Presidential signing statements are more than just executive branch lunacy.
Such mixed messages about torture allowed young, untrained guards to torture prisoners at Abu Ghraib. Where the rules for treatment of detainees had once been clear, the efforts of Jay Bybee and Alberto Gonzales and others in the White House telegraphed that some agencies could now follow different rules for torture; that not all torture really is torture; that sometimes the president may actually want you to torture; and that all this is largely for you to sort out on the ground. The McCain anti-torture amendment was an effort to create an absolutely clean distinction once more. Bush's signing statement obliterates that distinction and opens the door to yet more ambiguity and abuse.
And the future victims of such Bush-endorsed torture? They won't have a day in court, under President Bush's view of the law. Which means that—like all the mushrooming executive war powers—this ambiguous new torture regime will be secret and may never be tested in a courtroom at all.
Should we dismiss these statements just because President Bush is so brazen in his claims? So willing to take legal positions that are undefended because they're legally indefensible? Will all this just go away someday, when a court dismisses these statements as excessive and unfounded? No. Because President Bush isn't trying to win this war in the courts. Thus far, he has faced each legal setback as though it never happened; or—more often—he's recast it as a victory. He doesn't care what the courts someday make of his signing statements, just as he didn't care what the courts made of his enemy-combatant claims. He views the courts as irrelevant in his pursuit of this war. These signing statements are dangerous because they repeat and normalize—always using seemingly boilerplate language—claims about the boundless powers of a "unitary executive." By questioning the principle of court review in the McCain statement, Bush again erodes the notion of judicial supremacy—an idea we have lived with since Marbury v. Madison. When he asserts that he—and not the courts—is the final arbiter of his constitutional powers, he is calling for a radical shift in the system of checks and balances.
It's so tempting to laugh off Bush's signing statements as puffed-up, groundless claims that he is all-powerful, all-knowing, and also devastatingly handsome. But this is the president talking and instructing his subordinates—and also outlining a broad legal regime that may not technically be constitutional, but that hardly makes it laughable. These declarations promote a view of the law that may have no merit in the courts but may never have the chance to be resolved there in the first place.
Dahlia Lithwick writes about the courts and the law for Slate.