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WASHINGTON, D.C.--Probably the most notable utterance by Supreme Court nominee Samuel Alito yesterday was his waffling over John McCain's torture amendment recently passed by Congress after a lengthy knock down drag out between the Arizona senator and Vice President Dick Cheney and President George Bush behind the scenes. Cheney especially wants to preserve the right of the CIA to torture when it finds it appropriate.
Under questioning by Senator Ted Kennedy yesterday, Alito vacillated over implementation of the amendment--chiefly over whether Bush has the right to skirt the torture ban, which some have said he does. Alito said:
"I think it is important to draw a distinction between two very different ideas. One is the scope of executive power. Often presidents--or occasionally presidents--have asserted inherent executive powers not set out in the Constitution. We might think of that as, you know, how big is this table, the extent of executive power.
"The second question is: When you have the power that is within the prerogative of the executive, who controls the executive?
"Those are separate questions. The issue of, to my mind, the concept of the unitary executive, does not have to do with the scope of executive power. It has to do with who within the executive branch controls the exercise of executive power. The theory is the Constitution says the executive power is conferred on the president."
Set aside the mind-numbing quality of Alito's answer, and what you have is a major question in U.S. policy. That question could end up before Alito in the Supreme Court; or it could remain a mere litmus test for his concept of presidential powers. The backstory goes like this:
After lengthy negotiations between McCains office and the White House, Bush signed on to the torture legislation, which includes an apparent escape clause for continuance of CIA terror prisons abroad. But instead of just signing the legislation, Bush stuck on what amounts to a unilateral rider saying he would implement the amendment if he believes the conditions require it. That's called a "presidential signing statement." So, the Congress banned torture but Bush said he would torture or not torture depending on whether he believes the conditions warrant it. (For more on this, see this week's Mondo Washington column.)
Alito addressed the issue of presidential signing statements when he worked for the Reagan-era Justice Department, as an underling to Attorney General Ed Meese. Alito had written, "The president's understanding of a bill should be just as important as that of Congress."
In his questioning yesterday, Kennedy said to Alito:
"You've suggested that the court should give a president's signing statement great deference in determining the meaning and the intent of the law and argued, as a matter of your own political and judicial philosophy, for an almost all-powerful presidency."
Kennedy further said to Alito:
"Time and again, even in routine matters involving average Americans, you give enormous, almost total deference to the exercise of governmental power."
To which Alito threw out another of the vagaries that have come to define his performance at these hearings, saying such power exists "to take care that the laws are faithfully executed, not some inherent power, but a power that is explicitly set out in the Constitution."
The Bush White House says it will follow the McCain amendment, and McCain and Virginia Republican Senator John Warner, chair of the Armed Services Committee, have said they think Bush will follow the law. "Our committee intends through strict oversight to monitor the administration's implementation of the new law," they said in a statement.
According to Portland State University Professor Phillip Cooper, the president issued 108 signing statements in his first term, transforming the practice into nothing less than a post-congressional amendment process.
Human rights advocates questioned the legitimacy of the presidents statement. "There have been signing statements that have tried to protect the power of presidents," explained Michael Ratner, president of the Center for Constitutional Rights and an attorney for detainees in Guantanamo Bay. "But this one was particularly outrageous. Asserting the use of torture or cruel, inhumane, or degrading treatment really is unheard of--everyone knows it is a violation of the law. Everyone knows that a president cannot do these things."
Ratner warned that what the president might do with the authority could be frightening. "We've never accepted the ticking time bomb scenario," he explained. "Its a slippery slope, and it hasnt been the case with cruel, inhumane, and degrading treatment, where already hundreds may have been victims."
Avidan Cover, a senior associate in the U.S. Law and Security Program at Human Rights First, agreed that the "ticking bomb" situation may also just be the starting point for the presidents use of aggressive interrogation techniques. "One question is whether or not he will carve out some scenario where every high-value detainee is seen as a slow fuse bomb," he warned. "When you have individuals with insider information, and its always the administration's prerogative, I shudder to think what will be done."