It appears that President Bush agreed to Senator McCain's amendment prohibiting "cruel and degrading" treatment of prisoners because his legal advisors had interpreted the limitation out of existence before it was even signed.
When signing the law, the Bush Administration issued a signing statement saying,
The executive branch shall construe Title X in Division A of the Act, relating to detainees, 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, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.
Or, in other words, “I, President Bush, as Commander in Chief, reserve the right to ignore this law.” We have already established that the Bush Administration views that there are nothing that the President may not do in his role as Commander in Chief.
Applied Political Philosophy
Today, I would like apply the Bush Administration's political philosophy to a hypothetical future for the nation of Iraq. The question that I want to explore is one in which a hypothetical Iraqi President gets elected where this President draws his political philosophy directly from the doctrines that the Bush Administration has been defending.
Important Note: This is not a prediction of what will happen in Iraq. This is an examination of the logical implications of the Bush Administration's political philosophy.
For this examination, let us assume that Iraq has had its elections and has sworn in its first President. There is dancing in the streets, fireworks, frolicking, cavorting, and general cheerfulness and merriment.
I will further assume that the election goes to a coalition of religiously conservative Shiite Muslims. They, in turn, name one of their own as President. Various minority parties try to unite in opposition to this conservative majority. However, they are politically divided and factious, allowing the religious conservatives to draw off enough support and appeal to the religious sentiments of the majority in order to gain a clear majority in the election.
Limits on Presidential Power
Then, this new Iraqi President takes his oath of office. There is still some violence. Terrorist bombs go off in and around Baghdad. People are killed. This President goes before the people and says that his primary right and duty is to protect the country from these insurgents. He asserts that he and his administration will interpret all laws and the Constitution itself only in ways consistent with the this fact. Neither the legislature nor the Constitution nor any judge can legitimately challenge his authority in this area.
A Religiously Conservative Judicial Branch
Also, this religiously conservative Iraqi President paraphrases President Bush, and insists, “We need common-sense judges who understand that our rights were derived from Allah. He selects his judges by summoning the leaders of the Shiite mosques and asking them who they would like to see in this position. Naturally, they give the President a list of the most pious judges. Because the Shiite Muslims control the legislature, these judges are approved.
Of course, these judges live and die by the premise that all law is found first and foremost in the Koran, and in their interpretation of the Koran at that. They will not interpret any provision as being inconsistent with their specific religious beliefs. People who come before the courts learn that they have to not only defend the claim that their acts were in accordance with the law, but also that they did not violate scripture.
Furthermore, this Iraqi President has the right to appoint federal judges across the country. Kurds, Sunnis, and other minorities find that they too must prove that their actions conform to Shiite religious traditions. For the sake of appearance, the government says, "You may believe what you wish to believe." The government only insists that everybody act like Shiite Muslims.
If anybody should challenge the President's authority in court, these Judges will naturally defend them. The President is the source of their power, and they are the source of the Presidential power. Those who do not have power will have no way to break through this circle.
The Issues of Surveillance, Extraordinary Rendition, and Torture
Just as Bush has determined that he has the right to spy on American Muslims, as well as anti-war organizations that do not not support his policies, this Iraqi President assumes the right to spy on individuals in his country that he determines may be a threat to its security. Naturally, this means spying primarily on the Sunni Muslims and Kurds, his two most powerful political rivals.
He does this quietly, because he does not want to alert the Sunnis and Kurds that he is doing this, and even insists that there will be no surveillance within the country without a court order. However, once the news breaks, he declares that those who leaked this information have damaged Iraqi security and immediately seeks to purge these traitors from power.
After the news of the secret surveillance breaks, the Iraqi President asserts that, as Commander in Chief, he has an unlimited right to collect military intelligence. He then defines 'military intelligence' as anything that he deems useful. He scoffs at the idea of judicial review -- military units need no warrants to collect military intelligence on "the enemy".
He also denies the need to obtain warrants before arresting those that he suspects are threatening the security of Iraq. Instead, he sends out squads of special agents to round up suspected terrorists (among the Sunni Muslims) and sends them off to secret prisons where they are interrogated. From the point of view of the people of Iraq, these political critics simply "disappear."
When asked about these disappearances, he neither confirms nor denies the reports. He simply repeats his mantra that as Commander in Chief he has the authority to take all necessary steps to secure the safety of the people of Iraq, including the capture, detainment, and questioning of "enemy combatants".
In his role as Commander in Chief, this Iraqi President gets to determine the manner in which "military intelligence" will be acquired from these prisoners. The civilized world calls these techniques 'torture'. However, because this word has such negative consequences, this Iraqi President decides to define 'torture' as 'any action that I have not authorized.” This allows him to stand up before any audience and say truthfully, "We do not torture."
One thing we know about torture is that people will tell their captors anything they think the captors wants to hear in order to avoid the torture. Naturally, what this Iraqi President wants to hear is that his political rivals are somehow associated with these 'terrorist' activities.
Turning once again to President Bush for inspiration, he decides to adopt the same standards for proof in linking his rivals to terrorists that Bush accepted in linking Saddam Hussein to al-Queida. This amounts to little more than assuming guilt, then waiting to see if anybody can prove that this assumption is false.
With such low standards, he quickly has all of the evidence he needs to say that those he wants to get rid of are guilty of crimes against Iraq. His squads soon capture his political rivals, send them off to these “black site” prisons where they can be questioned. Soon, using his favorite interrogation techniques, he is able to extract confessions from them, and deals with them accordingly.
Iraq Molded by Bush Administration Philosophy
So, here we have it. A nation created by President Bush and built on his standards of political excellence.
Again, I want to remind the reader that this is not a prediction of what will happen. Rather, it is a description of a country whose President has done nothing that President Bush has not defended. This is the case of a hypothetical Iraqi President who can look Bush in the eye and say, "I am doing exactly what you said I have a right to do."
If this hypothetical Iraqi president has any doubt about his authority to do any of the items that I listed above, all he needs to do is read the writings of the American Attorney General Alberto Gonzales, whose essays on political liberty will certainly be placed alongside the works of John Locke, Adam Smith, Thomas Jefferson, and Thomas Paine.
(Just to be clear, the previous paragraph represented sarcasm. I felt that I should mention this since, in the off chance that somebody in the Bush Administration should read this, they may assume that the previous statement was sincere.)