Barry Eisler

Wednesday, August 06, 2014

Don't Cheer Obama's "Ban" on Torture

Guest blogging today with the awesome Freedom of the Press Foundation. Here you go:

I have a question for all the well-meaning people who praise President Obama for “banning” torture:
Would you also find it helpful for the president to ban kidnapping? Child abuse? Mail fraud?
Maybe you would. After all, no one likes kidnapping, child abuse, or mail fraud. Maybe it would be good if the president banned them.
But of course, it would be incoherent to talk of the president banning such practices—because these things are all illegal. And in a democracy—in a country under the rule of law—the president has no more power to prohibit what’s illegal than he does to permit it.
Fair enough, you might say, but isn’t banning what’s already illegal just kind of a suspenders-and-a-belt thing? A bit of emphasis, an arguably redundant exclamation point?
No, it’s not. Purporting to ban what is already illegal is in fact terribly insidious. And here’s why, in two axioms.
1. What fundamentally makes something a law is that if you violate it, you will face punishment.
2. What one president can prohibit, another can permit.
Put these two concepts together, and what do you get when a president reacts to governmental law-breaking by: (1) not prosecuting anyone involved; and (2) instead “banning” what they did? 
What you get is not a proscription of law, but a policy of choice. 
And this is why Obama’s notion that he has the power to “ban” torture, and his failure to prosecute anyone who ordered it, is...
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