Experiencia en Argentina tras la dictación de la Ley N°25.517 y la dictación del

The use of signing statements under the G.W. Bush administration continued unabated, but with little recognition until surprisingly late in the President’s tenure.

Although in academic circles some concerns had been raised, not in the least part because of the efforts to popularize the signing statement by former employees of the White House such as Steven Calabresi and John Yoo; there was limited public recognition that

signing statements existed outside of a simple celebratory address on important pieces of legislation. It would take a particularly aggressive use of the signing statement by the G.W. Bush administration to introduce the signing statement into the public lexicon, and make clear just what the possible uses of the signing statement are.

On December 30, 2005, the United States Congress passed the “Detainee Treatment Act of 2005” as a provision in the “Statement on Signing the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006.” The bill itself was controversial because it seemed to constrain and eliminate some core policies of the G. W. Bush administration in the terror wars. Notable among these policies were indefinite detention of persons

suspected of engaging in or abetting terrorist activity, the use of enhanced interrogation techniques, and the suspension of habeas corpus for those suspected of engaging in terrorism. Much of the work done to advocate on behalf of the Detainee Treatment Act was done by Republican Senator John McCain. As a Navy veteran who had been a prisoner of war during the Vietnam War Senator McCain knew better than most the fundamental ethical problem created by the policies of the G.W. Bush administration.

McCain’s attempt to reform the detention and interrogation program placed him in opposition to most of his fellow conservative politicians who considered the use of indefinite detention and enhanced interrogation necessary to pursue the terror wars.

Fundamentally what was at stake in the passage of this provision was the ability of Congress to constrain the authority of the presidency to make decisions not just about a class of persons, but about the treatment of individual persons without what is afforded

in a court of law. These policies had been a fundamental, if controversial feature of the G.W. Bush administration’s approach to intelligence gathering in the terror wars. At the forefront of the effort to defend these practices was the so called “Torture Memo”

primarily drafted by Deputy Assistant Attorney General John C. Yoo and signed by Assistant Attorney General Jay S. Bybee. Bybee, of course, was one of the original members of the LSWG, and the author Yoo has become synonymous not only with the use of enhanced interrogation but also with the use of signing statements. In this context, the power held by the DOJ to influence foreign policy in the terror wars is both clear and disturbing. It also demonstrates the conditions that created the need for legislative action to modify the policies used by the G.W. Bush administration to pursue the terror wars.

The memos themselves assert a legal defense of the use of torture, not under United States law, but under international law. The core of the argument asserted in these memos is that although the United States originally signed the Rome Statute that created the court, it has not ratified the treaty that includes the Rome Statute, which excludes the United States from the jurisdiction of the court. Moreover, when the United States signed the Rome Statute, it did so with reservations that carve out a legal space permitting the use of enhanced interrogation techniques by the United States. A separate issue raised in the memo is the question of whether or not the use of enhanced

interrogation violates the laws of the United States. The conclusion is that current

circumstances should be understood as a state of war, and the United States does not face a constitutional or legal problem in the use of extraordinary techniques to resolve the

conflict. At the very least, prosecution for any conceivable crime resulting from the use of enhanced interrogation would be impossible.

A close reading of these memos is a worthy endeavor, but one that falls outside of the scope of this project. For my purposes, what should be noted is the theme that cuts across the distinct claims, the notion that the U.S. government exists outside of an existing order either because it is entirely independent and sovereign, or because

circumstances permit the government to suspend the function of its own laws in defense of the sovereign. That the DOJ would express such an opinion is surprising in that it fundamentally denies the ability of that office to act on what ostensibly would be one of its core responsibilities, prosecuting persons engaged in unlawful actions. Such a response only makes sense when it is acknowledged that in this case, the authors of the memo both had privileged relationships to the office of the President. In the case of John Yoo, this would culminate in a failed bid to take over the job of director of the Office of Legal Counsel in the DOJ (giving him greater access to the President), and in the case of Jay Bybee, an eventual appointment to the 9^th Circuit Court of Appeals. This is not to say that the persons in question benefited from providing obliging council, but instead to say that they clearly had a privileged relationship to the decision makers within the White House.

These memos, initially secret, were leaked to the press in 2004 a few months after the leak of the photos taken at Abu Ghraib. This pair of leaks, combined with a decline in support for the ongoing wars in Iraq and Afghanistan, created significant pressure to interrogate the policies involved in the terror wars. Perhaps the best indication of how

strong the pressure for change was can be found in the vote count, with the Detainee Treatment Act (DTA) passing the Senate by a 90 to 9 margin. Perhaps the best indication of the partisan divide on the issue was that the 9 Senators who voted against the bill were Republicans. The DTA was a major change and in many ways a repudiation of the policies pursued by the G.W. Bush administration during his first term.

The DTA was all the more significant in that it included a negotiation between Congress and the President. Prior to the passage of the bill, Senator McCain met with George W. Bush and received a promise that the legislation would be signed without a signing statement being issued. Of course, despite this promise, the G.W. Bush

administration issued a signing statement by email after passage of the law, prompting a rebuke from Senator McCain, a line of aggressive questioning during Samuel Alito’s ongoing nomination hearings, and one of the first times a signing statement received significant media attention. As this story broke it raised the question of just what a signing statement could be used to accomplish.

The DTA passed as a part of a larger supplemental appropriations bill that was sufficiently important that voting against the bill would have been politically inexpedient in Congress and outrageously unpopular for the President to veto. The signing statement in this case was a means to reject the DTA while accepting provisions funding the

military, hurricane Katrina recovery efforts, and preparation for a potential flu pandemic.

Toward that end, the signing statement amicably began by acknowledging the importance of those provisions. Subsequently the signing statement was less than amicable.

Although the signing statement notably argued against the constraints on spending in the favored provisions, the greater focus was the objection to the Detainee Treatment Act. The statement asserts two distinct justifications for the President to disregard the mandates of the section. The first is the role of the President as supervisor of the unitary executive branch and the second is the role of the President as Commander in Chief of the United States Military. These separate justifications both rely on the already alluded to, if not explicitly described, notion that the executive branch exists as an entirely separate apparatus that operates outside the scope of legislative direction. This is

reinforced in the next sentence when the statement outlines the justifications for ignoring the provisions that would have given persons detained in the War on Terror the ability to seek recourse from the U.S. courts.

The way in which this objection is voiced is demonstrative of the techniques found in the other statements. First, they are intentionally vague. The fundamental argument in this signing statement is based on the same general notions espoused in earlier signing statements that the executive branch possesses certain constitutional powers beyond the ability of Congress to establish binding limitation or oversight. As the statement plainly states:

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 (para. 8).¹¹³

113 Bush, George W., "Statement on Signing the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006",

Such an egregious run-on sentence does not lend itself particularly well to legislative interpretation. Indeed, it is an attempt to assert in a very compact and obscure manner an array of diverse justifications for ignoring the provision. In this instance, the same two justifications found in other signing statements, the power of the President as

Commander in Chief and the obligation to supervise the unitary executive branch, are asserted as reasons for disregarding the provisions in the act as a whole. That no

statement to this point has articulated what constitutes “the unitary executive branch” or what are the powers of the Commander in Chief indicates a very broad interpretation of the phrase “in a manner consistent with.” Read this way, the signing statement is a justification for the President to ignore the provisions of the act altogether, as the

provisions limit the ability of the President to render a decision independent of Congress.

Beyond the broad nature of the claims made, the signing statement relies on a disconcerting legal precedent to invalidate the act. The second sentence of the statement argues, “Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall

construe Title X not to create a private right of action (para. 8).”¹¹⁴ One might reasonably ask, in light of this signing statement, what Alexander v. Sandoval, a case dealing with driver’s license tests, might have to do with the practice of indefinite detention.

December 30, 2005. Online by Gerhard Peters and John T. Woolley, The American Presidency Project.

http://www.presidency.ucsb.edu/ws/?pid=65259.

114 Bush, George W., "Statement on Signing the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006", December 30, 2005. Online by Gerhard Peters and John T. Woolley, The American Presidency Project.

http://www.presidency.ucsb.edu/ws/?pid=65259.

In Alexander v. Sandoval the Supreme Court ruled that Martha Sandoval did not have a private right of action, meaning that she could not pursue a suit against the state of Alabama as an individual on behalf of a broader class of persons. In this case Martha Sandoval sued the Alabama Director of Public Safety, James Alexander, for offering driver’s license tests only in English after Alabama passed a state level constitutional amendment making English the state language. The Supreme Court ruled that Sandoval did not have a private right of action (meaning that she did not have basis for the suit) because the statute (the state constitution) did not engage in intentional discrimination against a protected class of citizens, meaning that there was no private right of action under the Civil Rights Act of 1964 which prohibits discrimination on the basis of race, color, religion, sex, or national origin. The precedent whereby a lack of intentional discrimination against a protected class of citizens limited the ability of the court to render a ruling in the case was applied to the DTA to limit the legal remedy provided to detained persons in the act. This line of argumentation relies on the notion that those who are detained indefinitely do not qualify as a particular class of persons who are subject to discrimination, but rather exist as non-citizens who lack the ability to act based on discrimination against a class of persons. This notion, although perhaps not entirely legally untenable, relies on a series of presumptions that are subject to a wide array of criticisms, which are not anticipated by the legal precedent selected. The tenuous nature of the link between Alexander v. Sandoval and the practice of indefinite detention is demonstrated when the signing statement itself does not articulate the bearing of

Alexander v. Sandoval on the treatment of detainees, but rather presumes that the

assertion of a legal precedent is sufficient to place the claim beyond reproach.

What is problematic about this argument is that the legislation created by Congress was designed to avoid this problem by creating a process whereby those

detained indefinitely would face military tribunals. Instead, the legislation created a right of action for detained persons where the inability on the part of the government to

demonstrate a justification for persons to be detained would create the basis for a suit on the part of those detained to earn their release. So the legislation itself did not rely on the detained persons being granted a right of private action as addressed by Alexander v.

Sandoval, but instead relies on the creation of a disposition on the detained persons by the

government. Nonetheless, this precedent is asserted as a basis for denying the ability of the Supreme Court to review the cases of persons who have been indefinitely detained whereas those tried by a military tribunal would typically place an appeal.

The third sentence of the same paragraph demonstrates that perhaps the President doth protest too much:

Finally, given 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 (para.

8).¹¹⁵

115 Bush, George W., "Statement on Signing the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006",

The obvious critique of this sentence begins with the use of the term “Finally” which seems to indicate either an exhaustion with the line of argumentation or a final objection that surpasses previous scrutiny. In this case the argument is directed toward Congress’

attempt to provide, if not habeas corpus, then at least the right for persons detained

abroad to seek a tribunal where evidence would be presented against them. This sentence eliminates the basis for a private right of action, under habeas corpus, for individuals to argue for their ability to face the evidence presented against them in a court of law.

This makes sense, when understood from the perspective of an administration committed to a policy of indefinite detention. The ability to pursue legal action on the basis that the defendant did nothing wrong, even if it is not literal habeas corpus in the sense that a body is not present, creates a mandate for a trial. By rejecting this provision the Bush administration created the circumstances under which the G.W. Bush

administration could deny any right to a tribunal of any sort. Read in that sense, the G.W. Bush administration was rejecting not only the reformist approach of the Detainee Treatment Act, but the notion that the executive branch ought to be accountable to

Congress, or that the Court had any right to act on a matter that the President reserved for the executive branch.

This brief section from the signing statement was used to roundly dismiss the entirety of the Detainee Treatment Act in practice if not in law. In the United States Code the provisions of the act remained, but the administration ignored them and continued the same practices of indefinite detention and enhanced interrogation. The

December 30, 2005. Online by Gerhard Peters and John T. Woolley, The American Presidency Project.

http://www.presidency.ucsb.edu/ws/?pid=65259.

signing statement here demonstrates the fundamental structure of the relationship

between the signing statement and law; it operates outside of and independent of the law.

Because the signing statement as a genre has its origin in an entirely different mode of communication, the oral tradition rather than the written legal tradition, it is well suited to operating outside the existing legal order. By nature the signing statement bends toward argumentative rather than legislative language; yet by relying on the extant power of the presidency in conjunction with a concerted effort to establish the signing statement as a legitimate means for the President to exercise the power of the office the George W. Bush administration was able to deploy the signing statement as a tool for avoiding the limits imposed by legislative action.

What is telling about this signing statement is just how it intersected with the existing detention program. As Mayer notes, the indefinite detention program was a part of a “New Paradigm” that emphasized the need for a distinct system of addressing detained persons. Of particular import in this system was the creation of an ad hoc system for treating detained persons that operated outside the traditional legal system (51-52).¹¹⁶ What the signing statement afforded was a genre of speech that could keep the detention program outside of the legal system, problematizing efforts to provide oversight from the Courts or Congress.