Bush circumvents torture ban; within hours of signing a bill banning torture, President Bush issued a bill-signing statement that, in effect, reserved the right to authorize torture regardless of the ban.

Last December, under considerable pressure from Congress, President Bush signed into law the Defense Department Appropriation Act, even though it included guidelines he had earlier opposed prohibiting the use of torture to extract information from detainees. The newly passed law bans "cruel, inhuman, or degrading treatment" against individuals, regardless of nationality or physical location, held in custody by the U.S. government. It was an action befitting a leader of a civilized nation. But within hours of signing the bill, Mr. Bush issued a bill-signing statement reserving the right to interpret the law according to his increasingly broad definition of presidential power.

Apparently not satisfied by Congress' bipartisan refusal to include a presidential waiver of restrictions to the bill (H.R. 2863), Mr. Bush declared on December 30, 2005 that he would interpret the new measure banning torture "in a manner consistent with the constitutional authority of the President" with an objective of "protecting the American people from further terrorist attacks." In effect, President Bush reserved the right to authorize the use of torture regardless of the law banning such activity. He further made it clear that the newly passed law did not create a private right of action, the right of individuals to bring suit in order to enforce the law, since Congress had not specifically authorized such a right.

This latest assertion of raw presidential power, largely unnoticed by the general public, prompted stern admonitions from three Senate Republicans. Two of them, Senators John McCain (Ariz.) and John Warner, Jr. (Va.), issued a joint press release on January 4, essentially rejecting President Bush's assertion that he can legally waive the restrictions on the use of torture against detainees, stating, "We believe that the president understands Congress's intent in passing, by very large majorities, legislation governing the treatment of detainees." McCain and Warner further indicated that they intend to "monitor the administration's implementation of the law." The third senator, Lindsey Graham of South Carolina, stated the obvious while speaking directly to the issue of Bush's ever-expanding notion of executive power: "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."

Undaunted, administration officials reiterated Mr. Bush's contention that the Constitution grants the commander in chief unlimited power to authorize illegal interrogation techniques to protect national security. How do Bush's legal advisors navigate around the issue of executive power? By completely overlooking the Constitution's checks and balances, while clinging to the clause that states "executive power shall be vested in a president" as their sole source of authority.

In what has become the preferred alternative to the presidential veto, George W. Bush has quietly taken to issuing bill-signing statements that effectively nullify or reject elements of the law based upon his administration's interpretation of executive authority. Mr. Bush's signing statements have appeared in connection with more than 500 legislative provisions. The bill-signing statement has emerged as the favorite tool of an administration that has completely abandoned the veto in favor of executive fiat.

The use of signing statements is a relatively recent political development. Presidents Ford, Carter, Reagan, George H. W. Bush, and Clinton all issued signing statements in their efforts to challenge legislative provisions, but none measured up to George W. Bush's use of the tactic. Mr. Bush has signed more than all of his predecessors combined. Conversely, Mr. Bush has never invoked a presidential veto, and is the only modern-age president to abstain from doing so. One has to look back to James A. Garfield's 1881 assassin-shortened presidential tenure to uncover the last administration that eschewed the veto.

In 2003, frustrated lawmakers, reacting to the president's bill-signing proclivity, passed a bill that required the Justice Department to inform Congress whenever President Bush resolved to ignore a provision based on his constitutional interpretation of executive authority. Amazingly, President Bush signed the bill, but quickly issued a bill-signing statement defending his right to ignore the bill's notification requirement.

President Bush's radical view of executive branch authority appears to be part of a larger agenda to usurp power from the legislative branch of the government and to gain sole control of war-related matters. In his bill-signing statement asserting the right to torture detainees, Mr. Bush claims to be erecting safeguards to protect Americans from possible terrorist attack. One is left wondering, however: who will protect Americans from an unchecked, unconstitutional expansion of executive power?

Michael E. Telzrow is a historian/museum professional living in De Pere, Wisconsin.