Taming The Prince, Ctd.

03 May 2009 06:16 pm

A reader writes:

One small point that I think is worth noting, and that I think can be used against some of the conservative defenders of both unlimited executive power and torture, is the following. Isn't it the case that, say, Locke's understanding of prerogative is such that by definition we cannot restrict its use ahead of time, but that after the fact there will be a judgment of sorts, a post-hoc reckoning with what happened?

I fully admit that in Locke -- and, I would argue, The Federalist and Lincoln -- there's a fairly robust notion that action sometimes will need to be taken with great dispatch, or where the law is silent, or even, at times, against the law. Because such situations will not be regular or normal, they necessarily fall within the realm of prudence and prerogative. They are exceptions to the rule and thus, in a way, extra-legal. Locke writes that such actions can be undertaken for "the common good;" Lincoln believes they can be undertaken to defend the Constitution itself (violating some facet of the Constitution to preserve the continued use of the document itself).

But all these theories include the idea that because such actions cannot really be limited beforehand, they can be judged, and punished, afterwards (thus Locke's famous "appeal to the heavens"). And isn't that what we are doing now?

We are sorting out what happened, seeing what information was gained by the use of torture (or techniques close to it), and ultimately determining to what extent, if any, it was "worth it." The admission that prerogative power can be quite expansive, almost unlimited, prospectively means nothing in excusing the use of such power retrospectively. According to the conservative political theorists who reminded us of the nature of executive power, we are doing precisely what their own theories said we could and must do! My suspicion is that after they lose the arguments about the more technical legal aspects of torture, which your own work has done so much to expose, they will move on to more broad, theoretical arguments about prudence, prerogative, and the executive branch. They should lose that argument too.

(Photo: David Addington, Cheney's consigliere, by Melissa Golden/Getty.)

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