Waiving the Torture Ban?

Via The Note, I came across a Boston Globe story today by Charlie Savage, which reports that even as President Bush signed the Defense Appropriations bill into law, he "quietly reserved the right to bypass the law under his powers as commander in chief." Issuing a so-called "signing statement," Bush wrote "The executive branch shall construe [the law] in a manner consistent with the constitutional authority of the President ... as Commander in Chief," which "will assist in achieving the shared objective of the Congress and the President ... of protecting the American people from further terrorist attacks."

A "senior administration official" told the Globe that while the administration intends to follow the torture ban ("We consider it a valid statute. We consider ourselves bound by the prohibition on cruel, unusual, and degrading treatment"), he added "Of course the president has the obligation to follow this law, [but] he also has the obligation to defend and protect the country as the commander in chief, and he will have to square those two responsibilities in each case."

Savage's report quotes Georgetown law prof Marty Lederman: "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."

The Globe story says that calls to McCain's office for comment yesterday were not returned.

This is outrageous. If the president believes he can just waive the law whenever he thinks it will be useful in the war against terror to do so, we have a very, very serious problem. This Nixonian formulation ("It's not illegal if the president does it") of the rule of law cannot be the way we proceed, and Bush's evisceration of the McCain language must not be tolerated.