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

J. Noble jfnbl at
Mon Jan 2 11:14:53 PST 2006

If Pvt. Lynndie England can be court-marshalled for posing for 
pictures with a prisoner on a leash, I'm not sure I understand what 
the McCain Amendment adds in the way of clarification or categorical 
prohibition of cruel, inhuman and degrading treatment except to 
mitigate the anxiety of detainees and undermine the effectiveness of 
psychological coercion based on fear and intimidation, while arming 
them with the threat of false accusations to intimidate their 
interrogators. Along with the Senators lined up to override Bush's 
veto of the McCain Amendment, I find the notion of torture abhorrent, 
but if I could imagine the circumstances that would trump both an 
interrogator's basic human decency and the calculated risk of 
criminal sanctions under existing laws, stepping over the line drawn 
by McCain wouldn't be a problem even if you could say for certain 
where it was drawn.

Whether or not the President is ready and willing to ignore statutory 
mandates, and whether or not Congress is prepared to enforce them 
under threat of impeachment, sending a signal to detainees that he 
believes he has that authority only reduces the likelihood that he 
might need to use it. More importantly, it sends a signal to 
interrogators that there are no circumstances where they might 
justify drawing the line themselves, or acting without his authority 
on the assumption that the decision is not within his authority. The 
President might have sent those signals more plainly if he forced the 
Senate to override his veto, but the express reservation is better 
than sending a signal to detainees that as long as they can hold out 
against hours of interrogation, they don't have to worry about 
anything as horrible as a girl with a leash; or sending a signal to 
interrogation teams that if it's a close call, it's their call, and 
the President would rather not know about it.

John  Noble

At 5:17 PM +0000 1/2/06, marty.lederman at wrote:
>So Much for the President's Assent to the McCain Amendment
>Marty Lederman
>The President signed the Defense Appropriations bill on Friday. In 
>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 
>operatio! ns.
>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 
>You didn't think Cheney and Addington were going to go down quietly, 
>did you? (And this even though they 
>their opponents to the cleaners by negotiating the Graham 
>Amendments, which, by precluding substantial avenues of j! udicial 
>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 -- 
>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 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.
>The language of the ! McCain and Graham Amendments is 
>from the Defense Authorization bill (which the President will sign 
>in the next few days). As far as I can tell, the language is exactly 
>the same in the Appropriations bill that the President signed on 
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