John Whitehead's Commentary

"Treat them with humanity, and let them have no reason to complain of our copying the brutal example of the British army in their treatment of our unfortunate brethren."--General George Washington, speaking to the officer in charge of prisoners during the Revolutionary War.

Shortly after signing into law this year's Defense Appropriations Bill, which included the McCain Amendment forbidding the torture of detainees by all U.S. personnel regardless of the physical location of the detainee, President Bush issued a "signing statement"--which is an official position by the President that pronounces his interpretation of a new law. In this instance, Bush's signing statement declared that he views the new torture law to be limited by his "inherent authority" as commander-in-chief to protect the national security of America.

The essence of Bush's assertion is that he can unilaterally ignore a congressional law and continue the torture when he sees fit. In fact, New York University law professor David Golove states, "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.'" Notwithstanding certain administration officials' assurances that the President would only bypass the law in an emergency situation such as that of a "ticking time bomb," this signing statement provides the President with essentially the same power that the McCain Amendment sought to prevent.

This is a serious but continuing trend of the Bush Administration to claim that the President has the ultimate power to execute and interpret the law, thus bypassing the other branches of government. Indeed, the Bush Administration has been espousing a view of the separation of powers, specifically presidential wartime powers, that is largely novel and without precedent. In the process, the Bush Administration has been blatantly ignoring and violating federal law. Now, the Administration is "interpreting" the law to support the idea that the "inherent power" of the President includes the ability to ignore a congressional act that was overwhelmingly approved by Congress and signed into law by none other than himself.

Furthermore, despite the Bush Administration's assurances that the President would not utilize this "inherent power" with impunity, why should we believe it? Will we even know if the President exercises this right--with or without impunity? For example, the Bush Administration has been secretly engaging in domestic spying for the last four years and torturing foreign detainees--and seeking congressional approval to torture--while assuring the American people that they do not torture, nor promote torture. The agenda of the Bush Administration is clear--that is, an exponential expansion of the power of the President, in effect creating an imperial presidency.

This is not an idea that originates with President Bush--a man who admits that he is neither a lawyer nor an expert on the Constitution. The notion of unprecedented presidential powers is the brainchild of Bush's advisors. And sadly, he is listening.

For example, in a congressional hearing, U.S. Attorney General Alberto Gonzales suggested that the President could invoke his authority as commander-in-chief to conclude that a law was unconstitutional and refuse to comply with it. However, under the Constitution, the authority to declare laws unconstitutional belongs to the judiciary.

Similarly, a memorandum prepared by influential advisor Deputy Assistant Attorney General John Yoo claims that the President has the inherent authority as commander-in- chief to bypass all laws that conflict with Bush's war on terrorism. Yoo has been reported as saying that Congress has no power to "tie the President's hands in regard to torture as an interrogation technique." And perhaps even more striking is Yoo's definition of torture, which to a large degree has been accepted and endorsed by the Bush Administration. Torture, according to Yoo, requires physical pain that is "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

Key leaders within the Bush Administration have also advocated for dangerously radical notions during the war on terror. Vice President Dick Cheney gained much public attention for his relentless urging that the Central Intelligence Agency be exempt from any type of torture ban.

Although Bush's advisors, along with others, claim that the President can ignore the law, not all those in Washington agree. In fact, on January 4, three key Republican senators condemned Bush's assertion that his powers as commander-in-chief grant him the authority to bypass the new law. In a joint statement, Senators John Warner (R-VA) and John McCain (R-AZ) said, "We believe the president understands Congress's intent in passing, by very large majorities, legislation governing the treatment of detainees." In fact, as the senators pointed out, "The Congress declined when asked by administration officials to include a presidential waiver of the restrictions included in our legislation. Our committee (Senate Armed Services Committee) intends through strict oversight to monitor the administration's implementation of the new law." Senator Lindsey Graham (R-SC) concurred, stating, "I do not believe that any political figure in the country has the ability to set aside any...law of armed conflict that we have adopted or treaties that we have ratified." Graham also acknowledged, "If we go down that road, it will cause great problems for our troops in future conflicts because [nothing] is to prevent other nations' leaders from doing the same."

The fundamental issue is the rule of law. Neither the President, nor Congress, nor the courts are above the law. All public officials are under the law. And for the President, that means he is subject to the document he took an oath to uphold--the Constitution. Otherwise, our governmental scheme is being altered to resemble the regimes that we supposedly oppose.

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.

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