Tuesday, January 03, 2006

President for torture

Over the last few months, we've seen a battle between the US legislature and the executive over torture. The Senate voted overwhelmingly to attach a rider to a military appropriations bill barring US forces from engaging in cruel or degrading treatment of detainees under their control, and restricting interrogations only to what is contained in the appropriate US Army field manual. On Friday, after backing down from a veto threat, President Bush finally signed the bill into law. However, he wasn't exactly happy with it: in an effort to influence the judicial interpretation of the law should it come before the courts, he attached a "signing statement", stating that

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.

Or, as Balkinization so succintly put it,

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

So not only does the US have a Vice-President for torture; it now explicitly has a President for torture as well. So much for American values.

Secondly, the idea that the President has any "constitutional right" to torture is highly dubious, to say the least (in the past, the Supreme Court has said that the President is not an absolute monarch). The idea that a Presidential signing statement has any weight whatsoever in the judicial interpretation of the law even more so. The seperation of powers is pretty clear: Congress makes the law, and the President executes it. And if the President wants to rewrite that law, they have to go back to Congress - they can't legislate by themselves by fiat.

Unfortunately, "highly dubious" is the Bush Administration's constitutional theories in a nutshell...

(Hat tip: Obsidian Wings)