Bush, the Would-Be Cherry Picker


WASHINGTON, D.C.—Ever since Arizona senator John McCain came forward last year with his anti-torture bill, President Bush and Vice President Cheney have been plotting to get rid of it. The one sure way to accomplish this would be for Bush to gain all of what he believes to be his rightful powers and block enforcement of laws already passed by Congress. Critics argue Bush already has gone too far in this direction, but on Monday, with his demand for the line-item veto, Bush showed signs of embracing yet wider authority.

The story is complex. It goes like this: First, Cheney went to Capitol Hill, and tried twisting arms behind closed doors, arguing that should Congress come down against torture, then it would wreck the CIA’s operations. Next the White House staff tried negotiating with McCain to water down the bill. They failed. In the end the torture provision wound up tucked into the massive Pentagon spending bill, which passed. McCain, the straight shooter and a potential Republican presidential nominee, emerged victorious. Or so it seemed.

However, buried in the anti-torture legislation was language that in effect permitted the U.S. to continue the practice of shipping prisoners abroad and looking the other way while they are tortured—all on grounds we can’t dictate practices in the jails of foreign lands.

In a statement issued when he signed the legislation, Bush said he might not enforce the torture ban if the national interest were in danger.

Such a position could be bolstered by another part of the Defense appropriations bill, an amendment by Senators Lindsey Graham of South Carolina and Democrat Carl Levin of Michigan. They inserted language that, the government is set to argue, exempts Guantanamo prisoners from the torture.

On Monday, Bush took yet another step to hammer home his interpretation of what he considers his sweeping powers under the constitution. He came out strongly for passage of the line-item veto, a measure backed by Democrats (including John Kerry) as well as Republicans. Bush said he needed the new authority to help him single out and erase so-called earmarks, items stuck into legislation by members seeking to satisfy campaign contributors and other vested interests.

“Today, I’m sending Congress legislation that will meet [constitutional] standards and give me the authority to strip special spending and earmarks out of a bill, and then send them back to Congress for an up-or-down vote,” the president said.

Congress passed the line-item veto in 1996 and it was signed into law by President Clinton. But it was tossed out by the Supreme Court on grounds it was unconstitutional, as a violation of the separation of powers. Current supporters think they can get the Supreme Court to okay the line-item veto if Congress is given a chance to override the veto after the president exercises it.

While nobody wants to put it this way, the line-item veto would allow Bush to cherry pick legislation passed by Congress, getting rid of what he didn’t like. In the 6-3 decision to overturn the line-item veto in 1998, Justice Stevens warned Congress of the impact of this executive privilege on the separation of powers, noting, “If the Line Item Veto Act were valid, it would authorize the president to create a different law—one whose text was not voted on by either House of Congress or presented to the president for signature.”

And if Bush could cherry pick a bill, he’d love to start with a provision like the ban on torture.