Balkinization  

Wednesday, January 04, 2006

Senator McCain Lays Down a Marker

Marty Lederman

As I wrote the other day, although the President has made some public noises about having finally consented to and embraced the newly enacted McCain Amendment -- which imposes overseas the constitutional "shocks the conscience" standard that applies to our detention of prisoners here in the States -- when it came time to sign the bill, the President reserved the right to engage in cruel, inhuman and degrading treatment, even though the whole point of the McCain Amendment was to close such a loophole by categorically barring such treatment by the U.S. everywhere in the world. In other words, the President tried to publicly play McCain for a fool with the Commander-in-Chief version of "I had my fingers crossed."

Today Senator McCain, who is set to ascend to the Chair of the Senate Armed Services Committee in the next few weeks, responded with a polite but unmistakable tossing down of the proverbial gauntlet. In a joint statement with Senator Warner, McCain writes:
We believe the President understands Congress's intent in passing by very large majorities legislation governing the treatment of detainees included in the 2006 Department of Defense Appropriations and Authorization bills. The Congress declined when asked by administration officials to include a presidential waiver of the restrictions included in our legislation. Our Committee intends through strict oversight to monitor the Administration's implementation of the new law.

[UPDATE: Senator Graham tells the Boston Globe that he "would go a little bit further." "I do not believe that any political figure in the country has the ability to set aside any . . . law of armed conflict that we have adopted or treaties that we have ratified," Graham said. "If we go down that road, it will cause great problems for our troops in future conflicts because [nothing] is to prevent other nations' leaders from doing the same."]

Stay tuned.

Comments:

Good for him!
 

Don't you think he looks drunk lately?
 

In construing the Constitution and its Amendments, scholars have looked to "original intent" (i.e., the framers), "original meaning" (i.e., at the time of enactment, including dictionaries) and "original understanding" (i.e., by the framers, ratifiers and/or perhaps "We the People", at the time of enactment). Statutory construction rules may somewhat differ, although some (Scalia) frown upon legislative history. Here we are facing statutory AND constitutional interpretation. Is President Bush's enactment statement part of the legislative history provided by the executive, and thus an oxymoron? Will judical review, if called upon, be decisive? Think Thomas Jefferson and Andrew Jackson. The shame is that George W lacks the depth of either as he shoots from the lip.
 

This sinator voted for a ban on sale of Levitra?
 

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