Now it’s John Yoo’s head that’s exploding.
During the just-underway second day of questioning for Attorney General-designee Michael Mukasey, Sen. Arlen Specter (R-PA) asked whether there’s any inherent presidential power to order torture, a central constitutional contention of former Office of Legal Counsel attorney John Yoo in the famous August 1, 2002 Bybee memo (pdf). Mukasey’s answer? “The president can’t authorize torture because torture is barred both by statute and the constitution.” Mukasey, firmly in the realm of mainstream legal opinion, said the 5th, 8th and 14th amendment prohibit torture.
The answer is revealing less for the specifics of the answer than for Mukasey’s perspective on the president’s constitutional authority. It turns out, contra Yoo, that the president can’t do anything he wants during wartime, according to the new would-be attorney general.