Tuesday, December 20, 2005

Breaking the Rules

Josh Marshall has a good post today in response to today's William Kristol and Gary Schmitt column in the Washington Post. Kristol and Schmitt bring up the possibility that the President may find him or herself in a situation where he or she is morally obligated to break a law for the good of the country. They then argue that inherent in the President's powers is the ability to set the law aside in such a situation, and do what the country needs.

Where Marshall deviates from Kristol and Schmitt is on the issue of whether the President is given this power, and what the consequences ought to be. Whether or not you're the President of the United States, if a you see that you must break the rules to make the morally correct decision, you ought to do it. You might be breaking the rules in error, and making the wrong decision - the rules are there because they generally govern what is moral behavior, after all - but that is something for society to judge, not the individual. That is, as Marshall says when recounting an argument made by Thomas Jefferson:

If you see the logic of Jefferson's argument it is not that the president is above the law or that he can set aside laws, it is that the president may have a moral authority or obligation to break the law in the interests of the Republic itself -- subject to submitting himself for punishment for breaking its laws, even in its own defense. Jefferson's argument was very much one of executive self-sacrifice rather than prerogative.


When you break the rules, you risk the possibility of doing so in error, or of the rule-makers not understanding that a particular benefit outweighs the drawbacks of breaking the rule itself. This applies equally to the President as it does any other US citizen, and to argue otherwise is to ask that the President be held completely unaccountable.

I should point out that this argument applies to the NSA wiretap business as much as it applies to arguments about torture and ticking time bombs (as I discussed previously). In the unlikely event that a person knows that torturing a detainee will bring vitally important information to our country, they may decide to do it, but they should always be held accountable for breaking the law. If it is ultimately found that torture or wiretaps brought enough benefit to Americans to outweigh the detrimental effects of breaking the laws, we have presidential pardons for that.

I shouldn't have to point out that the laws we have exist to preserve the safety of this country. Much more often than not, breaking the law is a danger to our society. Unless the circumstances of these wiretaps are extremely dire, I think it much more likely that Bush has endangered our contry by breaking the law than he has preserved our safety. This is why we impeach Presidents who break the law.

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