Comments: Still Torturer-In-Chief

Anne -
I'm no constitutional law expert, but I do carry a copy of the document with me - and I did stay at a Holiday Inn last night.

BTW - Happy, Healthy, and Prosperous New Year to you.

A casual glance through the archives seems to give initial evidence that Presidents do issue statements regarding legislation and treaties. These statements do several things: (1) Put an executive branch spin on the document (what the President thinks the document does or doesn't do); (2) Provide a means to trumpet success if the President approves the content; and, but not exhaustive of all the uses, (3) Allow the President to put a "yes, but" spin if he doesn't like some of the content or wants to appease groups not in favor of the document.

See two examples - Bush 43 on campaign finance reform and Clinton on the DOMA.

Statement by President Bill Clinton

On Friday, September 20, prior to signing the Defense of Marriage Act, President Clinton released the following statement:

Throughout my life I have strenuously opposed discrimination of any kind, including discrimination against gay and lesbian Americans. I am signing into law H.R. 3396, a bill relating to same-gender marriage, but it is important to note what this legislation does and does not do.

I have long opposed governmental recognition of same-gender marriages and this legislation is consistent with that position. The Act confirms the right of each state to determine its own policy with respect to same gender marriage and clarifies for purposes of federal law the operative meaning of the terms "marriage" and "spouse".

This legislation does not reach beyond those two provisions. It has no effect on any current federal, state or local anti-discrimination law and does not constrain the right of Congress or any state or locality to enact anti-discrimination laws.

The link you provide is rather short on providing *full* context (okay, maybe the author was on a word count).

This link provides the full statement:

Notice how the shortened quote in the article leaves out some sections - for example (the law) is not the whole law, just one section.

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.

Nothing in the statement per se says the President intends to allow torture. I'm sure there are people on the left who *want* to interpret the language as such for partisan reasons just as there are people on the right who *want* to interpret the statement as a slap back at Sen McCain and others. Interesting how articles and comments I've read on the release fail to mention the companion statement (here's a section)

"At the same time, the Administration is committed to treating all detainees held by the United States in a manner consistent with our Constitution, laws, and treaty obligations, which reflect the values we hold dear. U.S. law and policy already prohibit torture. Our policy has also been not to use cruel, inhuman or degrading treatment, at home or abroad. This legislation now makes that a matter of statute for practices abroad. It also requires that the Defense Department's treatment of detainees be codified in the U.S. Army Field Manual. "

Perhaps a more neutral interpretation of this section of the statement is the natural tendencies for all Presidents to guard executive power against encroachment.

As Justice Jackson observed in his opinion of Trumanís seizure steel mills during the Korean War (the Supreme Courtís decision in Youngstown Sheet & Tube case), there are three categories of presidential exercise of power:

1. The president acts pursuant to an express or implied authorization of Congress. In this case, his authority is at its maximum.

2. The president acts in absence of either a congressional grant or denial of authority in this case, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.

3. The President takes measures incompatible with the expressed or implied will of Congress. Here, observed Jackson, the president's actions are based only on his inherent constitutional powers minus any constitutional powers of Congress over the matter. Here, says Jackson, the president's power is at its minimum

Bush's critics claim he ignores the Constitution in the war on terrorism. Harvard's Laurence Tribe, certainly no Bush fan, has observed, "civil liberties are not only about protecting us from government. They are also about protecting our lives from terrorism."

A fundamental issue here is the extent a president possesses inherent constitutional powers to preserve and protect the country. The presidency is not, as one commentator suggested, merely "a kind of independent agency under the ultimate control of Congress." As the commander-in-chief, does the President have powers in times of national security crisis that are not derivative of any congressional power?

Certainly, other Presidents have believed they have such powers. John Locke wrote prerogative is "the power [of the executive] to act according to discretion for the public good, without the prescription of the law and sometimes even against it." Since the fundamental law that the executive ultimately must implement is to preserve society, it is "fit that the laws themselves should in some cases give way to the executive power, or rather to this fundamental law of nature and government, viz. that as much as may be, all members of society are to be preserved."

We cannot expect legislation in general to foresee every exigency. How much latitude does this fact give the executive? Of course, prudence dictates that such use of inherent power be exercised rarely, i.e. only during the most dire emergencies. As Lincoln observed,
"what is applicable during time of war is not during a time of peace." In response to criticism of his suspension of the writ of habeas corpus, Lincoln asked, ". . . are all the laws but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?"

So, Congress actually rammed a "don't torture people" law down the Bush Administration's throat, but then the White House dished themselves up a heaping helping of "can if we want to" ten seconds later?.... I was hopping you might have some more thoughtful commentary on the issues than that.

Posted by Col Steve at January 4, 2006 12:35 PM