"Rule of Law" if done by computer needs contingency algorithms

http://tinyurl.com/q734j9
Interrogations and Presidential Prerogative
The Founders created an executive with substantial discretionary powers.By WALTER BERNS...Judging by what he had to say about "enhanced" interrogations, Sen. Lindsey Graham (R., N.C.) ... believes that we're either a rule-of-law nation or we're not, and no exceptions....His point was that our definitions of torture should not vary with the sort of person being questioned -- terrorists, for example, or merely prisoners of war.****Nevertheless, there remain nuances related to motivation ( e.g. eschewal for confessions, punishment or sadism )and permanence (e.g. a truth serum would hardly be torture, according to most people )and, ultimately, the conscience of the people ( a variable but the ultimate constraint on the guy at the very top of the hierarchy -- the President ). **** Mr. Graham's position is similar to the one taken by Chief Justice Roger Brooke Taney during the Civil War....Abraham Lincoln...ordered the military to suspend the writ of habeas corpus, which led to the arrest and imprisonment of John Merryman,...Taney ruled in Ex Parte Merryman (1861) that only Congress could suspend the writ of habeas corpus and ordered Merryman released. Lincoln disobeyed the order, believing that the executive must sometimes do things it would not do in ordinary times...John Locke, the 17th century Englishman sometimes referred to as "America's philosopher"?...Locke argued in the Second Treatise of Civil Government that the "first and fundamental law is the establishment of the legislative power." ...But Locke admitted that not everything can be done by law...there are many things "which the law can by no means provide for." The law cannot "foresee" events, for example, nor can it act with dispatch or with the appropriate subtlety required when dealing with foreign powers. Nor, as we know very well indeed, can a legislative body preserve secrecy.Such matters, Locke continued...should be left to "the discretion of him who has the executive power." It is in this context that he first spoke of the "prerogative": the "power to act according to discretion, for the public good without the prescription of the law, and sometimes even against it." He concluded by saying "prerogative is nothing but the power of doing public good without a rule" (italics in the original). Did the Framers find a place in our Constitution for this extraordinary power? What, if anything, did they say on the subject or, perhaps more tellingly, what did they not say?
They said nothing about a prerogative or -- apart from the habeas corpus provision -- anything suggesting a need for it. But they provided for an executive significantly different from -- and significantly more powerful than -- the executives provided for in the early state constitutions of the revolutionary era. This new executive is, first of all, a single person, and, as the Constitution has it, "he shall be Commander in Chief of the Army and Navy." This is no mean power; Lincoln used it to imprison insurgents and to free the slaves...According to the "Records of the Federal Convention of 1787," on June 1, a mere two weeks into the life of the convention, James Wilson "moved that the Executive consist in a single person."...Why the silence? Why were they shy? Apparently because the proposal was so radically different from the executives provided(heretofore)...This new, single executive is also required to take an oath to "preserve, protect and defend the Constitution of the United States." This was the provision of his oath President George W. Bush used to capture, hold and interrogate terrorists....questions Locke may have had in mind in his chapter on the prerogative. Who, he then asked, shall be judge whether "this power is made right use of?" Initially, of course, the executive but, ultimately, the people.
****Nixon was not quite right when he said "If the President does it, it IS legal." It might be judged to be illegal AFTER THE FACT through public opinion and/or impeachment.****...forum could be a committee of Congress or a "truth commission" --...a process that, among other things, would require Nancy Pelosi to testify under oath.