WASHINGTON — It's called "the imperial presidency" - the notion that, acting in what he deems to be the national interest, the president has an inherent right to violate the law, and even the Constitution.
The question of inherent powers outside the law has risen twice recently on issues generated by the war against terrorism. In one, the Supreme Court Monday struck down the administration's contention that Americans or foreigners suspected of being terrorists could be held indefinitely without recourse to the courts.
"A state of war is not a blank check for the president when it comes to the rights of the nation's citizens," wrote Justice Sandra Day O'Connor in the case of Yasser Esam Hamdi, an alleged "enemy combatant" born in Louisiana.
The other issue, abuse of prisoners in a war situation, has been hotly argued in the court of public opinion ever since the disclosure of pictures and videotape of prisoners being mistreated in the Abu Ghraib prison near Baghdad.
Now that several hundred pages of internal administration memos have been released, we learn that in February 2002, President Bush asserted in a memo that he believed he had the authority under the Constitution to deny a prisoner the protection of the Geneva Conventions, but that he would "decline to exercise that authority at this time."
Justice Department official Jay Bybee (since then named to the Federal Appeals Court) carried that a step further with a memo in August 2002, stating that torturing prisoners might be legally defensible in some circumstances. The White House has now repudiated that opinion. And Monday Mr. Bush joined with other NATO leaders in Istanbul, in promising "full respect" for the Geneva Conventions on prisoner treatment.
Question: Where did Bush think he got the authority to ignore domestic law and international treaties that have the force of law? Answer: Where previous presidents thought they got their extralegal powers.
But a president can act illegally only as long as he can get away with it. The Supreme Court told him in no uncertain terms that he could not detain suspects indefinitely without giving them access to the courts. And he learned from the court of public opinion that he could not abuse prisoners to obtain information without having to answer, at some point, to the public.
• Daniel Schorr is the senior news analyst for National Public Radio.