Homo Sacer in the U.S.

This article in The New Yorker by Jane Mayer reminded me of Giorgio Agamben's discussion of homo sacer in Roman law. Agamben quotes Pompeius Festus who defines the "sacred man" as follows:

The sacred man is the one whom the people have judged on account of a crime. It is not permitted to sacrifice this man, yet he who kills him will not be condemned for homocide.

In other words, one who has been deemed "bad" or "impure" is no longer protected under Roman law. He has lost his sovereignty.

Mayer's article is about the U.S. government's routine use of torture as an interrogation technique--either directly or through "extraordinary rendition," i.e., "rendering" suspects to other countries where such practices will be employed on behalf of the U.S. At one point in the article, John Yoo is introduced and discussed in relation to his advisory role on U.S. torture policy. He is quoted in the article as saying:

“Why is it so hard for people to understand that there is a category of behavior not covered by the legal system?” he said. “What were pirates? They weren’t fighting on behalf of any nation. What were slave traders? Historically, there were people so bad that they were not given protection of the laws. There were no specific provisions for their trial, or imprisonment. If you were an illegal combatant, you didn’t deserve the protection of the laws of war.”

Here we have homo sacer reappearing in U.S. law. Later on Mayer reports Yoo's view as follows:

Yoo also argued that the Constitution granted the President plenary powers to override the U.N. Convention Against Torture when he is acting in the nation’s defense—a position that has drawn dissent from many scholars. As Yoo saw it, Congress doesn’t have the power to “tie the President’s hands in regard to torture as an interrogation technique.” He continued, “It’s the core of the Commander-in-Chief function. They can’t prevent the President from ordering torture.”

So it is a "core" function of the Commander-in-Chief to abuse his powers. A reminder of the Declaration of Independence is in order.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Such revolutionary action should not be taken lightly, but for citizens whose rights are being denied by an abusive commander-in-chief "it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security." Does this apply to our situation?