Home -> Law Blog Directory -> Legal Commentary Blogs -> Balkinization

OR PHONE (866) 635-1838 for Bankruptcy Help, (866) 635-6190 for Divorce,
(866) 635-2689 for Personal Injury or (866) 635-9402 for Criminal Defense

Find a Local Lawyer

Bankruptcy (866) 635-1838
Divorce (866) 635-6190
Personal Injury (866) 635-2689
Criminal Defense (866) 635-9402

Legal Commentary

: Balkinization

What Bush's Veto Means: His Endgame and His Legacy

By Jack M. Balkin

ADVERTISEMENTS

Today President Bush vetoed an intelligence authorization bill which would have required the CIA to abide by the Army Field Manual. The Army Field Manual outlaws waterboarding and a variety of other coercive techniques that the Administration euphemistically calls "enhanced interrogation techniques." The White House announced previously that it had waterboarded people before and might do so again in the future. Bush's veto is, in effect, an attempt to retain the option to violate the Geneva Conventions, the Federal Anti-Torture statute, and the McCain Amendment. He would only retain this option, however, because his lawyers have made unreasonable interpretations of U.S. law to conclude that the most egregious of these techniques-- including waterboarding-- are lawful, instead of what they actually are: violations of federal law and breaches of Geneva.

The New York Times described the veto as Bush cement[ing] his legacy of fighting for strong executive powers. He has certainly cemented a legacy of making unreasonable claims about executive power. He has also created a lasting and shameful legacy of torturer-in-Chief. What he has not done is placed a lasting imprint on the powers of the Presidency (although he has not seriously weakened it either.) By itself, Bush's veto does little to cement presidential power. For example, nothing prevents a future Congress controlled by Democrats and a Democratic president to pass the same legislation after Bush is gone.

Rather, it is worth recognizing Bush's veto-- and indeed, many other future actions and acts of intransigence-- as part of an endgame strategy. At this point in Bush's Presidency he deals from a position of weakness, not strength. His major goals are to prevent criminal prosecutions of himself (unlikely in any event) and his aides (more likely), to keep the public from finding out much of what he and his advisors actually did and ordered done during his presidency (his fight for immunity for telecom companies who engaged in illegal surveillance should be understood as part of this larger strategy), to entrench the U.S. presence in Iraq for the foreseeable future, and do what he can to ensure that John McCain becomes President, or failing that, Hillary Clinton as a second best solution. He figures that McCain, and, to a lesser extent Clinton, are most likely to continue aspects of his policies and keep troops in Iraq for some time. The longer that the next president continues his policies-- including warrantless surveillance, his interrogation practices, and his war in Iraq, the longer these features will become normalized and/or the next President's problem.

What Bush does not want, above all, is to be followed by a repudiationist or reconstructive Presidency that establishes a new political order through systematic rejection of the themes of his Presidency, thus making Bush the modern day equivalent of Herbert Hoover and Jimmy Carter rather than Harry Truman. (See my previous discussion of the larger issues here, here, here, and here.) Bush's presidency is a failed presidency; the only issue now is how badly he has failed.

Full post as published by Balkinization on March 08, 2008 (boomark / email).