Bush could bypass new torture ban

Waiver right is reserved

By Charlie Savage, Globe Staff  |  January 4, 2006

WASHINGTON -- When President Bush last week signed the bill outlawing the torture of detainees, he quietly reserved the right to bypass the law under his powers as commander in chief.

After approving the bill last Friday, Bush issued a ''signing statement -- an official document in which a president lays out his interpretation of a new law -- declaring that he will view the interrogation limits in the context of his broader powers to protect national security. This means Bush believes he can waive the restrictions, the White House and legal specialists said.

''The executive branch shall construe [the law] in a manner consistent with the constitutional authority of the President . . . as Commander in Chief, Bush wrote, adding that this approach ''will assist in achieving the shared objective of the Congress and the President . . . of protecting the American people from further terrorist attacks.

Some legal specialists said yesterday that the president's signing statement, which was posted on the White House website but had gone unnoticed over the New Year's weekend, raises serious questions about whether he intends to follow the law.

A senior administration official, who spoke to a Globe reporter about the statement on condition of anonymity because he is not an official spokesman, said the president intended to reserve the right to use harsher methods in special situations involving national security.

''We are not going to ignore this law, the official said, noting that Bush, when signing laws, routinely issues signing statements saying he will construe them consistent with his own constitutional authority. ''We consider it a valid statute. We consider ourselves bound by the prohibition on cruel, unusual, and degrading treatment.

But, the official said, a situation could arise in which Bush may have to waive the law's restrictions to carry out his responsibilities to protect national security. He cited as an example a ''ticking time bomb scenario, in which a detainee is believed to have information that could prevent a planned terrorist attack.

''Of course the president has the obligation to follow this law, [but] he also has the obligation to defend and protect the country as the commander in chief, and he will have to square those two responsibilities in each case, the official added. ''We are not expecting that those two responsibilities will come into conflict, but it's possible that they will.

David Golove, a New York University law professor who specializes in executive power issues, said that the signing statement means that Bush believes he can still authorize harsh interrogation tactics when he sees fit.

''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,' he said. ''They don't want to come out and say it directly because it doesn't sound very nice, but it's unmistakable to anyone who has been following what's going on.

Golove and other legal specialists compared the signing statement to Bush's decision, revealed last month, to bypass a 1978 law forbidding domestic wiretapping without a warrant. Bush authorized the National Security Agency to eavesdrop on Americans' international phone calls and e-mails without a court order starting after the terrorist attacks of Sept. 11, 2001.

The president and his aides argued that the Constitution gives the commander in chief the authority to bypass the 1978 law when necessary to protect national security. They also argued that Congress implicitly endorsed that power when it authorized the use of force against the perpetrators of the attacks.

Legal academics and human rights organizations said Bush's signing statement and his stance on the wiretapping law are part of a larger agenda that claims exclusive control of war-related matters for the executive branch and holds that any involvement by Congress or the courts should be minimal.

Vice President Dick Cheney recently told reporters, ''I believe in a strong, robust executive authority, and I think that the world we live in demands it. . . . I would argue that the actions that we've taken are totally appropriate and consistent with the constitutional authority of the president.

Since the 2001 attacks, the administration has also asserted the power to bypass domestic and international laws in deciding how to detain prisoners captured in the Afghanistan war. It also has claimed the power to hold any US citizen Bush designates an ''enemy combatant without charges or access to an attorney.

And in 2002, the administration drafted a secret legal memo holding that Bush could authorize interrogators to violate antitorture laws when necessary to protect national security. After the memo was leaked to the press, the administration eliminated the language from a subsequent version, but it never repudiated the idea that Bush could authorize officials to ignore a law.

The issue heated up again in January 2005. Attorney General Alberto Gonzales disclosed during his confirmation hearing that the administration believed that antitorture laws and treaties did not restrict interrogators at overseas prisons because the Constitution does not apply abroad.

In response, Senator John McCain, Republican of Arizona, filed an amendment to a Defense Department bill explicitly saying that that the cruel, inhuman, and degrading treatment of detainees in US custody is illegal regardless of where they are held.

McCain's office did not return calls seeking comment yesterday.

The White House tried hard to kill the McCain amendment. Cheney lobbied Congress to exempt the CIA from any interrogation limits, and Bush threatened to veto the bill, arguing that the executive branch has exclusive authority over war policy.

But after veto-proof majorities in both houses of Congress approved it, Bush called a press conference with McCain, praised the measure, and said he would accept it.

Legal specialists said the president's signing statement called into question his comments at the press conference.

''The whole point of the McCain Amendment was to close every loophole, said Marty Lederman, a Georgetown University law professor who served in the Justice Department from 1997 to 2002. ''The president has re-opened the loophole by asserting the constitutional authority to act in violation of the statute where it would assist in the war on terrorism.

Elisa Massimino, Washington director for Human Rights Watch, called Bush's signing statement an ''in-your-face affront to both McCain and to Congress.

''The basic civics lesson that there are three co-equal branches of government that provide checks and balances on each other is being fundamentally rejected by this executive branch, she said.

''Congress is trying to flex its muscle to provide those checks [on detainee abuse], and it's being told through the signing statement that it's impotent. It's quite a radical view.