Heaven help us (edited)

So, not to put to fine a point on it, the McCain Amendment is as worthless as I said it was.

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. 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. 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.

That's what the president said in his signing statement on the bill.

He reserves the right to make it up as he goes along, and Congress, the Courts, the Constitution, and We; the People, can go piss up a rope.

He, after all, will be doing it for our own good, and that trumps all.

Further, if I am reading the decision referred to correctly, there is, per the Administration no way for anyone to enjoin; nor petition for redress, since the restriction is; as interpreted, placed only so long as the Executive deems it expedient (Alexander v Sandoval is a piece of Scalia's less clear writing, explaining why a petitioner has no right to make the intial case. Hinging on layers of meaning one [who is only as versed in the law as I am, an amateur who reads it for pleasure] might say it is a riddle wrapped in a mystery inside an enigma, but I suspect it's a trifle less opaque, but just a trifle). It will be for the courts to decide whether any appeal of violations of this law are allowed to be heard, but from my reading of that statment the White House position is, "We won't torture anyone unless we have to, at which point it will be legal, because the President says so, and if you have any problem with that, you can pound sand, because we also decided these people aren't entitled to any civil rights (I guess they aren't as inalienable as all that). So it's going to be an uphill battle.

(p.s. Hilzoy has more, at Obsidian Wings Comments there can be interesting, but the signal to noise ratio is often high)

Excuse me?

What would you do if one of your employees told you he was going to ignore, when he felt like, the rules you, as an employer set up?

You'd fire him.

What would you do if he told you he was going to ignore the rules that the managers you hired to oversee his work?

You'd fire him.

Looking with more attention at the President's statement about his signing of the defense authorisation bill, I see that he's doing that. Not just on the Torture Amendment (I confess to being a trifle tunnel visioned on that subject, but to other things.

Sections 8007, 8011, and 8093 of the Act prohibit the use of funds to initiate a special access program, a new overseas installation, or a new start program, unless the congressional defense committees receive advance notice. The Supreme Court of the United States has stated that the President's authority to classify and control access to information bearing on the national security flows from the Constitution and does not depend upon a legislative grant of authority. Although the advance notice contemplated by sections 8007, 8011, and 8093 can be provided in most situations as a matter of comity, situations may arise, especially in wartime, in which the President must act promptly under his constitutional grants of executive power and authority as Commander in Chief of the Armed Forces while protecting certain extraordinarily sensitive national security information. The executive branch shall construe these sections in a manner consistent with the constitutional authority of the President.

Section 8059 of the Act provides that, notwithstanding any other provision of law, no funds available to the Department of Defense for fiscal year 2006 may be used to transfer defense articles or services, other than intelligence services, to another nation or an international organization for international peacekeeping, peace enforcement, or humanitarian assistance operations, until 15 days after the executive branch notifies six committees of the Congress of the planned transfer. To the extent that protection of the U.S. Armed Forces deployed for international peacekeeping, peace enforcement, or humanitarian assistance operations might require action of a kind covered by section 8059 sooner than 15 days after notification, the executive branch shall construe the section in a manner consistent with the President's constitutional authority as Commander in Chief.

A proviso in the Act's appropriation for "Operation and Maintenance, Defense-Wide" purports to prohibit planning for consolidation of certain offices within the Department of Defense. Also, sections 8010(b), 8032, 8037(b), and 8100 purport to specify the content of portions of future budget requests to the Congress. The executive branch shall construe these provisions relating to planning and making of budget recommendations in a manner consistent with the President's constitutional authority to require the opinions of the heads of departments, to supervise the unitary executive branch, and to recommend for congressional consideration such measures as the President shall judge necessary and expedient.

Section 8005 of the Act, relating to requests to congressional committees for reprogramming of funds, shall be construed as calling solely for notification, as any other construction would be inconsistent with the constitutional principles enunciated by the Supreme Court of the United States in INS v. Chadha.

The executive branch shall construe section 8104, relating to integration of foreign intelligence information, in a manner consistent with the President's constitutional authority as Commander in Chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch. Also, the executive branch shall construe sections 8106 and 8119 of the Act, which purport to prohibit the President from altering command and control relationships within the Armed Forces, as advisory, as any other construction would be inconsistent with the constitutional grant to the President of the authority of Commander in Chief.

I suppose the justification for violating the laws is derived from the oath of office, and the idea that such an abrogation of the balance of powers and the system of checks and balances is in needed to, "faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Never mind those pesky provisions in Art. I, Section. 8.

Clause 1: The Congress shall have Power To...

Clause 10: To define and punish ... Offences against the Law of Nations;

Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;

Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Clause 18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

But this White House thinks that the acts which excercise those powers are based on "purported" authorities.

Purported. Not actual, no the powers the Constitution grants the Congress aren't real, but purported.

To read the text of the legal minds of this administration is to see that Congress has no real power. Declare, to them, means to say out loud. Congress doesn't make war, it merely announces. Once the President has decided war is needful, they get to come along for the ride, and (because there's a war on) they lose the power to make laws which affect some "Department[s] or Officer[s] thereof."

That, my friends, seems to be a statement that the President is trying to sieze dictatorial power.

He can do that, but only if we let him.

Hear him! Hear him!

For those of you who like what I have to say, blame, libertango.

His recent post on the test we face; whether we can fight the war we are fighting (against terrorism, or something) and keep the principles we fought a revolution to gain, and a civil war to keep, and redifine.

For those who cannot hear him, go and read him.