When the president put his signature on a bill that included a prohibition on torture, it seemed like a serious concession by the Bush White House. After all, this was a provision Bush had threatened to veto just a couple of weeks prior. Unfortunately, a “signing statement” suggested that the president left himself some wiggle room and may not feel bound by the legislation’s restrictions.
Yesterday, the administration openly acknowledged that the president intends to follow the law, unless he decides he shouldn’t.
A senior administration official, who spoke to a [Boston] 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’s a diplomatic way of saying that the president never changed his mind about the McCain provision at all. Bush threatened to veto the bill because he said he wanted flexibility about torturing detainees. When lawmakers in both parties rejected the White House arguments, the president said he’d accept the bill without changes. What he didn’t say was that it didn’t matter anyway — he’ll ignore laws if he feels it’s necessary.
David Golove, a New York University law professor who specializes in executive power issues, told the Globe that Bush believes he can torture, regardless of what the law he just signed says.
”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 important 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.” […]
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.”
Just a few weeks ago, Bush praised McCain’s effort and his administration agreed to “make it clear to the world that this government does not torture.” If only he meant it.