US Must Release Names of Guantanamo Prisoners

Last week, the US District Court in Manhattan directed the Bush Administration to release the names and nationalities of "detainees" being held at Guantanamo Bay, Cuba. "[I]t is hard to escape the inference that the Government's entire [privacy] argument before this Court is a cover for other concerns, such as the Government's desire, only recently modified by the courts, to keep the detainees incommunicado with the outside world," the judge wrote. The Associated Press sued the Defense Department in April 2005 after the Department refused to release the information about military tribunals requested under the Freedom of Information Act.

On Friday, Sen. John McCain (R-AZ) continued to express concern about "interrogation methods" at Guantanamo. "Now, if they want to keep them in Guantanamo or Des Moines, Iowa, that's not a critical issue to me. What is critical is that we adhere to treaties that we are signatories to and observe basic human rights and obey the law that we just passed concerning cruel and inhumane and degrading treatment."

McCain was the primary sponsor of an anti-torture bill that President Bush signed late last year, although Bush included a "signing statement" which asserted that he could bypass the law at his discretion. Writing for FindLaw, former Nixon Administration official John W. Dean noted that, through the use of signing statements, "during his first term Bush raised a remarkable 505 constitutional challenges to various provisions of legislation that became law." Dean goes on:

Bush is using signing statements like line item vetoes. Yet the Supreme Court has held the line item vetoes are unconstitutional. In 1988, in Clinton v. New York, the High Court said a president had to veto an entire law: Even Congress, with its Line Item Veto Act, could not permit him to veto provisions he might not like.

The Court held the Line Item Veto Act unconstitutional in that it violated the Constitution's Presentment Clause. That Clause says that after a bill has passed both Houses, but "before it become[s] a Law," it must be presented to the President, who "shall sign it" if he approves it, but "return it" - that is, veto the bill, in its entirety-- if he does not...

The frequency and the audacity of Bush's use of signing statements are troubling. Enactments by Congress are presumed to be constitutional - as the Justice Department has often reiterated. For example, take what is close to boilerplate language from a government brief (selected at random): "It is well-established that Congressional legislation is entitled to a strong presumption of constitutionality. See United States v. Morrison ('Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt.')." ...

It is remarkable that Bush believes he can ignore a law, and protect himself, through a signing statement. Despite the McCain Amendment's clear anti-torture stance, the military may feel free to use torture anyway, based on the President's attempt to use a signing statement to wholly undercut the bill.

This kind of expansive use of a signing statement presents not only Presentment Clause problems, but also clashes with the Constitutional implication that a veto is the President's only and exclusive avenue to prevent a bill's becoming law.

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