Signing Statements: The Torture Example

The latest and most legally and procedurally intricate complaint about President Bush has been regarding his use of signing statements. These historically operate by:
“(1) explaining to the public, and particularly to constituencies interested in the bill, what the President believes to be the likely effects of its adoption,
(2) directing subordinate officers within the Executive Branch how to interpret or administer the enactment, and
(3) informing Congress and the public that the Executive believes that a particular provision would be unconstitutional in certain of its applications, or that it is unconstitutional on its face, and that the provision will not be given effect by the Executive Branch to the extent that such enforcement would create an unconstitutional condition,
according to this memo on the Department of Justice website.

The Torture Example

One example of a signing statement(with a ticking bomb scenario straight out of 24 used as justification by the administration) is this in the latest Defense Bill HR 1815:

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. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action.

Now that refers to Title X, relating to Detainees(Section 1092), which is on the web and searchable here, which basically says they can’t use statements gained through “undue coercion” and clarifies some peculiarities of the Guantanamo Bay situation and deserves a whole nother post. Important things to note are that it specifies one court for all these issues to go to: United States Court of Appeals for the District of Columbia Circuit and that the main question it can address is “whether subjecting an alien enemy combatant to such standards and procedures [as exist at Guantanamo Bay] is consistent with the Constitution and laws of the United States”

Now what does the signing statement mean? From a good article in the Boston Globe: David Golove, a New York University law professor who specializes in executive power issues…”The signing statement is saying ‘I will only comply with this law when I want to, and if something arises in the war on terrorism where I think it’s important to torture or engage in cruel, inhuman, and degrading conduct, I have the authority to do so and nothing in this law is going to stop me,’ “ and why does this mean more than him just saying it? Well because Justice Alito, during his confirmation hearing revealed that the administration felt they were still authorized to commit torture abroad on non-US citizens so as the Boston Globe article said an Amendment was passed by veto-proof majorities “explicitly saying that that the cruel, inhuman, and degrading treatment of detainees in US custody is illegal regardless of where they are held”. Then Pres. Bush had a press conference, praised the measure and signed the bill with this signing statement!

Go here if you are interested in an even longer, (well)written by a professional, interpretation.