Setting aside the law

Personally, I don't think it's a big deal if Rumsfeld ordered that Mohamed al-Kahtani eat his lasagna cold and have his beard shaved. But clearly the March memo went farther than that; that's why the specific list of "approved techniques" is still secret.

However, the key thing, seems to me, is the parts of the March memo that place the president above and outside the law. While neither the Times nor the Post take much note of that, the Journal's report yesterday did, and that is what is so frightening about the pattern this administration continues to set, whether it is formulating energy policies in secret with industry leaders, or tacitly approving the use of torture in military prisons.

Josh Marshall notes that Thomas Jefferson did recognize that there may arise situations when the president may have the right or even duty to violate the law in cases of emergency or necessity, where cautious debate and inter-branch agreement may be dangerously slow. But Jefferson pondered this in context that the Executive branch would be making a sacrifice -- the president would not take these actions because he is above the law, but rather he is taking these actions despite the penalties he then may be subject to.