an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
President Tells Congress to Take a Hike on Detention and Interrogation
As I noted earlier this week, Senators Graham, McCain and Warner have indicated that they are prepared to craft legislation dealing with three questions that have been at the heart of debates about detention, interrogation and torture: (i) What is the definition of an "enemy combatant" who may be detained by the military outside the ordinary civil justice system?; (ii) What procedural rules should be employed by military tribunals?; and (iii) Which interrogation techniques should be authorized, and which prohibited?
The White House now is trying to cut these initiatives off at the pass. In a Statement of Administration Policy issued yesterday, the Administration articulated its support for S.1042, the National Defense Authorization Act for Fiscal Year 2006. But the SAP goes on to issue a rare and strongly worded veto threat, as well:
The Administration understands that amendments may be offered to establish a national commission on the detainee operations or to regulate the detention, treatment or trial of terrorists captured in the war on terror. The Administration strongly opposes such amendments, which would interfere with the protection of Americans from terrorism by diverting resources from the war to answer unnecessary or duplicative inquiry or by restricting the President's ability to conduct the war effectively under existing law. The Constitution and the Authorization for Use of Military Force Joint Resolution (Public Law 107-40, September 18, 201) provide the authority the President needs to conduct the war effectively and protect the American people. If legislation is presented that would restrict the President's authority to protect Americans effectively from terrorist attack and bring terrorists to justice, the President's senior advisers would recommend that he veto the bill. (Emphasis in original.)
Fancy that: Even before any amendments are offered—by leading conservative Senators of the President's own party—and therefore before the White House has even seen what the statutory language might be, the President categorically concludes that the legislation necessarily "would interfere with the protection of Americans from terrorism . . . by restricting the President's ability to conduct the war effectively under existing law."
Heaven forbid Congress should have the nerve to actually exercise its authorities under Article I, section 8, clauses 10, 11 and 14 of the Constitution—which empower Congress to define and punish Offences against the Law of Nations, to make Rules concerning Captures on Land and Water, and to make Rules for the Government and Regulation of the land and naval Forces. For to do so will invariably hamper the Executive's abiltity to keep the Nation safe from terror.
Isn't this just a tad too much arrogation of power, even for this President?
The President would actually veto the all-important Defense Authorization bill simply because Congress would forbid him from authorizing "outrages upon personal dignity, in particular humiliating and degrading treatment"?! And he would have the gall to do so on the ground that forbidding such degrading treatment—such as tying a detainee to a leash, leading him around the room and forcing him to perform a series of dog tricks, using female interrogators to sexually humiliate him, and pouring water on his head 17 times during interrogation—would "restrict the President's ability to conduct the war effectively"?
Well, that certainly would be an interesting justification for this President's first veto.
Fortunately, it appears that Senators Graham and McCain are not so easily cowed, despite the apparent pleas of the Vice President himself: "McCain, who endured torture as a prisoner of war in Vietnam, said after meeting at the Capitol with Vice President Dick Cheney that he still intended to offer amendments next week 'on the standard of treatment of prisoners.'"
The Bush administration in recent days has been lobbying to block legislation supported by Republican senators that would bar the U.S. military from engaging in "cruel, inhuman or degrading treatment" of detainees, from hiding prisoners from the Red Cross, and from using interrogation methods not authorized by a new Army field manual. Vice President Cheney met Thursday evening with three senior Republican members of the Senate Armed Services Committee to press the administration's case that legislation on these matters would usurp the president's authority and -- in the words of a White House official -- interfere with his ability "to protect Americans effectively from terrorist attack."
It was the second time that Cheney has met with Senate members to tamp down what the White House views as an incipient Republican rebellion. . . . This week's session was attended by Armed Services Chairman John W. Warner (R-Va.) and committee members John McCain (R-Ariz.) and Lindsey O. Graham (R-S.C.). . . .
No effort has been made by McCain to cultivate Democratic support [for the draft legislation], although his aides predict he could get it easily. . . . A spokeswoman for McCain, Andrea Jones, said yesterday that McCain plans to introduce the legislation next week. McCain, who was a prisoner of war in Vietnam, has criticized the way detainees have been treated by U.S. forces and is said by aides to want to cut off further abuse by requiring that the military adhere to its own interrogation rules in all cases.
One McCain amendment would set uniform standards for interrogating anyone detained by the Defense Department and would limit interrogation techniques to those listed in the Army field manual on interrogation, now being revised. Any changes to procedures would require the defense secretary to appear before Congress.
It would further require that all foreign nationals in the custody or effective control of the U.S. military must be registered with the International Committee of the Red Cross -- a provision specifically meant to block the holding of "ghost detainees" in Iraq, in Afghanistan or elsewhere. The provision would not apply to detainees in CIA custody at nonmilitary facilities. . . .
Another McCain amendment prohibits the "cruel, inhuman or degrading treatment or punishment" of anyone in the custody of the U.S. government. This provision, modeled after wording in the U.N. Convention Against Torture -- which the United States has already ratified -- is meant to overturn an administration position that the convention does not apply to foreigners outside the United States.
Graham, who has been outspoken on the need for Congress to get involved in the issue of detainee treatment, said in an interview that he intends to pursue additional amendments that would define the term "enemy combatant" for purposes of detention and regulate the military trials of detainees held at Guantanamo Bay.
Graham said he believes that his amendment would strengthen the president's ability to pursue the war on terror because it would give congressional support to the process of prosecuting detainees after they are transferred to Cuba, an issue that has been hotly contested in federal courts. "Every administration is reluctant to not have as much authority as possible," Graham said, adding that he has gotten mixed signals from the White House. "But we need congressional buy-in to Guantanamo."
What sitting president has ever supported legislation that would take away from his ability to to direct military response and/or enact measures to provide for national security?
Turning decisions about how to wage war over to the congress has never made any President's "To-Do" list. You apparently find this to be an unreasonable position. Do you think any other President would have responded differently? Do you not see an argument that it is not in the best interests of our country to turn these type of decisions over to the legislative branch? Why to you think the Founders created the Presidency to encompass the role of commander in-chief?
The first comment interestingly ignores the textual restraints that spread the power around.
Such restraints also "provide for national security" which is obviously a vague and debatable term.
And, Congress was able to do so thru the yrs w/o always needing veto proof authority to do so. Surely, yes, Presidents traditionally (though not this strongly in each case) resisted restraints on their power.
But, this is the nature of separation of powers, and when they overstepped their bounds, a firm negative response is totally appropriate.
Another strong and worthwhile post on this important topic. I often post comments critical of the commentary here at Balkinization, and I do not share your generalized antipathy for the Bush Administration, but in the areas of executive authority in wartime and the treatment of detainees in the war on terror we are in agreement.
The lack of enthusiasm for treating human beings decently, for investigating and punishing failures to do so, and for clarifying that we will not resort to degrading others in order to combat terrorists is utterly inconsistent with the idea that terrorists will not change our policies or ideals, and with a broader emphasis on "spreading freedom" and building a "culture of life." The President's conservative allies should be stronger in calling him to consistency on these items that they surely sincerely believe in.
Then again, we all have our blindspots. On the very day that the Washington post ran some "human interest" profiles of the victims of the London bombing, it ran a headline with more high tallies of deadly bombs in Iraq. I don't think we will hear much about those victims' lives and stories. And come to think of it, the Post is not even run by "Bushies."
Thanks for standing up for the dignity of the human person.
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