Bush admin. bypasses new torture ban

When President Bush signed the bill outlawing the torture of detainees last month, he quietly reserved the right to bypass the law under his powers as commander in chief. After approving the bill on Dec. 30, the Bush administration issued a "signing statement"–an official document in which a president lays out his interpretation of a new law–declaring that the administration will view the interrogation limits in the context of the president's broader powers to protect national security. This means the administration believes that it can waive the restrictions, the White House and legal specialists said. The language in the signing statement marks the latest attempt by the White House to assert that under the US constitution, Congress has no authority to tie the president's hands in the "war on terror." "The executive branch shall construe [the law] in a manner consistent with the constitutional authority of the president… as Commander in Chief," the statement said, 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." A senior administration official said the president intended to reserve the right to use harsher methods in special situations involving national security. "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 said in an interview with the Boston Globe. "We are not expecting that those two responsibilities will come into conflict, but it's possible that they will." The administration move appears to directly contradict the agreement between the White House and Senator John McCain (R-AZ), the sponsor of the anti-torture legislation. In an Oval Office meeting with McCain last month, the president stated that the agreement had achieved "a common objective, and that is to make it clear to the world that this government does not torture." McCain and Senator John Warner (R-VA), chairman of the Senate armed services committee, are challenging the White House interpretation of the law, which has reintroduced the ambiguity on the subject of torture that the legislation sought to end. "We believe the president understands Congress's intent in passing by very large majorities legislation governing the treatment of detainees," they said in a joint statement. "The Congress declined when asked by administration officials to include a presidential waiver of the restrictions included in our legislation." Some legal specialists have said that the president's signing statement raises serious questions about whether the Bush administration has any intention of abiding by the anti-torture legislation. 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 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." "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 reopened the loophole by asserting the constitutional authority to act in violation of the statute where it would assist in the war on terrorism." Tom Malinowski, Washington director for Human Rights Watch, said the White House statement "is an effort to signal to the Central Intelligence Agency that it should still consider itself authorized to engage in cruel, inhumane and degrading treatment in extreme circumstances." The legal implications of such presidential signing statements are unclear. When Congress passes a law, it routinely attaches a statement explaining its interpretation of the law, which is later considered by the courts in determining how to enforce the law. Presidents since Jimmy Carter have taken to issuing similar statements intended to spell out the executive branch's interpretation. The Bush administration, however, has used signing statements to reject, revise or put his spin on more than 500 legislative provisions. Some legal experts say he has been far more aggressive than any previous president in using the statements to claim sweeping executive power–and not just on national security issues. "It's nothing short of breathtaking," said Phillip Cooper, a professor of public administration at Portland State University. "In every case, the White House has interpreted presidential authority as broadly as possible, interpreted legislative authority as narrowly as possible, and pre-empted the judiciary."