Monday, January 09, 2006

Bush Still Wants to Torture

So remember that whole torture issue? The administration wanted to continue to be able to torture people and many said this was bad policy. John McCain (R-AZ) felt strongly enough that he added an amendment to a budget bill and the administration threatened to veto it. Cheney fought for months to avoid the amendment but in the end the Senate approved it 90-9. it all seemed settled on Dec 30 when Bush signed H.R. 2863. But hold on for the rest of the story.

Remember how the government supposedly works. Congress makes the laws, the President executes the laws, the Courts interpret the laws. The right has been whining about how the courts have been overstepping their bounds, that justices should merely interpret not make the laws. Well the president also gets to sign the laws but still not write them. He can veto the whole thing or sign it, he (or she) can't change it. Well it seems there's more.

In 1986, then deputy assistant attorney general in the Office of Legal Counsel Samuel Alito (yes that one) laid out a case for having the president routinely issue statements about the meaning of statutes when he signs them into law. This would help courts understand what he thought the bill meant the way the congressional record is used to help understand what congress meant (unless you're Scalia who believes the law is what it says, not what the lawmakers intended to say, really). It seems that presidents since Regan have used these (I'm not sure if before Regan) and the current Bush has done so 108 times. It also seems the courts haven't yet weighed in on the relevance of these signing statements.

It turns out on Dec 30 Bush not only signed the bil but issued a signing statement as well. Congress doesn't offer permanent links to bills. To see the bill (now law) go here and type "H.R. 2863" into the search box, select "Bill Number" and hit search. Choose the last of the results which is the final version. McCain's Amendment is Title X. In Bush's statement the relevant part is the 8th paragraph which starts: "The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks."

I find the statement a bit convoluted but the Boston Globe reported about it and found four people to comment, all seem to agree. No government official would comment on the record but one anonymous"senior administration official, "said the president intended to reserve the right to use harsher methods in special situations involving national security". Ouch.

David Golove, an NYU law professor who specializes in executive power issues, said that the signing statement means that Bush believes he can still authorize harsh interrogation tactics when he sees fit. ''The signing statement is saying 'I will only comply with this law when I want to, and if something arises in the war on terrorism where I think it's important to torture or engage in cruel, inhuman, and degrading conduct, I have the authority to do so and nothing in this law is going to stop me. 'They don't want to come out and say it directly because it doesn't sound very nice, but it's unmistakable to anyone who has been following what's going on."

Marty Lederman, a Georgetown University law professor who served in the Justice Department from 1997 to 2002. ''The whole point of the McCain Amendment was to close every loophole. The president has re-opened the loophole by asserting the constitutional authority to act in violation of the statute where it would assist in the war on terrorism."

Elisa Massimino, Washington director for Human Rights Watch, called Bush's signing statement an ''in-your-face affront" to both McCain and to Congress. ''The basic civics lesson that there are three co-equal branches of government that provide checks and balances on each other is being fundamentally rejected by this executive branch. 'Congress is trying to flex its muscle to provide those checks [on detainee abuse], and it's being told through the signing statement that it's impotent. It's quite a radical view."

I imagine McCain is fuming. Paul Rieckhoff is. I'm disgusted.


M said...

While not in favor of torture....I will play the devil's advocate on this.

I am not sure presidential signing statements are illegal or unconstitutional. One could argue that the president has the right to free speech.

Also, making a signing statement doesn't render the Congress impotent. It seems in this case he is saying....yeah...I see the law and agree with it...except on this one point where I will not necessarily comply in all cases. When I don't comply...go ahead and take me to court. Sue me.

Congress can't impose it's total will over the executive branch. The president can literally...break the law...and go to court....for clarification on the law...or to have the law interpreted or further defined.

Viewed this way...isn't the balance of power and dynamic between executive, judicial, and legislative playing out possibly as our forefathers wanted?

Note: this devil's advocate viewpoint is concerning itself with the interaction of the legislative, executive, and judicial branches...and not with the ethics or morality of torture.

Howard said...

Well, one could argue, how can you execute the laws without first interpreting them? It brings up the fallacy in the interpret don't make the laws argument. judgments form precedents and decide what the law is.

Bush's statement is carefully worded to say things like, we take the law to mean this. The problem is, in this case, it really is against what the law is. As one of the articles I pointed to said, this law was about closing all the loopholes. Bush is leaving himself.

There have always been struggles between branches in the balance of power. And yeah the president can break the law and risk the penalty (which isn't a lawsuit but impeachment), though he did take an oath to uphold the law and the constitution.

I understand your argument is avoiding the torture angle, but bringing that back into the fold, this is more disturbing. We did have rules and there were clear, in fact we were the model of the rest of the world. The fact that Bush is pushing executive power boundaries in this area is particularly disturbing. As I pointed out, the debate over McCain's amendment went on for months, and Cheney argued strenuously. Congress was close to unanimous. Bush's statement seems to be, we fought, the people's representatives spoke, we're going to ignore it. Doesn't sound like executing the laws to me, sounds like picking and choosing them. Combine this with the domestic spying stuff which seems to just ignore the FISA laws and you have a pattern. If the argument is "so sue me", I'd be more than happy to start impeachment hearings.