘enemy combatants,’ wholesale violations of the Geneva Conventions, assassinations, massive religious and racial profiling of Muslims/Arabs/Asians, an unconstitutional war against Iraq and the numerous other constitutional atrocities perpetrated by Bush’s hyper-imperial presidency. The Democrats have not asked serious questions about most of these issues.” Boyle is author of the book Destroying World Order.

For more information, contact at the Institute for Public Accuracy:
Sam Husseini, (202) 347-0020; or David Zupan, (541) 484-9167