Balkinization  

Monday, January 02, 2006

So Much for the President's Assent to the McCain Amendment

Marty Lederman

The President signed the Defense Appropriations bill on Friday. In his signing statement he did at least two notable things.

First, with respect to several provisions of the bill, the President signaled his intention to reserve his authority, as Commander in Chief, to ignore statutory mandates. These include provisions that require advance notice of congressional committees before the use of funds to initiate a special access program, a new overseas installation, or a new start program; and a "report and wait" provision that requires the President to wait 15 days after notifying six congressional committees before using certain appropriations to transfer defense articles or services to another nation or an international organization for international peacekeeping, peace enforcement, or humanitarian assistance operations.

Most importantly, as to the McCain Amendment, which would categorically prohibit cruel, inhuman and degrading treatment of detainees by all U.S. personnel, anywhere in the world, the President wrote:
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.

Translation: I reserve the constitutional right to waterboard when it will "assist" in protecting the American people from terrorist attacks. [UPDATE: Or, as Matthew Franck eagerly puts it over at the National Review, "the signing statement . . . conveys the good news that the president is not taking the McCain amendment lying down."]

You didn't think Cheney and Addington were going to go down quietly, did you? (And this even though they took their opponents to the cleaners by negotiating the Graham Amendments, which, by precluding substantial avenues of judicial review, are far more beneficial to their detention and interrogation policies than the McCain Amendment is detrimental.)

Questions of the hour: How, if at all, will McCain respond? And will these questions of presidential authority to ignore statutory restrictions on the conduct of war -- implicated as well in the current NSA wiretapping scandal -- be front and center in the upcoming Alito hearings?

Second, the President unsurprisingly signals that the Administration reads the Graham Amendments to cut off currently pending habeas cases, including most importantly the Hamdan case that's now before the Supreme Court and the Al Odah case (Rasul on remand) that the U.S. Court of Appeals for the D.C. Circuit has under review:
[G]iven 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.

What this means is that, as Lyle Denniston explains in greater detail, we're about to see a major battle in the Supreme Court, where the SG argues that the Court must dismiss the Hamdan case and Hamdan's attorneys argue that the Graham amendment should be construed to preserve pending cases.

Here's the complete language of the McCain and Graham Amendments as they appear as Title X of Division A of the Appropriations Act:

TITLE X--MATTERS RELATING TO DETAINEES

SEC. 1001. SHORT TITLE.

This title may be cited as the ``Detainee Treatment Act of 2005''.

SEC. 1002. UNIFORM STANDARDS FOR THE INTERROGATION OF PERSONS UNDER THE DETENTION OF THE DEPARTMENT OF DEFENSE.

(a) In General.--No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.

(b) Applicability.--Subsection (a) shall not apply with respect to any person in the custody or under the effective control of the Department of Defense pursuant to a criminal law or immigration law of the United States.

(c) Construction.--Nothing in this section shall be construed to affect the rights under the United States Constitution of any person in the custody or under the physical jurisdiction of the United States.

SEC. 1003. PROHIBITION ON CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT OF PERSONS UNDER CUSTODY OR CONTROL OF THE UNITED STATES GOVERNMENT.

(a) In General.--No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

(b) Construction.--Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section.

(c) Limitation on Supersedure.--The provisions of this section shall not be superseded, except by a provision of law enacted after the date of the enactment of this Act which specifically repeals, modifies, or supersedes the provisions of this section.

(d) Cruel, Inhuman, or Degrading Treatment or Punishment Defined.--In this section, the term ``cruel, inhuman, or degrading treatment or punishment'' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

SEC. 1004. PROTECTION OF UNITED STATES GOVERNMENT PERSONNEL ENGAGED IN AUTHORIZED INTERROGATIONS.

(a) Protection of United States Government Personnel.--In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities.

(b) Counsel.--The United States Government may provide or employ counsel, and pay counsel fees, court costs, bail, and other expenses incident to the representation of an officer, employee, member of the Armed Forces, or other agent described in subsection (a), with respect to any civil action or criminal prosecution arising

[Page: H12310] GPO's PDFout of practices described in that subsection, under the same conditions, and to the same extent, to which such services and payments are authorized under section 1037 of title 10, United States Code.
SEC. 1005. PROCEDURES FOR STATUS REVIEW OF DETAINEES OUTSIDE THE UNITED STATES.

(a) Submittal of Procedures for Status Review of Detainees at Guantanamo Bay, Cuba, and in Afghanistan and Iraq.--

(1) IN GENERAL.--Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the Committee on Armed Services and the Committee on the Judiciary of the Senate and the Committee on Armed Services and the Committee on the Judiciary of the House of Representatives a report setting forth--

(A) the procedures of the Combatant Status Review Tribunals and the Administrative Review Boards established by direction of the Secretary of Defense that are in operation at Guantanamo Bay, Cuba, for determining the status of the detainees held at Guantanamo Bay or to provide an annual review to determine the need to continue to detain an alien who is a detainee; and

(B) the procedures in operation in Afghanistan and Iraq for a determination of the status of aliens detained in the custody or under the physical control of the Department of Defense in those countries.

(2) DESIGNATED CIVILIAN OFFICIAL.--The procedures submitted to Congress pursuant to paragraph (1)(A) shall ensure that the official of the Department of Defense who is designated by the President or Secretary of Defense to be the final review authority within the Department of Defense with respect to decisions of any such tribunal or board (referred to as the ``Designated Civilian Official'') shall be a civilian officer of the Department of Defense holding an office to which appointments are required by law to be made by the President, by and with the advice and consent of the Senate.

(3) CONSIDERATION OF NEW EVIDENCE.--The procedures submitted under paragraph (1)(A) shall provide for periodic review of any new evidence that may become available relating to the enemy combatant status of a detainee.

(b) Consideration of Statements Derived With Coercion.--

(1) ASSESSMENT.--The procedures submitted to Congress pursuant to subsection (a)(1)(A) shall ensure that a Combatant Status Review Tribunal or Administrative Review Board, or any similar or successor administrative tribunal or board, in making a determination of status or disposition of any detainee under such procedures, shall, to the extent practicable, assess--

(A) whether any statement derived from or relating to such detainee was obtained as a result of coercion; and

(B) the probative value (if any) of any such statement.

(2) APPLICABILITY.--Paragraph (1) applies with respect to any proceeding beginning on or after the date of the enactment of this Act.

(c) Report on Modification of Procedures.--The Secretary of Defense shall submit to the committees specified in subsection (a)(1) a report on any modification of the procedures submitted under subsection (a). Any such report shall be submitted not later than 60 days before the date on which such modification goes into effect.

(d) Annual Report.--

(1) REPORT REQUIRED.--The Secretary of Defense shall submit to Congress an annual report on the annual review process for aliens in the custody of the Department of Defense outside the United States. Each such report shall be submitted in unclassified form, with a classified annex, if necessary. The report shall be submitted not later than December 31 each year.

(2) ELEMENTS OF REPORT.--Each such report shall include the following with respect to the year covered by the report:

(A) The number of detainees whose status was reviewed.

(B) The procedures used at each location.

(e) Judicial Review of Detention of Enemy Combatants.--

(1) IN GENERAL.--Section 2241 of title 28, United States Code, is amended by adding at the end the following:

``(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider--

``(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

``(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who--

``(A) is currently in military custody; or

``(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.''.

(2) REVIEW OF DECISIONS OF COMBATANT STATUS REVIEW TRIBUNALS OF PROPRIETY OF DETENTION.--

(A) IN GENERAL.--Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.

(B) LIMITATION ON CLAIMS.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to claims brought by or on behalf of an alien--

(i) who is, at the time a request for review by such court is filed, detained by the Department of Defense at Guantanamo Bay, Cuba; and

(ii) for whom a Combatant Status Review Tribunal has been conducted, pursuant to applicable procedures specified by the Secretary of Defense.

(C) SCOPE OF REVIEW.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of--

(i) whether the status determination of the Combatant Status Review Tribunal with regard to such alien was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor of the Government's evidence); and

(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.

(D) TERMINATION ON RELEASE FROM CUSTODY.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit with respect to the claims of an alien under this paragraph shall cease upon the release of such alien from the custody of the Department of Defense.

(3) REVIEW OF FINAL DECISIONS OF MILITARY COMMISSIONS.--

(A) IN GENERAL.--Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision rendered pursuant to Military Commission Order No. 1, dated August 31, 2005 (or any successor military order).

(B) GRANT OF REVIEW.--Review under this paragraph--

(i) with respect to a capital case or a case in which the alien was sentenced to a term of imprisonment of 10 years or more, shall be as of right; or

(ii) with respect to any other case, shall be at the discretion of the United States Court of Appeals for the District of Columbia Circuit.

(C) LIMITATION ON APPEALS.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to an appeal brought by or on behalf of an alien--

(i) who was, at the time of the proceedings pursuant to the military order referred to in subparagraph (A), detained by the Department of Defense at Guantanamo Bay, Cuba; and

(ii) for whom a final decision has been rendered pursuant to such military order.

(D) SCOPE OF REVIEW.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on an appeal of a final decision with respect to an alien under this paragraph shall be limited to the consideration of--

(i) whether the final decision was consistent with the standards and procedures specified in the military order referred to in subparagraph (A); and

(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States.

(4) RESPONDENT.--The Secretary of Defense shall be the named respondent in any appeal to the United States Court of Appeals for the District of Columbia Circuit under this subsection.

(f) Construction.--Nothing in this section shall be construed to confer any constitutional right on an alien detained as an enemy combatant outside the United States.

(g) United States Defined.--For purposes of this section, the term ``United States'', when used in a geographic sense, is as defined in section 101(a)(38) of the Immigration and Nationality Act and, in particular, does not include the United States Naval Station, Guantanamo Bay, Cuba.

(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.

SEC. 1006. TRAINING OF IRAQI FORCES REGARDING TREATMENT OF DETAINEES.

(a) Required Policies.--

(1) IN GENERAL.--The Secretary of Defense shall ensure that policies are prescribed regarding procedures for military and civilian personnel of the Department of Defense and contractor personnel of the Department of Defense in Iraq that are intended to ensure that members of the Armed Forces, and all persons acting on behalf of the Armed Forces or within facilities of the Armed Forces, ensure that all personnel of Iraqi military forces who are trained by Department of Defense personnel and contractor personnel of the Department of Defense receive training regarding the international obligations and laws applicable to the humane detention of detainees, including protections afforded under the Geneva Conventions and the Convention Against Torture.

(2) ACKNOWLEDGMENT OF TRAINING.--The Secretary shall ensure that, for all personnel of the Iraqi Security Forces who are provided training referred to in paragraph (1), there is documented acknowledgment of such training having been provided.

(3) DEADLINE FOR POLICIES TO BE PRESCRIBED.--The policies required by paragraph (1) shall be prescribed not later than 180 days after the date of the enactment of this Act.

(b) Army Field Manual.--

(1) TRANSLATION.--The Secretary of Defense shall provide for the United States Army Field Manual on Intelligence Interrogation to be translated into arabic and any other language the Secretary determines appropriate for use by members of the Iraqi military forces.
(2) DISTRIBUTION.--The Secretary of Defense shall provide for such manual, as translated, to be provided to each unit of the Iraqi military forces trained by Department of Defense personnel or contractor personnel of the Department of Defense.

(c) Transmittal of Regulations.--Not less than 30 days after the date on which regulations, policies, and orders are first prescribed under subsection (a), the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives copies of such regulations, policies, or orders, together with a report on steps taken to the date of the report to implement this section.

(d) Annual Report.--Not less than one year after the date of the enactment of this Act, and annually thereafter, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report on the implementation of this section.

Comments:

Marty,
Happy New Year, and thanks again for your infatigable persistence in pursuing these issues!
I have an extremely technical question referring to the court stripping intended by the President and the Graham/Kyl part of the Senate sponsors.
It seems to me that Sec. 1405 (h) (2), which limits the review of Combatant Status Tribunals and Military Commission Decisions, constitutes the best argument against a retroactive application of the exclusion of habeas in Sec. 1405 (e) for other pending claims. If the drafters believed it to be necessary to explicitly provide for the retroactive application for the limitation of review of CSRTs and Military Commissions, and did not include this language into the effective date regarding the rest of the Act, may we conclude that the court-stripping does not apply there? I would argue we must.
Thanks and best wishes,
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Valuable as the detailed analysis is, the important part of what has happened is that the administration will be allowed to say for the cameras that Bush has signed this document, which is all the reporting most of our citizens will get on the matter, "Bush Signs McCain Amendment." This will "prove" that we don't torture, and that all the folks snapping at Bush's heels on that issue are really just dupes of the vast left wing conspiracy. The miniscule percentage of the populace that has the ability to parse the subtleties you offer, even after you have done the hard and valuable work you have done for us with this post, is far too weak, far too small. Which is to say, it's another game, set and match to the GOP.
 

Impeachment hearings cannot start soon enough.
 

with respect to several provisions of the bill, the President signaled his intention to reserve his authority, as Commander in Chief, to ignore statutory mandates.

This sounds like a deepening Constitutional crisis to me.
 

There's no "constitutional crisis" until someone in the MSM says so -- the NYT, WaPo, LAT, Newsweek, Time, USNWR.

Someone. Anyone.

Silence.

Instead, what America gets is "the administration says it's legal, but its opponents question whether it goes to far." Blah, blah, blah.

The last thing America is hearing from the MSM is "constitional crisis."
 

Judicial review is not the equivalent of judicial supremacy. So the Executive can construe the constitutional impact of legislation. So can Congress. So there may be a serious clash if the Court is Supreme in name only? Perhaps Congress should take the gloves off.

By the way, Judge Alito's recommendation of his pre-judiciary days with the Reagan Administration that the President should make a statement when he signs legislation regarding its meaning may have been taken to heart by George W. The door has been opened for Congress via the Judiciary Committee to seriously question Alito on this issue. Query: What if a President vetoes legislation with a statement concerning the constitutionality of the legislation and Congress then overrides the veto to enact it? Should the veto statement have impact on the meaning of the enactment?
 

Scalia famously ignores "legislative intent" outside the four corners of the statute; does anyone know if he's stated a view about "executive intent"?
 

This reminds me of the time Bush signed the McCain-Feingold campaign finance reform bill into law after making it clear that he thought it was unconstitutional. I wonder if his current legal theories would justify defiance of that law as well.
 

Snead, it seems to me that we have a constitutional crisis when the Supreme Court decides we have one. The media is more spectator than player in this one, although the timing of its revelations of executive overreach has been helpful.

In the debate leading up to the final adoption of the Graham-Levin compromise, Graham and Levin gave diametrically opposed descriptions of how the new law would affect pending habeas cases. That the President agrees with Graham is hardly news.

What is more interesting is the utter failure of Sen. Graham to make any attempt at all to show that the requisites for a Suspension existed. One may try to argue that there was an Invasion, but one cannot argue that the Public safety requires that a series of lawsuits pending in the United States District Court for the District of Columbia -- all of which are stayed -- be dismissed with prejudice. There's certainly no Public safety benefit to be had from the dismissal of the Hamdan case -- the dispute is over what rules of procedure must be applied to his trial.

Instead of arguing for the Public safety, Sen. Graham complained about (ridiculed really) some requests for interim relief made on behalf of particular prisoners. This might well have been good politics -- people are apparently disturbed by the district court's order permitting lawyers to show their client a DVD of the lawyer with the family members, to convince the client that the lawyers were not yet another set of government interrogators -- but it's not very good law, especially if you're trying to get one of the very few suspensions of the Great Writ in the history of the country.
 

A number of you are being unfair. The President has the veto power. If he doesn't like legislation, he can veto it. Where enacted legislation is ambiguous, the Executive gets to interpret it (or, execute it).

Given that Congress handed Bush ambiguous language, he can veto it if he doesn't like it (before it is law) or he can interpret it within reason (after it is law).
This signing statement does no more than say, if it meant X, then I wouldn't have signed it and would have vetoed it, in which case it wouldn't be law; I signed it only because I reasonably interpret it to mean Y.

All the executive has to do is point out that the language is ambiguoud and that the President would have vetoed it if it had clearly said X, so holding it to mean X after the fact would be stealing the President's veto from him, which violates the text of the Constitution and INS v. Chadha.
 

Welcome to the Brave Old World.

It's been centuries since anyone in the English-speaking world has seriously tried to peddle quod rex vult, lex fit as good law.

I suppose we should all throw away our Federalist Papers at this point and invest in a good translation of Bossuet.
 

I think the McCain amendment leaves enough holes in it to drive a waterboarding form of interragation right through it with out the president having to "sign a finding". For what Senator McCain may have compromised on, there are certain matters this nation should not compromise on. What we call our collective values of what ever we believe in, must first be about human decency. And that is what the founding fathers also believed in, human decency. That new left National Review is going to have a harder time remaining "credible" with its defense of an "empirial presidency" that had never existed in history. And should not exist today.
 

Maybe I'm confused. Where in the constitution does it specify that the executive can modify or write legislation? The law as written is quite clear and it is my understanding that it is the president's sworn duty to uphold the law (not to choose to interpret it to suit his agenda).
 

I realize that Bush doesn't actually know anything about the law, but any first year law student can tell you that the Judiciary interprets the law based on what the legislature intended. If it is not clear what the law means, the judiciary is required to read the legislature's comments which explain what they were trying to say when they wrote the law. If there is still some question as to the meaning of the law, then the courts will look to what other courts thought it meant. The President has no role in interpreting the law.
 

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did not include this language into the effective date regarding the rest of the Act, may we conclude that the court-stripping does not apply there? I would argue we must.
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There's certainly no Public safety benefit to be had from the dismissal of the Hamdan case -- the dispute is over what rules of procedure must be applied to his trial.
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Scalia famously ignores "legislative intent" outside the four corners of the statute; does anyone know if he's stated a view about "executive intent"?

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