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The issue is that the white house council can declare anything they want to be legal, and unless the supreme court has ruled on that issue specifically everyone

The issue is that the white house council can declare anything they want to be legal, and unless the supreme court has ruled on that issue specifically everyone involved has immunity from prosecution until the supreme court does rule on it. See how the council's torture memos played out https://en.m.wikipedia.org/wiki/John_Yoo https://en.m.wikipedia.org/wiki/John_Yoo

billme 6y ago
Supreme Court has ruled on the executive branches limited legal authority, even during war time: https://en.m.wikipedia.org/wiki/Youngstown_Sheet_%26_Tube_Co._v._Sawyer https://en.m.wikipedia.org/wiki/Youngstown_Sheet_%26_Tube_Co... That being, “The President did not have the inherent authority to seize private property in the absence of either specifically enumerated authority under Article Two of the Constitution or statutory authority conferred on him by Congress.” My rewording, “The President [does] not have the inherent authority to [do anything] in the absence of either specifically enumerated authority under Article Two of the Constitution or statutory authority conferred on [them] by Congress.”
- voxic11 6y ago
  I don't disagree that legally the authority of the president is limited. But in practice the president can order and see executed the torture of innocent people for years without any possibilty of justice for those victimized. This is because legally the president and anyone acting under his command are immune from prosecution if they acted according to legal guidance from the white house council and the supreme court hasn't specifically ruled that exact behavior illegal. I guess my question for you if there is a difference between something being legal and something being illegal but those doing it are immune from prosecution.
  - billme 6y ago
    >> “legally the president and anyone acting under his command are immune from prosecution if they acted according to legal guidance from the white house council“ Source? As far as I am able to tell, this is false; as in it is not that they are immune from prosecution, but that prosecution has never occurred. Clearly, if war crimes were ever brought, regardless of the laws, commands, etc - it would have not resulted in being immune from prosecution.
    - voxic11 6y ago
      > Under recent Supreme Court law, however, we are compelled to conclude that, regardless of the legality of Padilla's detention and the wisdom of Yoo's judgments, at the time he acted the law was not "sufficiently clear that every reasonable official would have understood that what he [wa]s doing violate[d]" the plaintiffs' rights. Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011) (internal quotation marks omitted). We therefore hold that Yoo must be granted qualified immunity, and accordingly reverse the decision of the district court. https://www.leagle.com/decision/infco20120502152.xml https://www.leagle.com/decision/infco20120502152.xml
      - billme 6y ago
        As it relates to torture, war crimes apply regardless of if a party believed they were acting legally. As for the case you cited, it was a civil suit, therefore ruling only covers civil law, not criminal. That said, does not protect "the plainly incompetent or those who knowingly violate the law". [1] All Presidents are fully aware by law their powers are limited, no reasonable official would claim otherwise. No reasonable person or official would claim their actions were legal, hence why they knowingly hid them from FISA & Congress. [1] Malley v. Briggs, 475 U.S. 335, 341 (1986).
      - dragonwriter 6y ago
        That deals with immunity to civil liability, not immunity to criminal prosecution. There's no necessary relationship between them.
        voxic11 6y ago
        The president has the power to fire any federal prosecutor, there should be no expectation that any action he approves of will ever result in criminal prosecution. Civil liability is the only mechanism for holding those in the executive accountable besides impeachment.
        voxic11 6y ago
        The president has the power to fire any federal prosecutor, there should be no expectation that any action he approves of will ever result in criminal prosecution. Civil liability is the only mechanism for holding those in the executive accountable besides impeachment. Many violations of rights are not criminally prosecutable anyways.
  - dragonwriter 6y ago
    > legally the president and anyone acting under his command are immune from prosecution if they acted according to legal guidance from the white house council “Counsel”, and, no, they aren't (there'd be a stronger, but not ironclad because of the reasonableness proviso, case if they were acting under guidance from the Justice Department, and given the Constitutional structure of the government, from the President himself, compared to White House Counsel, due to the general principal that the only case where ignorance of the law is an excuse under criminal law is when the mistake of law results from reasonable reliance on guidance from officials responsible for enforcing the law.)
    - billme 6y ago
      >> “due to the general principal that the only case where ignorance of the law is an excuse under criminal law is when the mistake of law results from reasonable reliance on guidance from officials responsible for enforcing the law” Request for relevant citation(s).
      - dragonwriter 6y ago
        The foundational case on the relevant principal (which reversedas a matter of Constitutional law the common-law principal that mistake of law was never a defense) is Raley v. Ohio, 360 U.S. 423 (1959).
        salawat 6y ago
        Can you explain how someone is to hold the President accountable for an illegal act if it is committed in such a way where no citizen has standing to bring suit? The way I understand it is that technically the fellow upthread is technically right in the eyes of the law; until a judge rules that something is illegal, it isn't. That's a staple of common law jurisprudence. Judges discover law. It is still possible even after the finding of illegality to continue to perpetuate the activity as well given that the legislature ends up too locked up to successfully convict the President for malfeasance, and there is still no means through which the sitting President's pardon power or executive discretion can be overcome. And again, the lack of standing issue is also alarming in that... Well, maybe you can see something is clearly wrong, but if the wronged can't file a suit in their own defense, and no one else has standing... I don't know, I feel like I fell off a wagon after reading that post. There's a vague sense of possible loophole there.

billme 6y ago

Supreme Court has ruled on the executive branches limited legal authority, even during war time: https://en.m.wikipedia.org/wiki/Youngstown_Sheet_%26_Tube_Co._v._Sawyer https://en.m.wikipedia.org/wiki/Youngstown_Sheet_%26_Tube_Co... That being, “The President did not have the inherent authority to seize private property in the absence of either specifically enumerated authority under Article Two of the Constitution or statutory authority conferred on him by Congress.” My rewording, “The President [does] not have the inherent authority to [do anything] in the absence of either specifically enumerated authority under Article Two of the Constitution or statutory authority conferred on [them] by Congress.”

voxic11 6y ago
I don't disagree that legally the authority of the president is limited. But in practice the president can order and see executed the torture of innocent people for years without any possibilty of justice for those victimized. This is because legally the president and anyone acting under his command are immune from prosecution if they acted according to legal guidance from the white house council and the supreme court hasn't specifically ruled that exact behavior illegal. I guess my question for you if there is a difference between something being legal and something being illegal but those doing it are immune from prosecution.
- billme 6y ago
  >> “legally the president and anyone acting under his command are immune from prosecution if they acted according to legal guidance from the white house council“ Source? As far as I am able to tell, this is false; as in it is not that they are immune from prosecution, but that prosecution has never occurred. Clearly, if war crimes were ever brought, regardless of the laws, commands, etc - it would have not resulted in being immune from prosecution.
  - voxic11 6y ago
    > Under recent Supreme Court law, however, we are compelled to conclude that, regardless of the legality of Padilla's detention and the wisdom of Yoo's judgments, at the time he acted the law was not "sufficiently clear that every reasonable official would have understood that what he [wa]s doing violate[d]" the plaintiffs' rights. Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011) (internal quotation marks omitted). We therefore hold that Yoo must be granted qualified immunity, and accordingly reverse the decision of the district court. https://www.leagle.com/decision/infco20120502152.xml https://www.leagle.com/decision/infco20120502152.xml
    - billme 6y ago
      As it relates to torture, war crimes apply regardless of if a party believed they were acting legally. As for the case you cited, it was a civil suit, therefore ruling only covers civil law, not criminal. That said, does not protect "the plainly incompetent or those who knowingly violate the law". [1] All Presidents are fully aware by law their powers are limited, no reasonable official would claim otherwise. No reasonable person or official would claim their actions were legal, hence why they knowingly hid them from FISA & Congress. [1] Malley v. Briggs, 475 U.S. 335, 341 (1986).
    - dragonwriter 6y ago
      That deals with immunity to civil liability, not immunity to criminal prosecution. There's no necessary relationship between them.
      - voxic11 6y ago
        The president has the power to fire any federal prosecutor, there should be no expectation that any action he approves of will ever result in criminal prosecution. Civil liability is the only mechanism for holding those in the executive accountable besides impeachment.
      - voxic11 6y ago
        The president has the power to fire any federal prosecutor, there should be no expectation that any action he approves of will ever result in criminal prosecution. Civil liability is the only mechanism for holding those in the executive accountable besides impeachment. Many violations of rights are not criminally prosecutable anyways.
- dragonwriter 6y ago
  > legally the president and anyone acting under his command are immune from prosecution if they acted according to legal guidance from the white house council “Counsel”, and, no, they aren't (there'd be a stronger, but not ironclad because of the reasonableness proviso, case if they were acting under guidance from the Justice Department, and given the Constitutional structure of the government, from the President himself, compared to White House Counsel, due to the general principal that the only case where ignorance of the law is an excuse under criminal law is when the mistake of law results from reasonable reliance on guidance from officials responsible for enforcing the law.)
  - billme 6y ago
    >> “due to the general principal that the only case where ignorance of the law is an excuse under criminal law is when the mistake of law results from reasonable reliance on guidance from officials responsible for enforcing the law” Request for relevant citation(s).
    - dragonwriter 6y ago
      The foundational case on the relevant principal (which reversedas a matter of Constitutional law the common-law principal that mistake of law was never a defense) is Raley v. Ohio, 360 U.S. 423 (1959).
      - salawat 6y ago
        Can you explain how someone is to hold the President accountable for an illegal act if it is committed in such a way where no citizen has standing to bring suit? The way I understand it is that technically the fellow upthread is technically right in the eyes of the law; until a judge rules that something is illegal, it isn't. That's a staple of common law jurisprudence. Judges discover law. It is still possible even after the finding of illegality to continue to perpetuate the activity as well given that the legislature ends up too locked up to successfully convict the President for malfeasance, and there is still no means through which the sitting President's pardon power or executive discretion can be overcome. And again, the lack of standing issue is also alarming in that... Well, maybe you can see something is clearly wrong, but if the wronged can't file a suit in their own defense, and no one else has standing... I don't know, I feel like I fell off a wagon after reading that post. There's a vague sense of possible loophole there.