Via Marty Lederman at Balkinization: On Friday, the President signed the law including the McCain and Graham Amendments. However, he did so with several large caveats. I'm going to put most of this post below the fold, since it's long. However, here's Marty Lederman's short version:
"I reserve the constitutional right to waterboard when it will "assist" in protecting the American people from terrorist attacks."
And my even shorter, Cartmanesque version:
"Respect Mah Authoritah!!!!!"
Here, from Bush's statement, is what he said about the McCain and Graham Amendments:
"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."
So there, John McCain! You got an amendment that prohibits torture passed; now I, George W. Bush, will exercise my Constitutional right to sign it into law and then ignore it!
I have no problem with construing any statute in light of the Constitution. I do have a problem with this President construing a statute passed by the Congress in light of his ludicrous view of Article II, which, as I understand it, amounts to his having the right to do whatever he damn well pleases to detainees. (To hear Bush talk, you'd think Congress didn't have any War Powers at all. Certainly nothing like the power "To make Rules for the Government and Regulation of the land and naval Forces", or to "make Rules concerning Captures on Land and Water".) I also have a problem with his signing into law a statute that he takes to be unconstitutional, while signaling in advance his unwillingness to abide by it. Vetoing the bill would be the more honest approach, and would better comport with his Constitutional duty to see that the laws be faithfully executed.
Here's what the President said about the Graham Amendment more particularly:
" Finally, given the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005."
The post by Marty Lederman that I linked to at the beginning of this post has the text of Article X, so you don't have to slog through Thomas to find it. Basically, Article X, sec. 5, subsection h says:
"(h) Effective Date-
(1) IN GENERAL- This section shall take effect on the date of the enactment of this Act.
(2) REVIEW OF COMBATANT STATUS TRIBUNAL AND MILITARY COMMISSION DECISIONS- Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act."
The part that says that "Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act" would seem designed to exclude claims governed by paragraph (1) of subsection (e). And what is paragraph (1)?
"(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or"
That's right: it's habeas petitions. That being the case, I think it's completely disingenuous for the President to refer to:
"the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus",
and to conclude that because Congress has supposedly made this decision,
"the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005."
This is flatly inconsistent with both the text of the amendment and such statements of legislative intent as this:
"The jurisdiction-stripping provision in the Graham amendment initially approved by the Senate over my objections would have applied retroactively to all pending cases in federal court – stripping the courts of jurisdiction to consider pending cases, including the Hamdan case now pending in the Supreme Court. The revised amendment that we were able to work out with Senator Graham – the so-called Graham-Levin-Kyl amendment – does not apply to or alter any habeas case pending in the courts at the time of enactment."
Lyle Denniston at SCOTUSBlog writes:
"The Bush Administration appears to be preparing to try to scuttle the two most significant pending cases on the legal rights of foreign nationals now being held at the terrorism prison at Guantanamo Bay, Cuba. One of those cases has been granted review by the Supreme Court, the other is awaiting a decision in the D.C. Circuit Court. (...)
This challenge will clearly be aimed at Hamdan v. Rumsfeld (05-184), an appeal that the Supreme Court agreed on Nov. 7 to hear and decide in the current Term. That case involves Salim Ahmed Hamdan, a Yemeni national who is facing war crimes charges before a "military commission" at Guantanamo. The case challenges the constitutionality of those special commissions. Hamdan's brief is due in the Court this Friday.
The other cases being targeted are Al Odah, et al., v. U.S., et al., that the D.C. Circuit heard on Sept. 8, and are awaiting a ruling by a three-judge panel. (The lead case is docketed in the Circuit Court as 05-5064). This involves a series of habeas challenges by Guantanamo prisoners to their capture and prolonged detention by the U.S. military.
The Administration also will be seeking to head off any future habeas challenges by any other detainees who are foreign nationals."
I think Denniston is right. And, lest we forget, among those future habeas challenges are any appeals by Abu Bakker Qassim and A'del Abdu al-Hakim, the Uighurs who are challenging their detention on the grounds that they have been cleared by military tribunals.
The President is as good as saying that he won't obey the McCain Amendment, and adopting a reading of the Graham Amendment that's just disingenuous. It's one more piece of evidence that he does not begin to understand what the separation of powers actually involves, or that Congress has the power to write laws and the President does not; nor does he take seriously his Constitutional obligation to "take Care that the Laws be faithfully executed". Understanding and accepting these things is not an optional matter for a President. It's a minimal prerequisite of the job.
While I'm on the subject, I'd also like to recommend this post by Glenn Greenwald, on the oddness of seeing so many self-proclaimed originalists and opponents of a "living Constitution" embrace all sorts of penumbras and emanations when it comes to Article II and George W. Bush's wartime powers.
"Thus, we have one argument being advanced by the DoJ on Bush’s behalf which claims that a statute (AUMF) which never mentions FISA, eavesdropping or surveillance should nonetheless be "construed" to have "impliedly" amended FISA by giving Bush an "exception" to its mandates. And this argument is made even though the Congress which supposedly gave that exemption says that they did no such thing, but to the contrary, expressly refused to give that authority.
And then we have the second Bush-defending argument: a dressed-up Constitutional theory which claims that George Bush has the "inherent" authority under Article II of the Constitution to violate Congressional law and eavesdrop on American citizens with no warrant – even though nothing in Article II mentions or even references the power to eavesdrop, the power to engage in surveillance, or the right to violate Congressional statutes. Indeed, the only express clause in Article II which seems to relate to this controversy is one that would rather strongly undercut the claim that the President has the right to violate Congressional law. That’s the part mandating that the President "shall take Care that the Laws be faithfully executed . . . "
So much for plain language and original intent. Who has time for those fancy constructs when George Bush needs defending? What we have in their place are implied, hidden amendments to laws which are silently buried in other laws which don’t even reference the law which was supposedly amended. And that's backed up by a claim of Executive powers which are lurking quietly somewhere in Article II of the Constitution, maybe hiding behind some penumbras or sprouting from the evolving, breathing document."
I couldn't have said it better myself -- which is, of course, why I excerpted Greenwald instead.
If any of you haven't read this NYR review of John Yoo's book, and of his legal views in general, it's also very, very good, and sets out the basic problem quite clearly:
"The problem for originalists who believe in a strong executive and are cynical about international law is that the framers held precisely the opposite views—they were intensely wary of executive power, and as leaders of a new and vulnerable nation, they were eager to ensure that the mutual obligations they had negotiated with other countries would be honored and enforced. During the last two centuries, of course, executive power has greatly expanded in practice; and the attitude of many US leaders toward international law has grown increasingly disrespectful as the relative strength of the US compared to other nations has increased. But these developments are difficult to square with the doctrine of "original intent," which, at least as expressed by Justice Antonin Scalia and other extreme conservatives, largely disregards the development of the law for the past two centuries. Yoo's task is to reconcile the contemporary uses of American power with his belief in original intent."
I'd imagine that reconciling a belief in original intent with a determination to arrive at a conclusion the framers tried very hard to avoid would be difficult. My personal favorite Yoo moment:
" He argues that the power to "declare War" given to Congress was not meant to include the power to begin or authorize a war, but simply the power to state officially that a war was on — a statement that would be "a courtesy to the enemy" and would authorize the executive to exercise various domestic wartime powers. (...) He quotes dictionaries from the founding period that defined "declare" as "to pronounce" or "to proclaim," not "to commence."
Yup -- according to Yoo, the Congress's power to declare war is simply the power to declare: Lo! There's a war on! The reviewer rather acerbically notes that "Dictionary definitions of "declare" also offer little guidance, since Yoo ignores that there is a world of difference between someone's "declaring" his or her love for wine or Mozart and a sovereign's declaring war."
Originalism in action. Gotta love it.