Righting the Wrongs of Others: Signing Statements, Superheroes and the Spectacle of the Detainee Treatment Act in Critical Perspective

On December 30, 2005, after an extended battle with Congress over the President's threats to veto the McCain Amendment's prohibition on cruel, inhuman and degrading treatment of detainees in Guantanamo, Afghanistan and Iraq, President Bush signed into law the Detainee Treatment Act of 2005, DTA. Along with the DTA, the President issued a signing statement which included two controversial assertions of executive power: (1) the power to construe the prohibitions against cruel, inhuman and degrading treatment 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 and (2) the power to selectively identify the Supreme Court precedents that the Executive Branch will acknowledge in taking care that the laws of the nation are faithfully executed. While many have taken issue with the President's use of the signing statement to cherry pick the laws by which he agrees to be bound, this Article takes a different approach. Focusing specifically, on the President's signing statement assertion that in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noticing that the text and structure of [the DTA] do not create a private right of action to enforce [the DTA], the executive branch shall construe [the DTA] not to create a private right of action, this Article examines the substantive and procedural integrity of the President's claim that the Supreme Court's 2001 opinion in Alexander v. Sandoval provides the judicial analysis and framework for his conclusion that the DTA, and specifically its prohibition on cruel, inhuman or degrading treatment, does not by its text, structure or intent allow a private right of action. This Article assesses the structure and text of the DTA against the backdrop of the history and conceptions of justice underpinning the doctrine of implied liability, otherwise known as the private right of action. This doctrine has for many years empowered private persons to institute legal actions in federal court. It has been applied transsubstantively in cases addressing widely divergent areas of law, including securities fraud, voting rights, and civil rights cases. In this case, the President's invocation of the Supreme Court's opinion denying a private right of action in Alexander v. Sandoval raises significant doubts about the legitimacy of Presidential signing statements purporting to interpret judicial precedent. The President's reliance on Alexander v. Sandoval begs the question why he chose to ignore the more contemporaneous, and arguably more relevant, Supreme Court 2005 decision in Jackson v. Birmingham Board of Education which did find a private right of action. Unlike a judicial opinion, the President's signing statement provides no reasoned justification for its interpretative conclusions. This Article takes the position that without a private right of action, the DTA is reduced to little more than a grandstanding spectacle produced for political consumption by the American people. Though the DTA has been heralded as an effort by Senate Republicans to reign in the executive branch and reclaim a moral high ground after the Abu Ghraib photos of prisoner abuse and the publication of various legal memoranda claiming executive power to ignore international treaties, federal statutes and international customary laws prohibiting torture and other forms of cruel, inhuman and degrading treatment, the President's signing statement is not the only aspect of the DTA that threatens to undermine its purpose to reclaim a moral high ground on the issue of detainee treatment. Indeed, a close analysis of its structure, text and context reveals the DTA to be a confused and confusing exercise in Congressional doublespeak, which purports to protect detainees even as it eliminates any judicial role in reviewing their treatment while in custody. The Article draws on popular culture to examine the broader significance of this particular political spectacle. In 2007, Captain America, the comic book superhero created in the 1940s to battle the fascist menace, was assassinated on the steps of the federal district courthouse of the Southern District of New York. Though American superhero culture offers many heroes whose successful battles against superhuman evils repeatedly assure us that good will triumph as we watch from the sidelines, the death of Captain America provides an opportune moment to reflect on the degree to which our constitutional legal order, let alone our moral integrity as a nation, can recover from the disgrace of our national torture scandal on the strength of a spectacle. We view this scandal as a problem yet to be dealt with, a gaping wound to our American psyche that demands action, not paralysis; remedy, not apology; personal responsibility, not abdication to our once and future superhero. Captain America is dead. Long live America.