Tuesday, January 03, 2006

Bush Signs McCain Amendment and Reserves the Right to Ignore It

You didn't actually believe that when Pres. Bush dropped his opposition to the McCain Amendment and agreed to sign it, that meant he intended to abide by it, do you?

Well, count me among those silly, naive souls who actually did believe that. Via Marty Lederman at Balkinization, we find out that what the president actually meant was, "I will obey the law when it suits me to do so, and I will ignore the law when it gets in the way of what I want to do."

The President signed the Defense Appropriations bill on Friday.
...with respect to several provisions of the bill, the President signaled his intention to reserve his authority, as Commander in Chief, to ignore statutory mandates. These include provisions that require advance notice of congressional committees before the use of funds to initiate a special access program, a new overseas installation, or a new start program; and a "report and wait" provision that requires the President to wait 15 days after notifying six congressional committees before using certain appropriations to transfer defense articles or services to another nation or an international organization for international peacekeeping, peace enforcement, or humanitarian assistance operations.

Most importantly, as to the McCain Amendment, which would categorically prohibit cruel, inhuman and degrading treatment of detainees by all U.S. personnel, anywhere in the world, the President wrote:

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.

Translation: I reserve the constitutional right to waterboard when it will "assist" in protecting the American people from terrorist attacks.

Who would have guessed, prior to this administration, that Republicans would become the soft-on-crime party; or that self-defined conservatives would be cheering a "conservative" president for announcing that he intended to violate a law even as he signed it into law?

We can be grateful that there are still some bona fide conservatives who do not agree that any president has the right to put himself above the law -- even if he is a Republican:

In my view, this could turn out to be the big question of the new year: Do we have a president who refuses, in any matter tangentially related to the war on terror, to obey the law? We know he broke the FISA law and lied about it. We know he broke U.S. law against torturing detainees, and lied about it. Now we find that he is declaring himself unbound by the McCain Amendment. ...

Hilzoy at Obsidian Wings writes:

I have no problem with construing any statute in light of the Constitution. I do have a problem with this President construing a statute passed by the Congress in light of his ludicrous view of Article II, which, as I understand it, amounts to his having the right to do whatever he damn well pleases to detainees. (To hear Bush talk, you'd think Congress didn't have any War Powers at all. Certainly nothing like the power "To make Rules for the Government and Regulation of the land and naval Forces", or to "make Rules concerning Captures on Land and Water".) I also have a problem with his signing into law a statute that he takes to be unconstitutional, while signaling in advance his unwillingness to abide by it. Vetoing the bill would be the more honest approach, and would better comport with his Constitutional duty to see that the laws be faithfully executed.

Exactly. Not only has this president violated the law and declared that the law is not the law when the president says it's not, but he has wrapped his lawbreaking in an extra layer of dishonesty. He says publicly that, yes, he will sign a piece of legislation he had previously opposed -- thus clearly indicating his intent to support and follow the law. Then, after he signs the legislation, he announces that he does not consider himself bound by the law, and will violate it at will.

It's all a far cry from the conservative mantra of "strict constructionism" and adhering to the "original intent" of the framers of the Constitution, as Glenn Greenwald points out:

...the defenses being dredged up to justify Bush's law-breaking certainly are notable for the liberties they take with traditional and "conservative" principles of legal argument.

Thus, we have one argument being advanced by the DoJ on Bush's behalf which claims that a statute (AUMF) which never mentions FISA, eavesdropping or surveillance should nonetheless be "construed" to have "impliedly" amended FISA by giving Bush an "exception" to its mandates. And this argument is made even though the Congress which supposedly gave that exemption says that they did no such thing, but to the contrary, expressly refused to give that authority.

And then we have the second Bush-defending argument: a dressed-up Constitutional theory which claims that George Bush has the "inherent" authority under Article II of the Constitution to violate Congressional law and eavesdrop on American citizens with no warrant -- even though nothing in Article II mentions or even references the power to eavesdrop, the power to engage in surveillance, or the right to violate Congressional statutes. Indeed, the only express clause in Article II which seems to relate to this controversy is one that would rather strongly undercut the claim that the President has the right to violate Congressional law. That's the part mandating that the President "shall take Care that the Laws be faithfully executed . . . "

So much for plain language and original intent. Who has time for those fancy constructs when George Bush needs defending? What we have in their place are implied, hidden amendments to laws which are silently buried in other laws which don't even reference the law which was supposedly amended. And that's backed up by a claim of Executive powers which are lurking quietly somewhere in Article II of the Constitution, maybe hiding behind some penumbras or sprouting from the evolving, breathing document.

In other words, when it comes to breaking the law, it's okay if you're a Republican.

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