Wednesday, January 04, 2006

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.


At 12:51 PM, Blogger Peter Brackney said...

King Bush really does think he is above the law doesn't he?


At 12:56 PM, Blogger Brian said...

Great post.

Sam Alito, should he be confirmed, will be more than happy to vote in favor of expanding Bush's power even further.


At 2:54 PM, Anonymous Anonymous said...

Can someone call McCain and inform him that Bush is essentially saying he doesn't have to abide by his amendment?

At what point is the President accountable for his own arrogant stupidity?

At 3:19 PM, Anonymous Anonymous said...

So, this is how a great democracy dies? We now have a one branch government. A semi-elected king.
Steve Abott

At 4:26 PM, Anonymous Anonymous said...

If our leaders are supposed to be representatives of the people, then as components being represented by Bush, all Americans can also waive the torture ban as they see fit.

At any point a representative politician says he's above a particular law, then I see no reason not to interpret that as a declaration that their constituents are also above the very same law. It's either that, or they admit that they aren't, in fact, representative officials, in which case why are they in office?

At 6:28 PM, Anonymous Anonymous said...

This gives me more concern over the Alito nomination. Alito backed this very manuever when he worked for the Reagan Justice Department.

At 6:51 PM, Blogger Unknown said...

Well, this explains why one week Bush thought the torture ban was a terrible idea, and the next it was great. That's how long it took his lawyers to find a workaround.
I said a couple months ago I thought Bush was far more concerned about nominating justices who would expand his authority than about finding justices who'd make his far-right base happy. The signs of this keep on coming.
Thanks for a great blog, RINO; it's nice to know that there are still other moderates left in the world.

At 1:13 AM, Anonymous Anonymous said...

(Sigh) More shrill argument based totally on principle, with not a hint of reality. "Torture" of some kind - even the mild harassment that captured Islamist fighters claim is Geneva-forbidden - is going to happen under US watch. It doesn't matter what the statute is - under some very narrow circumstances, whoever is in charge will decide there's no other way for the info, and there's no chance the guy is holding out because he's innocent. For all we know it's already saved lives. I won't call you by any partisan slurs - Republicans and Democrats have a wide range of opinions on the torture statute. I will say, however, that you accept a delusion, that people will be punished under this statute in very trying circumstances. Be realistic.


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