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Comment by billme | Hacker News Reader

Supreme Court has ruled on the executive branches limited legal authority, even during war time:

https://en.m.wikipedia.org/wiki/Youngstown_Sheet_%26_Tube_Co...

That being, “The President did not have the inherent authority to seize private property in the absence of either specifically enumerated authority under Article Two of the Constitution or statutory authority conferred on him by Congress.”

My rewording, “The President [does] not have the inherent authority to [do anything] in the absence of either specifically enumerated authority under Article Two of the Constitution or statutory authority conferred on [them] by Congress.”

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I don't disagree that legally the authority of the president is limited. But in practice the president can order and see executed the torture of innocent people for years without any possibilty of justice for those victimized. This is because legally the president and anyone acting under his command are immune from prosecution if they acted according to legal guidance from the white house council and the supreme court hasn't specifically ruled that exact behavior illegal.

I guess my question for you if there is a difference between something being legal and something being illegal but those doing it are immune from prosecution.

>> “legally the president and anyone acting under his command are immune from prosecution if they acted according to legal guidance from the white house council“

Source? As far as I am able to tell, this is false; as in it is not that they are immune from prosecution, but that prosecution has never occurred.

Clearly, if war crimes were ever brought, regardless of the laws, commands, etc - it would have not resulted in being immune from prosecution.

> Under recent Supreme Court law, however, we are compelled to conclude that, regardless of the legality of Padilla's detention and the wisdom of Yoo's judgments, at the time he acted the law was not "sufficiently clear that every reasonable official would have understood that what he [wa]s doing violate[d]" the plaintiffs' rights. Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011) (internal quotation marks omitted). We therefore hold that Yoo must be granted qualified immunity, and accordingly reverse the decision of the district court.

https://www.leagle.com/decision/infco20120502152.xml

As it relates to torture, war crimes apply regardless of if a party believed they were acting legally.

As for the case you cited, it was a civil suit, therefore ruling only covers civil law, not criminal. That said, does not protect "the plainly incompetent or those who knowingly violate the law". [1]

All Presidents are fully aware by law their powers are limited, no reasonable official would claim otherwise. No reasonable person or official would claim their actions were legal, hence why they knowingly hid them from FISA & Congress.

[1] Malley v. Briggs, 475 U.S. 335, 341 (1986).

That deals with immunity to civil liability, not immunity to criminal prosecution. There's no necessary relationship between them.

The president has the power to fire any federal prosecutor, there should be no expectation that any action he approves of will ever result in criminal prosecution. Civil liability is the only mechanism for holding those in the executive accountable besides impeachment.

> The president has the power to fire any federal prosecutor, there should be no expectation that any action he approves of will ever result in criminal prosecution.

The President does not have the power to fire federal prosecutors serving in subsequent administrations. It's true that you've provided the explanation for why (even without the DoJ opinion which currently prohibits filing charges against a sitting President) it is dubious that a President could effectively be held criminally accountable while in office.

After he leaves office, his only protection is relying on political concerns, or an anticipatory pardon.

>Clearly, if war crimes were ever brought, regardless of the laws, commands, etc - it would have not resulted in being immune from prosecution

Actually one of the areas they have the most immunity. Bush passed the "American Service-Members' Protection Act," authorizing unlimited use of force/resources to free any US personnel being detained by the ICC.

https://en.wikipedia.org/wiki/American_Service-Members%27_Pr...

All that act does is say the US will not cooperate. My statement still holds true, ICC has not given the any immunity for ignorance of the law for war crimes.

The ICC can't hold a trial in absentia unless the defendant is present or in ICC custody for the beginning of the trial. The ICC is thus unable to prosecute unless given consent by the US.

They don't need immunity from ignorance, they have a blanket immunity.

> legally the president and anyone acting under his command are immune from prosecution if they acted according to legal guidance from the white house council

“Counsel”, and, no, they aren't (there'd be a stronger, but not ironclad because of the reasonableness proviso, case if they were acting under guidance from the Justice Department, and given the Constitutional structure of the government, from the President himself, compared to White House Counsel, due to the general principal that the only case where ignorance of the law is an excuse under criminal law is when the mistake of law results from reasonable reliance on guidance from officials responsible for enforcing the law.)

>> “due to the general principal that the only case where ignorance of the law is an excuse under criminal law is when the mistake of law results from reasonable reliance on guidance from officials responsible for enforcing the law”

Request for relevant citation(s).

The foundational case on the relevant principal (which reversedas a matter of Constitutional law the common-law principal that mistake of law was never a defense) is Raley v. Ohio, 360 U.S. 423 (1959).

Can you explain how someone is to hold the President accountable for an illegal act if it is committed in such a way where no citizen has standing to bring suit?

The way I understand it is that technically the fellow upthread is technically right in the eyes of the law; until a judge rules that something is illegal, it isn't. That's a staple of common law jurisprudence. Judges discover law. It is still possible even after the finding of illegality to continue to perpetuate the activity as well given that the legislature ends up too locked up to successfully convict the President for malfeasance, and there is still no means through which the sitting President's pardon power or executive discretion can be overcome.

And again, the lack of standing issue is also alarming in that... Well, maybe you can see something is clearly wrong, but if the wronged can't file a suit in their own defense, and no one else has standing...

I don't know, I feel like I fell off a wagon after reading that post. There's a vague sense of possible loophole there.

> Can you explain how someone is to hold the President accountable for an illegal act if it is committed in such a way where no citizen has standing to bring suit.

Impeachment. Criminal prosecution by a subsequent administration. Civil prosecution by public authority if the particular illegal act is one for which their is a public cause of action. Failing all that, retaliation by a subsequent, similarly difficult-to-punish President. (The last of which, obviously, is obviously fraught, but it's there...)

Curious as well, dragonwriter clearly has deep understanding of US law.

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