I can't say with certainty that no one did anything at all inappropriate in the four matters Dahlia cites but then Dahlia can do no more than claim they are all so obviously terrible and rely on what she imagines to be widespread agreement with her. Then, verging on hysteria, she asserts that the bad guys in the war on terror (in quotes, of course) will turn out to be the lawyers she despises -- surprisingly, not the terrorists, like those who crashed airplanes on 9/11 or those just going on trial in the UK for plotting to blow up another dozen US-bound airliners.

Meanwhile, over under "Convictions," Slate's bevy of legal experts throw rhetorical bombs at the so-called "torture memo," saying nasty things about Yoo, questioning the details of the process by which Yoo wrote the memo, agreeing with each other about the atmospherics surrounding the interrogation controversies, and repeating over and over how obviously wrong and manifestly ludicrous were Yoo's analyses and arguments. One writer, apparently not content with assailing the memo for providing the legal justification for such horrors as slapping and sleep-depriving al Qaeda detainees, just makes stuff up by casually suggesting it justified poking out eyes and pouring acid on people (in fact, it distinguished such real tortures from permitted techniques).

The one thing Dahlia and the rest of these folks DO NOT DO is to explain why Yoo is wrong. OK, other lawyers who came along at DOJ believed him off-base and this and other memos were revised and policies changed. Was it, in fact, outrageous or stupid of Yoo to say the President has the authority to order -- or countenance -- conduct by US military or intelligence personnel outside the US in the course of military or intelligence operations crucial to the nation's defense that would, under other, very different circumstances, be unlawful, or at least impermissible? That's the question and none of these folks seems prepared to answer it except by invective and mockery.

But it's not an easy question. It is crystal clear that the President -- whoever holds the office -- has sweeping powers in foreign relations and military affairs. No President -- not even Carter -- has ever conceded any limitation on Presidential authority to order troops into combat, the War Powers Act notwithstanding. The extent or limits of this Presidential authority are what is at issue -- but Dahlia and company simply assume what he feel like assuming about this issue.

It may well be that policies and practices pursued under Bush have been unwise -- or even reprehensible -- but that is a separate issue and one that our political system, not lawyers, will settle.

In any case, while there may be widespread agreement among Slate readers that these policies are tantamount to war crimes, I doubt that more than a small percentage of Americans care a fig about how Khalid Sheik Muhammed was interrogated, except that many wish he'd been beaten to a pulp. If there is another serious attack on the US, God forbid, that's when the gloves will truly come off, with members of Congress of both parties who've been critical of "torture," Gitmo, rendition, etc. changing their tunes.

Short of that, I predict that as soon as a Democrat becomes President next year, these complaints about Presidential excesses and supposed siezure of power will cease on Capitol Hill and among Democratic partisans, because President Obama, like all his predessors, will want to maintain the authority of his office.

Harry Truman, in one of his many outstanding performances, went so far as to refuse repeatedly to seek Congressional approval of his order to send US troops into Korea to resist the North Korean invasion -- no "war authorization resolutions" for Harry -- because, as he told Dean Acheson, he wanted to make surehe passed along to his successors the powers of the Presidency he inherited from George Washington on.

Grumble as political opponents regularly do, the American Presidency has always been an enormously powerful executive office and every President has been intensely aware of this

"Grumble as political opponents regularly do, the American Presidency has always been an enormously powerful executive office and every President has been intensely aware of this"

I think many historians and political scientists, as well as lawyers, will disagree with this assertion.

They will probably agree, however, that the American Constitution did not contemplate a King, above and beyond the law.

Desperate times sometimes call for desperate measures, and Lincoln, as the best example, stretched his powers (e.g., by suspending habeas) to preserve the Union. In such instances, history is the final judge.

Mostly, though, America has not bought the Nixonian theses that when the President does it, it is not against the law.

I cannot know for certain--none of us can with absolute assurance--that history will condemn Bush's assertion, with the support of his legal minions, that the Commander in Chief power trumps all provisions of domestic and international law. But I am as confident of it as I can be on any such controversial matter.

The implicit assumption of Bush, his lawyers, and this commentator that other branches of government cannot be trusted to join in protecting American security is obscene.

The concern that future presidents may try to avail themselves of precedents for executive power-grabs set by this Administration is a realistic concern, and it is one of the reasons such power grabs must be resisted, now and forever.

As another commentator has suggested, better that extraordinary measures be taken, if at all, in open violation of the law, with forthright executive acknowledgment and attempted justification and taking of both political and historic responsibility, than that our entire structure of law and shared and separated powers and responsibilities be undermined forever. --The Wise Bard

Yoo's "argument" relies on a presumption:( If the President does X during wartime in his capacity as Commander in Chief, it cannot be illegal.)

..which was later refined into a circle: (If the President did X during wartime based on the considered legal opinion of his advisors, he enjoys immunity and because they are advising the President, the legal advisors also enjoy immunity)

Neat huh?

If you can accept this with a straight face, it permits the Chimp in Chief to paint with a pretty broad brush. For this, we can thank (indict?) Yoo, Gonzalez, and Addington. Cheney is not a lawyer but should be joined as a co-conspirator.

Wise Bard: Don't you see that you're just compounding Dahlia's mistake by simply asserting what you think is obvious -- that the Administration regarded this President as "above the law" and the President acted as if "Commander in Chief power trumps all provisions of domestic and international law." And you're doing it for the same reason as Dahlia and others in this Slate dicsussion - because you don't like the policy choices made by the President.

Yoo himself has said recently that this and other memos he wrote or helped write were not policy documents but legal documents. His aim was to provide guidance as to what would be legal and what not. While there is room for disagreement about legalities, as well, it's a lot less room than that for policy disagreements.

Central to Yoo's arguments was the Constitutional authority of the President -- and the extent to which it has been or could be modified or constrained by the Constitutional exercise of Congressional or judicial powers -- or not.

Dahlia and company simply do not engage his argument -- they just ignore it and heap abuse on Bush, et al.