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 msl46 at law.georgetown.edu
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
"They did a really good job this time" -- No MCA Signing Statement
The President signed the Military Commissions Act into law this morning. But according to Tony Snow (see below), there won't be a written signing statement! Because, you know, unlike all those other bills that have prompted hundreds of objections and "constructions," this one is entirely pellucid and unambiguous, and doesn't raise any constitutional questions.
Here are the President's "remarks" from the signing ceremony. And here is the White House's "Fact Sheet," which simply reiterates the President's statement and does not really provide any "facts." The principal theme of both documents, not surprisingly, is that "[t]his bill will allow the Central Intelligence Agency to continue its program for questioning key terrorist leaders and operatives like Khalid Sheikh Mohammed."
To the extent the President means that the bill will "allow" the CIA to use the sorts of "alternative" interrogation techniques that were used on KSM and others, the President is dead wrong -- and his statements are seriously misleading not only to the public, but to those within the CIA who must decide what they can and cannot legally do during interrogations. (Time permitting, I might have more on this point later in the coming days. For the time being, see this column by Stephen Rickard, which emphasizes that Senators McCain and Warner read the bill very differently than does the President.)
Q I wanted to talk about the bill the President will sign tomorrow.
MR. SNOW: Yes.
Q It makes him a final arbiter on torture.
MR. SNOW: Right.
Q Does he have any guidelines, does he have any advisory group? And how will he know?
MR. SNOW: What I've actually -- Helen, in response to your question, I called White House legal counsel --
Q Can you repeat the question?
MR. SNOW: Yes, how will the President know when it's torture and when it's not, and avoid having torture.
Q And how will he approach these cases?
MR. SNOW: And how will he approach the cases.
The White House Office of Legal Counsel [NOTE: Presumably Snow means DOJ's Office of Legal Counsel] is actually putting together a paper so that -- I knew that this would come up. What they will do is help me describe to you, as accurately as possible. It's a very complex series of issues, but there are definitions that outline what constitutes torture, and I will be happy to share those. And I'll get them for you tomorrow.
Q When are you going to release those?
MR. SNOW: I'm not going to release it. I'll share it with you tomorrow. It's not like a formal release, it's just me trying to do my homework, and I don't have it done yet.
Q Following up on the signing ceremony tomorrow. How quickly is the administration going to move ahead on the military commission, the trying of the high-valued --
MR. SNOW: Well, it still takes time, because once you have the commission process in place, you still have to arrange for representation for all involved, you have the gathering of evidence. Now in terms of getting moving toward that goal, that will start immediately; but in terms of having trials, for good and obvious reasons, you don't do that overnight. You do have to make sure that the defense is going to be able to do its job properly, and the prosecution the same.
The estimates I've heard in the past, and I will double check again before tomorrow, is that it may take a month or two, really, to get these things moving toward a trial phase.
Q One other question about the signing. The CIA interrogation program which the President formerly confirmed in the process of asking for this legislation, at that time he said there were no high-value detainees then in custody. Is that still the case?
MR. SNOW: I do not know. I don't believe there are any others.
Q Can you tell us by tomorrow?
MR. SNOW: Probably not, because, frankly, when there are detainees, it is not the practice to start telling when or where you have high-value detainees.
Q Because, I mean, the President made a point of saying, we need this, we need this right away, it's got to be done before Congress adjourns, and I guess --
MR. SNOW: I understand that --
Q -- it would be nice to know if it were a moot point.
MR. SNOW: It would be nice to know lots of pieces of classified information, but there's a reason they're classified.
Q Tony, just to follow on that -- or is it possible for you to tell us, once this bill is signed, should there be a need to house high-level detainees in this CIA program, will you be able to immediately, upon signing the bill, or are there other steps that have to happen before you can start that program up again?
MR. SNOW: The program has never ceased, it is merely dormant.
Q Well, before it can resume?
MR. SNOW: Well, again, that's a very cagey way of saying, have you got anybody?
Q No, it's a way of saying, do you --
MR. SNOW: Well, if a program is dormant because there are a lack of occupants, and it suddenly ceases to be dormant, then it does tell you whether they're occupants.
Q We can go at it later.
MR. SNOW: Okay. And I mean, Sheryl, if there's a specific legal point I can help with, I'll work it through legal counsel. I don't want to pretend to have the expertise to be able to parse all this stuff.
* * * *
Q Tony, is there going to be a substantial and detailed signing statement with tomorrow's signing?
MR. SNOW: There will be no signing statement.
* * * *
Q Can I follow on Ken's question? Why no signing statement? Is there any kind of change in policy?
MR. SNOW: Because there's no signing statement. You have signing statements sometimes, and sometimes you just sign it. And possibly to frustrate you guys, because everybody has been waiting for one.
Q What about an executive order?
MR. SNOW: An executive order does not need to be coterminous with the signing. I believe there will, at some point, be need for one. And that one, I'll also get the White House Office of Legal Counsel to give me a precise --
Q But there will at some point?
MR. SNOW: I'm not -- let me find out for sure.
Q Tony, was there any agreement with Congress that there would not be a signing statement?
MR. SNOW: No.
Q This just seems like the kind of bill where there are a lot of things to be interpreted and take a look at.
MR. SNOW: They did a really good job this time.
Q Wow. (Laughter.)
* * * *
Q Tony, on signing statements, as you know, the administration has received some criticism for putting out signing statements that include interpretation by the President of sections of the law. So I'm just wondering why, in this instance, you are not putting out a signing statement to explain your interpretation of Article III of the Geneva Convention.
MR. SNOW: Because we believe that the law, in fact, has its own way of addressing that, and we're satisfied with it. As you know, Paula, last week we had a signing statement. Signing statements quite often involve trying to figure -- there are often questions about whether Congress, in putting together provisions of an act, has been fully consistent with the Constitution and whom it charges with executing those laws. And, therefore, we look for ways to maintain fidelity of the Constitution and to the intent of the laws that have been drawn up. We don't think there's such a conflict in this case.
I continue to be confused about what specific interrogation practices are outlawed by the MCS. (I guess I am supposed to be. We all are.)
I abhor the ambiguity that may allow the CIA to construe practices such as induced hypothermia, 40 hours of forced standing or even waterboarding to be outside the sanctions of the War Crimes Act. But I do not discount the on-the-record opinions of the bill's sponsors to the effect that these techniques, at least, are intended to be outlawed.
It may turn out that the law does criminalize these practices, and the White House assertions that "the program" can continue is part political bluster. I don't recall anyone saying that "the program" -- as it previously was applied to the detainees -- can continue completely without modification.
But, I emphasize, I don't really know. And I don't think anyone outside a secret circle within the executive branch knows either.
The point is that it doesn't matter in the real world what the legislation "allows," because the President decides that, and no affected person has access to the courts to challenge his interpretation. The law creates only the illusion of limits on the Presidents power.