McCain to Bush: ‘Don’t try it, pal’

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SO YOU THOUGHT all good things came from Santa’s workshop at the North Pole? Give the other pole some credit too. This week, a little good news came from Antarctica, where Sen. John McCain is getting an update on climate change from scientists.

No, sorry, the good news has nothing to do with climate change. The ice cap is still melting, or breaking, or sinking, or whatever it is that it’s not supposed to be doing. The good news is that McCain made it clear Wednesday that if President Bush tries to circumvent congressional prohibitions on the inhumane treatment of prisoners, McCain -- one of the few American politicians with a functioning backbone -- doesn’t intend to let him get away with it.

Last year, McCain introduced an amendment to the defense appropriations bill prohibiting U.S. personnel from subjecting prisoners anywhere in the world to cruel, inhumane or degrading treatment, and the Senate approved it, 90 to 9. Bush, who apparently thinks we can’t win the war on terror without becoming as inhumane as our enemies, initially threatened to veto any legislation containing McCain’s language. But the overwhelming support in Congress for the amendment made it effectively veto-proof, and after a protracted standoff, the president finally agreed to sign the bill in late December.


The media announced this as a victory for McCain, his congressional supporters and the large majority of Americans who tell pollsters that torturing terror suspects is not acceptable. But the president still had a bit of mischief up his sleeve. When he signed the legislation, Bush issued a signing statement saying he planned to construe the McCain amendment’s absolute prohibition on cruel, inhumane and degrading treatment “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 protecting the American people from further terrorist attacks.”

This may seem like so much legalistic gobbledygook, but it’s more sinister than that. It refers to the administration’s astonishing claim that whenever the president asserts that he’s acting in the interests of national security, he’s constitutionally permitted to violate any federal laws he finds inconvenient. Translated, Bush’s statement says, “I’ll sign a law prohibiting cruel, inhumane and degrading treatment, but because I’m president, I can ignore it.” As blogger and Georgetown University law professor Marty Lederman notes, Bush’s signing statement was “the commander-in-chief version of ‘I had my fingers crossed.’ ”

The legal effect of such presidential signing statements is controversial, but here, where the whole purpose of the statute is to create a loophole-free ban on a practice that the overwhelming majority in Congress finds abhorrent, it’s hard to see a court siding with the president.

In the short term, though, only Congress can exercise a meaningful check on presidential power run amok. That’s why it was good news when McCain took a break from the glaciers to coordinate with Sen. John Warner on a statement reacting to Bush’s “I had my fingers crossed” maneuver: “We believe the president understands Congress’ intent in passing by very large majorities legislation governing the treatment of detainees.... The Congress declined when asked by administration officials to include a presidential waiver of the restrictions included in our legislation. Our committee intends through strict oversight to monitor the administration’s implementation of the new law.”

It’s not ringing oratory. But if we again translate the dry legalism, it’s a masterpiece of understated menace: “Don’t try it, pal. We’re watching you.”

And McCain and Warner were promptly joined by another key Republican, Lindsey Graham, who added: “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. If we go down that road, it will cause great problems.”


It’s odd how the president, whose popularity remains abysmally low, seems determined to alienate the last remaining moderate Republicans. Spitting in the face of crucial Republican Senate leaders seems weirdly selfdestructive.

After all, Congress may not be able to prevent the president from ignoring the McCain amendment, but using the power of the purse and other tools, it can sure make Bush’s life miserable for the next three years.