I Suppose That Depends On What the Definition of "the Law of the Land" Is

Marty Lederman

The Vice President appeared at the Heritage Foundation yesterday, and shamelessly announced the following, presumably with a straight face:

I work for a President who . . . has made clear from the outset, both publicly and privately, that our duty to uphold the law of the land admits no exceptions in wartime. The President himself put it best: He said, "We are in a fight for our principles, and our first responsibility is to live by them."

"Our duty to uphold the law of the land admits no exceptions in wartime."

A stunning assertion, given the source. Can the Vice President fairly be accused of flat-out dishonesty here?

Perhaps not, once one understands that the "law of the land" that trumps all others for this Administration is the Commander-in-Chief Clause of Article II of the Constitution, before which all mere statutes are but a formal pittance. This is, after all, the Administration that has unapologetically announced that no statute "can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response." "These decisions," say the Bush Administration, "under our Constitution, are for the President alone to make."

As I noted a couple of weeks ago, what this claim means is that numerous statutes -- bills signed by the President (or in one case, enacted by legislative supermajorities over his veto) -- are unconstitutional, and the President may ignore them when in his judgment they impinge on his discretion in determining how best to address the war on terrorism.

So much for the Torture Act, and the Uniform Code of Military Justice, and FISA, and the federal assault statute, and the War Crimes Act, and the 60-day-limit provision of the War Powers Act, and now the McCain Amendment prohibiting cruel, inhuman and degrading treatment of detainees overseas.

And who knows how many other laws . . . ? There's an important recent article written by presidential scholar Phillip J. Cooper of Portland State University. 35 Pres. Studies Q. 515 (2005). (Abstract and order form here.) Cooper explains how the Bush Administration has used signing statements to signal that it is reserving the right to ignore numerous enacted statutes. In Bush's first term alone, he offered 505 constitutional objections to various statutory provisions -- and many of those objections apply to multiple provisions within a particular bill. Moreover, many of the objections are written in such general terms that it is difficult to know just what they mean in terms of how the Administration is implementing the law.

Of course, some of these objections would have been made in any Administration, of either party. (Chadha violations, for example.) Indeed, I drafted my share of signing statements with constitutional objections in the Clinton Administration. I am not arguing that Presidents may not object to legislation, or even that Presidents must always implement statutes -- there are times when nonenforcement of unconstitutional statutes may be appropriate (a broader subject for another time).

But I can assure you, and as Prof. Cooper's study shows, this Administration has gone far, far beyond anything we've previously seen, not only in terms of sheer numbers, but with respect to the breadth and scope of the substance of the Article II objections that it makes to enacted legislation (e.g., unitary executive, Commander-in-Chief, appointments clause (objecting to, e.g., uncontroversial qualifications on appointments), recommendations clause, plenary authority over foreign affairs, right to keep everything secret from Congress, etc.).

I highly commend Cooper's article. I only wish he would have emphasized one thing a bit more (although it's implicit in his article): His data suggest that the Executive is likely refusing to implement hundreds of statutes enacted since 2001 (and many enacted prior to that date, too, suchas FISA and the UCMJ) -- but Congress and the public have little way of knowing which statutes those are, or how they are being executed.

Finally, a few words about the President's statement, prominently quoted by the Vice President, that "our first responsibility is to live by [our principles]":

As it happens, there were some principles to which the United States proudly pledged allegiance in wartime for over 50 years, even when such principles did not (in the view of the Executive branch) constitute a legal obligation: namely, the baseline, minimal "principles" of Common Article 3 of the Geneva Conventions, which provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment."

One of the things President Bush did early in the current war was to ignominiously sweep aside that proud tradition, by announcing to the armed services that such "Geneva principles" are to be applied only "to the extent appropriate and consistent with military necessity," and by further telling the CIA that as far as that agency is concerned, such principles are simply inapposite.

It appeard from some accounts that this has led to the official sanctioning of practices such as hypothermia and waterboarding. And which of our principles, do such practices exemplify -- other than the Cheney principle of the unbounded, imperial Executive, that is?

Now, there are those in the Administration, along with the 9/11 Commission, who are urging that we re-establish adherence to such baseline principles. But the Vice President's own Chief of Staff is leading the charge against that internal corrective movement. Avoidance of humiliating and degrading treatment apparently is not among the "principles" for which he's "fighting."
Posted 11:07 AM by Marty Lederman [link]