Bush could bypass new torture ban
Waiver right is reserved
http://www.boston.com/news/nation/wa****ngton/articles/2006/01/04/bush_could_bypass_new_torture_ban?mode=PF
By Charlie Savage, Globe Staff
January 4, 2006
WA****NGTON -- When President Bush last week signed the bill outlawing
the torture of detainees, he quietly reserved the right to bypass the
law under his powers as commander in chief.
After approving the bill last Friday, Bush issued a ''signing
statement" -- an official do***ent in which a president lays out his
interpretation of a new law -- declaring that he will view the
interrogation limits in the context of his broader powers to protect
national security. This means Bush believes he can waive the
restrictions, the White House and legal specialists said.
''The executive branch shall construe [the law] in a manner consistent
with the constitutional authority of the President . . . as Commander
in Chief," Bush wrote, adding that this approach ''will assist in
achieving the shared objective of the Congress and the President
.. . . of protecting the American people from further terrorist
attacks."
Some legal specialists said yesterday that the president's signing
statement, which was posted on the White House website but had gone
unnoticed over the New Year's weekend, raises serious questions about
whether he intends to follow the law.
A senior administration official, who spoke to a Globe re****ter 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."
David Golove, a New York University law professor who specializes in
executive power issues, said that the signing statement means that
Bush believes he can still authorize harsh interrogation tactics when
he sees fit.
''The signing statement is saying 'I will only comply with this law
when I want to, and if something arises in the war on terrorism where
I think it's im****tant to torture or engage in cruel, inhuman, and
degrading conduct, I have the authority to do so and nothing in this
law is going to stop me,' " he said. ''They don't want to come out and
say it directly because it doesn't sound very nice, but it's
unmistakable to anyone who has been following what's going on."
Golove and other legal specialists compared the signing statement to
Bush's decision, revealed last month, to bypass a 1978 law forbidding
domestic wiretapping without a warrant. Bush authorized the National
Security Agency to eavesdrop on Americans' international phone calls
and e-mails without a court order starting after the terrorist attacks
of Sept. 11, 2001.
The president and his aides argued that the Constitution gives the
commander in chief the authority to bypass the 1978 law when necessary
to protect national security. They also argued that Congress
implicitly endorsed that power when it authorized the use of force
against the perpetrators of the attacks.
Legal academics and human rights organizations said Bush's signing
statement and his stance on the wiretapping law are part of a larger
agenda that claims exclusive control of war-related matters for the
executive branch and holds that any involvement by Congress or the
courts should be minimal.
Vice President Dick Cheney recently told re****ters, ''I believe in a
strong, robust executive authority, and I think that the world we live
in demands it. . . . I would argue that the actions that we've taken
are totally appropriate and consistent with the constitutional
authority of the president."
Since the 2001 attacks, the administration has also asserted the power
to bypass domestic and international laws in deciding how to detain
prisoners captured in the Afghanistan war. It also has claimed the
power to hold any US citizen Bush designates an ''enemy combatant"
without charges or access to an attorney.
And in 2002, the administration drafted a secret legal memo holding
that Bush could authorize interrogators to violate antitorture laws
when necessary to protect national security. After the memo was leaked
to the press, the administration eliminated the language from a
subsequent version, but it never repudiated the idea that Bush could
authorize officials to ignore a law.
The issue heated up again in January 2005. Attorney General Alberto
Gonzales disclosed during his confirmation hearing that the
administration believed that antitorture laws and treaties did not
restrict interrogators at overseas prisons because the Constitution
does not apply abroad.
In response, Senator John McCain, Republican of Arizona, filed an
amendment to a Defense Department bill explicitly saying that that the
cruel, inhuman, and degrading treatment of detainees in US custody is
illegal regardless of where they are held.
McCain's office did not return calls seeking comment yesterday.
The White House tried hard to kill the McCain amendment. Cheney
lobbied Congress to exempt the CIA from any interrogation limits, and
Bush threatened to veto the bill, arguing that the executive branch
has exclusive authority over war policy.
But after veto-proof majorities in both houses of Congress approved
it, Bush called a press conference with McCain, praised the measure,
and said he would accept it.
Legal specialists said the president's signing statement called into
question his comments at the press conference.
''The whole point of the McCain Amendment was to close every
loophole," said Marty Lederman, a Georgetown University law professor
who served in the Justice Department from 1997 to 2002. ''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."
Elisa Massimino, Wa****ngton director for Human Rights Watch, called
Bush's signing statement an ''in-your-face affront" to both McCain and
to Congress.
''The basic civics lesson that there are three co-equal branches of
government that provide checks and balances on each other is being
fundamentally rejected by this executive branch," she said.
''Congress is trying to flex its muscle to provide those checks [on
detainee abuse], and it's being told through the signing statement
that it's impotent. It's quite a radical view."
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