Torturing the Constitution

Dhalia Lithwick sums up nicely how Bush's use of "signing statements" on bills sent to him from Congress is so very different from past presidents' use of them, and why they matter so much now.

And if you believe that all this executive self-aggrandizement is meaningless until and unless a court has given it force, you are missing the whole point of a signing statement: These statements are directed at federal agencies and their lawyers. One of their main historical purposes was to afford agencies a glance at how the president wants a statute to be enforced. As Jack Balkin observed almost immediately after the McCain bill, signing statements represent the president's signal to his subordinates about how he plans to enforce a law. And when a president deliberately advises his subordinates that they may someday be asked to join him in breaking a law, he muddies the legal waters, as well as the chain of command.

Such mixed messages about torture allowed young, untrained guards to torture prisoners at Abu Ghraib. Where the rules for treatment of detainees had once been clear, the efforts of Jay Bybee and Alberto Gonzales and others in the White House telegraphed that some agencies could now follow different rules for torture; that not all torture really is torture; that sometimes the president may actually want you to torture; and that all this is largely for you to sort out on the ground. The McCain anti-torture amendment was an effort to create an absolutely clean distinction once more. Bush's signing statement obliterates that distinction and opens the door to yet more ambiguity and abuse.

And the future victims of such Bush-endorsed torture? They won't have a day in court, under President Bush's view of the law. Which means that—like all the mushrooming executive war powers—this ambiguous new torture regime will be secret and may never be tested in a courtroom at all.

Should we dismiss these statements just because President Bush is so brazen in his claims? So willing to take legal positions that are undefended because they're legally indefensible? Will all this just go away someday, when a court dismisses these statements as excessive and unfounded? No. Because President Bush isn't trying to win this war in the courts. Thus far, he has faced each legal setback as though it never happened; or—more often—he's recast it as a victory. He doesn't care what the courts someday make of his signing statements, just as he didn't care what the courts made of his enemy-combatant claims. He views the courts as irrelevant in his pursuit of this war. These signing statements are dangerous because they repeat and normalize—always using seemingly boilerplate language—claims about the boundless powers of a "unitary executive." By questioning the principle of court review in the McCain statement, Bush again erodes the notion of judicial supremacy—an idea we have lived with since Marbury v. Madison. When he asserts that he—and not the courts—is the final arbiter of his constitutional powers, he is calling for a radical shift in the system of checks and balances.

To borrow a few phrases from Professor DeLong, "Impeach George W. Bush. Impeach Richard Cheney. Do it now."