constitutionally authorized genocide?

[Marty Lederman]

The issue Andy Koppelman raised, based on this Administration's memos, is not whether the President can do "X" (e.g., torture, genocide, bombing, etc.) in the absence of statutory authorization, but instead whether he can do "X" in the teeth of a statutory prohibition.
  ----- Original Message ----- 
  From: MARK STEIN 
  To: conlawprof at lists.ucla.edu 
  Sent: Friday, June 02, 2006 5:02 PM
  Subject: Re: constitutionally authorized genocide?



  If we were having this discussion during WWII, I don't think anyone would argue that the President needed specific authorization from Congress for the strategic bombing of German cities, or to use nuclear weapons on Japan (I assume none of that was in fact specifically authorized).

  Now, however, I would argue that general authorizations incorporate some modern concepts of international humanitarian law, so that genocide, for example, would not be authorized (It would also, of course be a violation of the Genocide Convention, to which the U.S. is a party).


  Mark

  Marty Lederman <marty.lederman at comcast.net> wrote:
    I should add, in case it was not clear, that this "logic" -- that the President could order genocide, or use of nuclear weapons, or torture, in order to defeat the enemy -- does not, in my view, mean that the C-i-C argument is wrong.  Radical, yes, and ultimately misguided, IMHO, but not wrong because of such implications.


    ----- Original Message ----- 
    From: "Andrew Koppelman" <akoppelman at law.northwestern.edu>
    To: "Scott Gerber" <s-gerber at onu.edu>
    Cc: <conlawprof at lists.ucla.edu>
    Sent: Friday, June 02, 2006 3:56 PM
    Subject: Re: constitutionally authorized genocide?


    > It's not a slippery slope argument.  It's a legal question about the logic 
    > of the position.  Is it or is it not the case that, under the 
    > administration's argument, genocide would be authorized?  I am not claiming 
    > that Bush would commit genocide.
    > 
    > 
    > At 02:02 PM 6/2/2006, Scott Gerber wrote:
    >>Andrew:
    >>
    >>Perhaps you are making a slippery slope argument? (I think Eugene V
    >>would have much to say on this point, in light of his Harvard Law
    >>Review piece.)  Or perhaps you aren't missing anything?  (I think Sandy
    >>L could speak to this point, as a number of his posts in recent months
    >>concern the president's alleged authoritarian tendencies.)
    >>
    >>Scott
    > 
    > 
    > ________________________________________
    > 
    > Andrew Koppelman
    > Professor of Law and Political Science
    > Northwestern University School of Law
    > 357 East Chicago Avenue
    > Chicago, IL  60611-3069
    > (312) 503-8431
    > mailto:akoppelman at northwestern.edu
    > ________________________________________ 
    > 
    > 
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