Rhetoric of exception: signing statements, sovereignty, and the Bush presidency

Abstract

Following the attacks on September 11, the Bush Presidency rapidly moved to expand the role and power of the Presidency to pursue the War on Terror. One technique that was used to expand the power of the president and construct the policies and politics necessary to pursue such a broad and undefined conflict was signing statements. Analysis demonstrates that signing statements are made effective through a synergistic relationship between the function, form, and rhetoric deployed with signing statements. I argue that signing statements are a tool to inaugurate the exceptional sovereign power described by Carl Schmitt and criticized by Giorgio Agamben. Because signing statements work to create exceptions in the law so that the executive agencies need not enforce undesirable parts of the bill, and are persuasive through the use of arguments based on exception taking and exceptional power, signing statements are both representative of and crucial to the creation of expansive presidential power. I conclude with an analysis of the signing statement attached to the Detainee Treatment Act which reserved the right of the president to have absolute power over the authority to render a decision on the treatment of persons detained by the United States as suspected terrorists, in spite of legislation to the contrary. I argue that this demonstrates the end point of the expansion of the sovereign power of the presidency and the role of signing statements in constructing it; that the leader of the country may make the decision over the life of individual persons without any legal or legislative recourse.