President's Assent to the McCain Amendment

Marty Lederman blogged The President signed the Defense Appropriations bill on Friday. In his signing statement he did at least two notable things.

First, with respect to several provisions of the bill, the President signaled his intention to reserve his authority, as Commander in Chief, to ignore statutory mandates.

Fantastic news. The Congress cannot change the constitutional powers of the president just by passing a law. It requires a Constitutional Ammendment passed by two thirds of both houses, and agreed to by three-fourths of the states.

These include provisions that require advance notice of congressional committees before the use of funds to initiate a special access program, a new overseas installation, or a new start program; and a "report and wait" provision that requires the President to wait 15 days after notifying six congressional committees before using certain appropriations to transfer defense articles or services to another nation or an international organization for international peacekeeping, peace enforcement, or humanitarian assistance operations.

Most importantly, as to the McCain Amendment, which would categorically prohibit cruel, inhuman and degrading treatment of detainees by all U.S. personnel, anywhere in the world, the President wrote:

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.

Translation: I reserve the constitutional right to waterboard when it will "assist" in protecting the American people from terrorist attacks.

Good for Bush. I was afraid he had allowed McCain to force him to stop. But now it is obvious he just saw that McCain was not going to be willing to compromise, so he just pretended to go along with it.

You didn't think Cheney and Addington were going to go down quietly, did you? (And this even though they took their opponents to the cleaners by negotiating the Graham Amendments, which, by precluding substantial avenues of judicial review, are far more beneficial to their detention and interrogation policies than the McCain Amendment is detrimental.)

Questions of the hour: How, if at all, will McCain respond?

If he has any sense he will keep his mouth shut. But we all know he does not have any sense., so we will have to wait and see.

And will these questions of presidential authority to ignore statutory restrictions on the conduct of war -- implicated as well in the current NSA wiretapping scandal -- be front and center in the upcoming Alito hearings?