05 January 2006


Well, it's finally happened. El Presidente has declared himself not only above the law, but to be the law.

When it came to signing the McCain amendment regulating prisoner treatment (slipped in right before the weekend, of course), Bush did so with a so-called "signing statement" wherein he states how he will arbitrarily choose to interpret the law. The relevant portion of McCain's bill reads as such:

* (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* (c) LIMITATION OF SUPERSEDER.--The provisions of this section shall not be superseded, except by a provision of law enacted after the date of the enactment of this Act which specifically repeals, modifies, or supersedes the provisions of this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.
Pretty cut and dried, don't you think? That is, it was until El Jefe added this:
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.
Absolutely stunning. "We'll obey the law...except when we won't." The anonymous administration official dispatched to paper over this latest thumb in the eye of democracy actually had the nerve to declare that ''We consider it a valid statute. We consider ourselves bound by the prohibition..."

Nothing could be further from the truth.

Make no mistake, this provides for exactly what the Globe article described: unilateral ability to not only disregard the law, but further, claim that it cannot be enforced, anyway. Whatever your opinion of detainee treatment may be, this goes far beyond a "grey area" debate deciding what possible interpretation of constitutional protections apply to foreign nationals in U.S. custody. This is no hypothetical exercise; an explicit law exists, written by the U.S. legislature, applying to U.S. citizens, and agents of the U.S. government.

Measures such as this "signing statement" render that law-making power of the legislative branch utterly meaningless. If, after the fact, an executive can assert a right to disregard an established law of the land, without review, whenever and however he sees fit, there is no balance in the "balance of powers." There's no reason to even have a Congress if one man is the final arbiter of the meaning of a law, and its application and enforcement determined by presidential fiat.

Over the past five years, many hyperbolic statements have been made about imperialism, a monarchic presidency, and other such things. By and large, they were just that: exaggeration. However, taken alongside the recent brazen admittances of the willful disregard of statutes governing the surveillance of American citizens, this latest affront to the rule of law can be seen as little other than a dictatorial abuse of power.

How long until El Presidente begins appearing in public in full uniform, sporting imaginary combat ribbons?

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