It is a bit of a philosophical conundrum if one can actually do good through bad methods. Of course you have to define good and bad, which are always value judgments. Let’s make this a little more concrete; one of the Presidents unfulfilled promises is to close the prison at Guantanamo Bay. It is a national shame that a prison was built specifically to try to avoid the legal system of the United States. There have been credible allegations of torture there, as well as statements by Bush era officials that the totality of treatment there also rises to the level of torture.
"Originally posted at Squarestate.net"
Over time the numbers of prisoners held there have been reduced from a high of over 800 to 174 today. The problem is that for those 174 they are basically in legal limbo. 50 of them are in the category of having no plans to charge nor will they be released. This is an obvious problem for our system of law. For the remaining 124 the plan has been to treat them like other criminals, charge them in federal court, present the evidence against them and see if we can convince a jury they should be imprisoned in one of our Super-Max prisons here the United States, just like any other criminal.
However the fear mongering by the Republicans and the acceptance of it by some of our more....oh hell I am just going to say it cowardly Democrats, has made this a political issue. In the recently passed Defense Authorization Bill, language was included that prevents the spending of military money for moving the prisoners from Guantanamo to the United States, even for trials and such. The language also limits but not completely prohibits the Executive branch from releasing the prisoners to a third country without a series of certifications and exemptions that, in practice, will make it all but impossible.
The White House and the President are still clear in their desire to close one of national shames, the Gitmo prison, but to do so they may have to resort to tactics used and abused by the criminal Bush administration, namely a signing statement.
Signing statements have been used since James Monroe was president, but from then until Ronald Reagan only a total of 75 had been issued. Starting with President Reagan it become a more common practice and reached what is hopped to be the zenith of their use under President Bush who challenged nearly 1,200 provisions of various laws, or more than twice the number of all 42 presidents before him combined.
A signing statement is basically a president saying that while he will sign the law he believes that provisions of the law infringe on his ability to conduct foreign policy or the power of the executive branch and that as such he does not intend to honor them. They are the Executive branch equivalent of the "secret hold" in the Senate, a way that allows the normal process to be ignored and to substitute one persons judgment for that of the Congress.
The irony here is that candidate Obama campaigned against the use of such statements for things like keeping prisoners in places like Gitmo. There can be little doubt that the scores of signing statements that the criminal President Bush issued were an unprecedented abuse of power. The problem is, when a previous president has carved out more power for the Executive Branch, it takes a super-human act of will for those who follow him in office to not keep and use that power.
Up to now President Obama has been pretty good about not issuing signing statements. The ones he has issued have been relatively benign with a total of 14 in the last two years (compared with 50 in the first two years of the Bush Administration) and now he is faced with the prospect of a big one to achieve a campaign promise.
So, we come back to our original question, can you do good by doing something that is not good. Signing statements may be mostly legal (the Supreme Court has not directly or recently weighed in on it) but the way they were used by the previous administration shows that they are not a tool that really fits with our separation of powers structure. If a president does not like the provisions of a law, he or she has a method to prevent it from becoming law, namely the veto. This is the proper way for a president to object to in perceived infringement on Executive Branch power. If the veto is overridden there are always the Courts.
To use this back-door method to signal that you will not follow the previsions of a law that you signed into law is to circumvent the constitutionally laid out process. While there may have been some lee-way for previous presidents, when we are coming off a clear and on going abuse of this privilege it is not appropriate to use it to thwart the will of Congress.
At the same time keep the prison at Gitmo open is not acceptable either. We damage our commitment to the rule of law everyday that detainees are held without charge or trial but will not be released either. The longer it goes on, the more likely that this "one off exception" will become more widely acceptable. The danger of a slippery slope toward holding citizens this way grows as more and more people grow up in a United States that holds people on the say so of the President alone and if it does bring them to trial it is in rigged and unjust Military Commissions.
This state of affairs can not be allowed to continue. We have cashed in almost all of our credibility on rule of law, torture and basic human rights by establishing and operating this prison camp in Cuba. The only way to fix that state of affairs to close this disgrace and trust in our system of law, which until recent times has been, with all of its obvious faults, the envy of the world.
Is it worse to keep the prison open than it is to leave the door open for a less restrained president to have a card he can play to get out of any provision of law that he does not like? I don’t know. I like to think of myself as a pragmatic idealist. It is always better to be moving towards perfection, but recognizing that it is unattainable. These two issues are a real problem in that they both strike at an area where I try to be as idealistic as possible, the working of the Constitution and the law.
In the end I think the president will issue the signing statement. If it gives him the room to actually close the prison at Gitmo, that will be a net plus. But if he does it and fails to achieve that goal then it is lose/lose for the prisoners there and anyone who believes in the rule of law.
The floor is yours.