Torture ban loophole.

Byline: The Register-Guard

It's a shame the American people can't afford to give President Bush the benefit of the doubt when he asks them to trust him not to order "cruel, inhuman or degrading" treatment of U.S. prisoners. Unfortunately, Bush's actions speak much louder than his words. Those actions suggest that the president mistakenly believes he is above the law whenever the law prevents him from doing something he decides is necessary for national security.

That's why relief quickly gave way to outrage when Bush attached an enormous loophole to Sen. John McCain's clear and unequivocal ban on abuse of prisoners by U.S. personnel anywhere in the world. In a presidential signing statement appended to the defense bill containing Mc- Cain's amendment, Bush declared that his administration would interpret the new law "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."

Embodied within that language are the powers Bush has claimed he has in wartime to ignore laws passed by Congress. He has used his expansive interpretation of executive power to authorize surveillance of countless Americans without court approval, to justify ignoring the Geneva Conventions and other international treaties banning torture, and to indefinitely detain without due process any person, even an American citizen, who is classified as an enemy combatant.

McCain, who at one time seemed willing to grant the president some discretion on interrogation techniques in extraordinary circumstances, left no doubt that he thought Bush's signing statement went too far. McCain and Sen. John Warner, the Virginia Republican who chairs the Armed Services Committee, issued a joint statement last week that said, "We believe the president understands Congress' intent in passing by very large majorities legislation governing the treatment of detainees. The Congress declined when asked by admini- stration officials to include a presidential waiver of the restrictions included in our legislation."

McCain and Warner promised strict congressional oversight "to monitor the administration's implementation of the new law."

Presidential signing statements are obscure but significant documents that define how a president interprets the laws he signs. The statements are often intended to protect what the president believes are the prerogatives of his office, but they have also been criticized as a means by which a president can have the last word on policies or principles he lost in his negotiations with Congress.

Bush has eclipsed all other presidents in his use of signing statements to expand the boundaries of executive authority. In an analysis for Findlaw.com, journalist Jennifer Van Bergen noted that from the early 1800s until the end of the Carter administration in 1981, the executive branch issued a total of 75 signing statements. A spike during the Reagan and Clinton administrations raised the total, by all presidents, to 322 at the end of Clinton's second term.

By contrast, Bush had issued at least 435 signing statements by the end of his first term. Given that Bush regularly receives advice from his lawyers that he has the inherent constitutional authority to bypass Congress and the courts, his signing statements cannot be dismissed as perfunctory.

The larger questions about separation of powers and the extent of executive authority raised by Bush's increasingly imperial presidency may never be definitively decided while there is a Republican-con- trolled Congress and an admin- istration-friendly Supreme Court.

But Republicans voted overwhelmingly to support McCain's ban on cruel, inhuman or degrading treatment of prisoners. It is now up to them to join Democrats in establishing the congressional oversight necessary to make sure the White House understands that no means no when it comes to prisoner abuse.