January 03, 2006

The Endangered McCain Amendment

First, some background on presidential signing statements:

President Bush has been especially fond of them, issuing at least 108 in his first term, according to presidential scholar Phillip J. Cooper of Portland State University in Oregon. Many of Bush's statements rejected provisions in bills that the White House regarded as interfering with its powers in national security, intelligence policy and law enforcement, Cooper wrote recently in the academic journal Presidential Studies Quarterly.

The Bush administration "has very effectively expanded the scope and character of the signing statement not only to address specific provisions of legislation that the White House wishes to nullify, but also in an effort to significantly reposition and strengthen the powers of the presidency relative to the Congress," Cooper wrote in the September issue. "This tour d' force has been carried out in such a systematic and careful fashion that few in Congress, the media, or the scholarly community are aware that anything has happened at all."

Bush may be acting without fanfare for a reason. As Alito noted in his memo, the statements "will not be warmly welcomed" on Capitol Hill.

"The novelty of the procedure and the potential increase of presidential power are two factors that may account for this anticipated reaction," he wrote. "In addition, and perhaps most important, Congress is likely to resent the fact that the president will get in the last word on questions of interpretation.

Next, Bush's signing statement re: McCain Amendment:

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.

Marty Lederman has much more, as he has so often on this story. Marty identifies the Big Question at this hour. What will McCain and his staff now do? What will they think of the signing statement's impact on the integrity of the McCain Amendment? Will they fear it will eviscerate it, or do they feel more sanguine than commentators like Lederman? Me? I sincerely regret having to say this, but I must agree with Sully when he writes today, about Bush: "I certainly don't trust him not to authorize torture again in the future." Bush sold many, in the main, on his straight-shooting conviction, but he now appears to be playing games more and more often. When the stakes are this high and critical, playing it fast and loose like this starts forcing people into opposition. Why? Because you lose trust, and there is no more sacred bond than that.

Posted by Gregory at January 3, 2006 06:29 AM | TrackBack (1)

Real question: was this signing statement mentioned in the negotiations McCain and the Bushies held? Did McCain share the information with other folks associated with his amendment? If this was part of the negotiations, doesn't the blame fall on McCain, not Bush?

Posted by: Appalled Moderate at January 3, 2006 02:06 PM | Permalink to this comment Permalink

Bush sold many, in the main, on his straight-shooting conviction, but he now appears to be playing games more and more often.

I think you miss the point. Bush is a "straight shooter" -- he thinks he's above the law, and he tells people that pretty much directly.

Actually "above the law" is inaccurate -- Bush thinks he transcends the law; its not a question of being "superior" to the law as much as it is one of the law being irrelevant.

And it has always been so --- it is the story of Bush's life -- the story of someone who "fails upward"; of someone who was "born on third base and thinks he hit a triple".

Bush will likely go down as the 21st Century Falstaff -- a malevolent force that is simultaneously the source of great tragedy and great comedy.

Posted by: lukasiak at January 3, 2006 02:46 PM | Permalink to this comment Permalink

And all this time I thought Luka liked George Bush - despite what many have posted about his being a publically identified and paid staffer on the Gore 2000 campaign

As for "trust lost" - try to convince anyone that Bush has lost the trust of anyone who wasn't carping against him constantly ( like Andrew "I used to think the GWOT was a vital issue until Bush failed to support legal sodomy - and now I can't think about anything else" Sullivan ) is absurd

Posted by: pogue mahone at January 3, 2006 02:51 PM | Permalink to this comment Permalink

"That none of us is above the law is a bedrock principle of democracy. To erode that bedrock is to risk even further injustice. To erode that bedrock is to subscribe, to a "divine right of kings" theory of governance, in which those who govern are absolved from adhering to the basic moral standards to which the governed are accountable."

"We must never tolerate one law for the Ruler, and another for the Ruled. If we do, we break faith with our ancestors from Bunker Hill, Lexington and Concord to Flanders Field, Normandy, Iwo Jima, Panmunjon, Saigon and Desert Storm."

"Let us be clear: The vote that you are asked to cast is, in the final analysis, a vote about the rule of law."

"The rule of law is one of the great achievements of our civilization. For the alternative to the rule of law is the rule of raw power. We here today are the heirs of three thousand years of history in which humanity slowly, painfully and at great cost, evolved a form of politics in which law, not brute force, is the arbiter of our public destinies."

"We are the heirs of the Ten Commandments and the Mosaic law: a moral code for a free people who, having been liberated from bondage, saw in law a means to avoid falling back into the habit of slaves."

"We are the heirs of Roman law: the first legal system by which peoples of different cultures, languages, races, and religions came to live together in a form of political community."

"We are the heirs of the Magna Carta, by which the freeman of England began to break the arbitrary and unchecked power of royal absolutism."

"We are the heirs of a long tradition of parliamentary development, in which the rule of law gradually came to replace royal prerogative as the means for governing a society of free men and women."

"We are the heirs of 1776, and of an epic moment in human affairs when the Founders of this Republic pledged their lives, fortunes and sacred honor - sacred honor - to the defense of the rule of law."

"We are the heirs of a tragic civil war, which vindicated the rule of law over the appetites of some for owning others."

"We are the heirs of the 20th century's great struggles against totalitarianism, in which the rule of law was defended at immense cost against the worst tyrannies in human history. The "rule of law" is no pious aspiration from a civics textbook. The rule of law is what stands between all of us and the arbitrary exercise of power by the state. The rule of law is the safeguard of our liberties. The rule of law is what allows us to live our freedom in ways that honor the freedom of others while strengthening the common good. The rule of law is like a three legged stool: one leg is an honest Judge, the second leg is an ethical bar and the third is an enforceable oath. All three are indispensable in a truly democratic society."

- Republican Congressman Henry Hyde (via Digby).

Posted by: Mads Kvalsvik at January 3, 2006 04:57 PM | Permalink to this comment Permalink

AM may have hit on the central problem with McCain's amendment, and it may relate to a problem with McCain himself.

John McCain -- I must say to my surprise -- is running for President. He has always maintained that his legislative agenda and public posture are unrelated to any future campaign, and there has been some reason to take him at his word. It pains me to say there is also some reason to doubt him.

The obvious political calculation is that no candidate to whom the Bush White House is hostile has any hope of winning the 2008 Republican Presidential nomination. McCain has on this and other occasions gone out of his way to dispel the enmity generated during the 2000 primaries, supporting Bush on Iraq and extracting concessions from the administration through private negotiations rather than direct confrontation whenever possible. He has certainly gotten some political benefit from this course of action, but has also paid a price on substance. Bush's surrender on campaign finance reform in 2002 was not accompanied by any assurance that the administration would appoint federal election commissioners who would faithfully implement the law enacted by Congress, and the administration has not done this. Here again a legislative victory for McCain may well be undermined by an administration determined not to implement the resulting law unless it has no alternative.

There is another possible explanation for the course McCain has followed. McCain's bark has always been worse than his bite; though he has a reputation for having a temper he does not cherish lasting hatreds or resentments. Moreover he genuinely believes in the administration's mission to democratize Iraq and the Arab world -- something else it pains me to say -- and probably sees the McCain amendment on detainee treatment as a correction of sound policy deficient in this one, admittedly significant, detail. He may also see the matter of his candidacy for the GOP Presidential nomination in 2008 has something that happens if it happens; if it does, that's OK, and if it doesn't McCain will live. Frankly no American political party nominates a man in his 70s for the Presidency if it has an alternative with a realistic chance of winning, and if McCain thought the Republicans had one he would most likely not be considering a run now.

Personally I look at these alternative explanations as different roads to the same destination. The first describes a political calculation I think is bound to be wrong, because neither Bush nor his fervent admirers in the national Republican Party will ever get past McCain's 2000 challenge. He will never have their willing support; he may be able to beat them, but will not co-opt them. The second describes a candidate without the commitment to attaining the Presidency that any winning candidate must have. No one wins the Presidency unless someone else loses, and McCain while surely wanting to win sees nothing valuable in making someone else lose. This was the fatal weakness of his 2000 campaign. I expect that if he does run in 2008 it will be again.

But in the short run, with respect to the McCain amendment on detainee treatment Greg is obviously right. People with President Bush's record, let alone Vice President Cheney's, can not be taken at their word on anything. If every escape route is not cut off in advance they will find ways to avoid doing things they do not want to do. It may be -- it should be -- that the McCain amendment can be faithfully implemented without changing anything vital to our current policy toward terrorism, and the administration's caveats are only being stated publicly to camouflage its surrender on the matter in Congress. But the alternative cannot be ruled out, and no one should assume that enactment of this amendment settles this question.

Posted by: JEB at January 3, 2006 05:33 PM | Permalink to this comment Permalink

"People with President Bush's record, let alone Vice President Cheney's, can not be taken at their word on anything"

Well, Bush and Cheney said Saddam would be desposed and on trial and that the people of Iraq would have a chance at participatory democracy for the first time ever

And THAT sure has happened - despite the furious worldwide opposition to the idea from the start

Seems to me one can indeed take their word on things - and the bigger and more important the more likely they are to be accurate

Posted by: Pogue Mahone at January 3, 2006 06:01 PM | Permalink to this comment Permalink

1. Signing statements are like legislative histories, an attempt at spin in the event of judicial review. To get excited in advance about their significance in the event of a challenge that may never arise is silly and rather Kos-like.

2. It is a good practice for an Administration to state its interpretation, policy, affirmation or disagreement of legislation up front. It lends some clarity to any future debates about enforcement, rulemaking and/or executive action.

3. In part, Bush is correctly pushing back against the post-Watergate, Church Committee, anti-Executive thrust of FISA and other perceived diminishments of executive authority. The statement only makes it clear that the bill does not infringe presidential authority nor does it establish a precedent for any analogous ceding of such authority. It is not a rejection of any specific provision(s).

4. In practice, the captured enemy has to know that access to the system of rights he seeks to destroy comes with a price: complete apostasy, acceptance of the rule of law as we and peoples like us define it, total surrender of all relevant information after which he can have a lawyer and all that goes with it. To remain part of the threat to public safety and the rule of law (a threat that the average arrested domestic perp who robbed a convenience store does not pose) is to remain beyond the reach of procedural justice.

5. This means that while his captors may be under orders not to abuse him, he has no right of redress if they do. I interpret the signing statement as meaning that the no-torture rule will exist under a kind of executive honor system: the terms will be respected but not enforced in any judicial or administrative context unless the president deems that enforcement non-threatening to vital executive purpose. Thus, for example, in the closing episodes of 24 Jack Bauer can kick the crap out of the suspect who knows which elementary school has a bomb in the basement and do so with impunity because finding the bomb is an executive duty that trumps congressional action.

6. McCain and Bush have thus completed a Kabuki dance in which the branches of government have declared their rights and powers, declared a great and noble change while the underlying pragmatic realities are probably pretty much the same.

Posted by: George at January 3, 2006 06:20 PM | Permalink to this comment Permalink

And all this time I thought Luka liked George Bush - despite what many have posted about his being a publically identified and paid staffer on the Gore 2000 campaign

ya gotta love these internets...

I am not, and never have been, a "paid staffer" on any political campaign. I think the closest I've ever been to any campaign for national office was back in 1972, when McGovern was running, and I stuffed some envelopes or something. I don't recall any involvement with the Gore campaign whatsoever, other than voting for him.

nevertheless, according to Pogue, I've been "publically identified [as a] paid staffer on the Gore 2000 campaign."

If you ever wonder why Pogue doesn't seem to have much connection to reality, this may provide some clue --- wherever he's getting his "facts" from is part of some alternate reality that the rest of us have no access to.

Pogue -- seriously, where the hell did you get this? Did you just make it up? I hope not, because I could use a good laugh, and I actually find amusing the amount of crap there is about me that has no connection to reality whatsoever, so I'd love a link to your source.

Posted by: lukasiak at January 3, 2006 07:45 PM | Permalink to this comment Permalink

I was going to post something very similar. Anyone have any ideas on how to get a copy of that Cooper piece?

Posted by: praktike at January 3, 2006 09:11 PM | Permalink to this comment Permalink

On Bush via Sully:

"I certainly don't trust him not to authorize torture again in the future."

I trust him precisely because he will so authorize, when he thinks it necessary, and take responsibility for the decision. Indeed, that is McCain's preferred "wiggle." It was part of the deal. So trust is not at issue on this point.

Posted by: Frank at January 3, 2006 09:56 PM | Permalink to this comment Permalink

The Boston Globe picks up on this story today and it turns out Frank might be right:

A senior administration official, who spoke to a Globe reporter about the statement on condition of anonymity because he is not an official spokesman, said the president intended to reserve the right to use harsher methods in special situations involving national security.

''We are not going to ignore this law," the official said, noting that Bush, when signing laws, routinely issues signing statements saying he will construe them consistent with his own constitutional authority. ''We consider it a valid statute. We consider ourselves bound by the prohibition on cruel, unusual, and degrading treatment."

But, the official said, a situation could arise in which Bush may have to waive the law's restrictions to carry out his responsibilities to protect national security. He cited as an example a ''ticking time bomb" scenario, in which a detainee is believed to have information that could prevent a planned terrorist attack.

''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," the official added. ''We are not expecting that those two responsibilities will come into conflict, but it's possible that they will."

That said, can you really believe W on this kind of stuff? It'd been better if nothing had been said, though I think what the senior official says is the best way to approach this sort of thing. (Though maybe Pogue Mahone will take some comfort from the official language.)

Posted by: Appalled Moderate at January 4, 2006 05:27 PM | Permalink to this comment Permalink

Unless Congress actually checks for continuing torture among detainees, and arranges some punishment for Bush if torture is found to continue, why would it make any difference whatsoever what Congress says?

Unless they find a way to enforce their words, it's all public relations.

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