Congress & Courts Reassert Themselves?

June 7, 2006

Republican and Democratic House leaders join forces to protest the FBI search of a congressman's office. The Senate Intelligence Committee demands fuller briefings from the CIA. The Supreme Court hears a landmark case challenging presidential war powers.

After five years of a concerted White House campaign, there are tentative signs that Congress and the courts are beginning to push back against what has been the greatest expansion of presidential powers in a generation or more.

Those pushing back include some congressional Republicans and conservative jurists who have been among President Bush's chief allies. The efforts surely would intensify if Democrats won control of the House or Senate in November's elections – and with it the power to convene hearings and issue subpoenas.

"You ask, 'Is the tide shifting?' and I say, 'Maybe, maybe,' " says Senate Judiciary Chairman Arlen Specter, R-Pa., who has pushed for stronger congressional oversight of intelligence operations. "If you ask me if I still feel like a lonely voice, I would say that I feel like a member of a small chorus."

Some examples:

— House Speaker Dennis Hastert and Democratic Leader Nancy Pelosi, usually at war, issued a joint statement denouncing the FBI search last month of Rep. William Jefferson's congressional office as a violation of the separation of powers between co-equal branches of government. Their ultimatum that seized documents be returned is now the subject of negotiations with the Justice Department, which is investigating bribery allegations against Jefferson, D-La.

— The Senate Intelligence Committee voted 9-6 two weeks ago to demand that the administration notify all members of the committees about intelligence operations. The administration has bypassed the intelligence committees to inform only eight congressional leaders about such sensitive programs as the National Security Agency's warrantless-surveillance operation.

— Congressional Republicans and Democrats in March upended plans for a Dubai-owned company to take over some U.S. port operations, forcing the firm to promise to transfer the operations to a "U.S. entity." Outraged lawmakers weren't convinced when the president dismissed their national-security concerns as unfounded, and they weren't deterred when he threatened the first veto of his presidency to protect the deal.

— The White House and Congress continue to jockey over who has the last word on the treatment of terror suspects. Congress approved an amendment banning torture over the objections of Vice President Cheney. Bush signed the legislation in December but issued a "signing statement" in which he reserved the right to waive the ban, which he suggested violated his constitutional authority as commander in chief. Senate Armed Services Chairman John Warner of Virginia and Arizona Sen. John McCain of Arizona, both Republicans, then issued a joint statement vowing "strict oversight to monitor" implementation of the law.

The dispute has delayed the release of a new Army Field Manual on interrogation this spring. The Los Angeles Times reported Monday that several senators say the proposed manual sets standards for terror suspects that violate the congressional ban.

The 'Nature of Our System'

White House spokeswoman Dana Perino says the administration has been able to meet Congress' concerns without conceding presidential powers. She notes that administration officials agreed to brief Intelligence Committee members last month about the NSA operation, reported in The New York Times in December, which includes wiretapping calls within the United States without warrants if one of the participants is abroad. The administration calls it the Terrorist Surveillance Program.

"There have been – and always will be by nature of our system – conflicts between Congress and the White House on the limits of executive power," Perino says. "But far from clashing, the two branches have worked well together on very difficult cases and generally made accommodations on issues, like the Terrorist Surveillance Program."

It's true that Congress generally hasn't used or even threatened to use its most potent weapons in a confrontation with the White House, such as issuing subpoenas or cutting off funding for programs.

Still, Bruce Fein, a Justice Department official in the Reagan administration, says Congress' attitude toward the White House is toughening a bit. "We're seeing, maybe, the embryonic stages of drawing the line and saying: 'Here. No more,' " he says.

In the courts, too, some judges in recent months have been more willing to scrutinize Bush's assertions of presidential power.

Judge J. Michael Luttig of the Fourth Circuit Court of Appeals, who had been on Bush's short list of possible Supreme Court picks, last fall wrote a key opinion endorsing the administration's argument that the president could order Jose Padilla, a U.S. citizen and suspected terrorist, to be held indefinitely in a military brig without charges.

But when the administration abruptly decided to charge Padilla in civilian court – apparently to avoid a possible Supreme Court reversal – the judge objected and tried to stop the transfer. Luttig, who resigned from the bench last month, warned of a "substantial cost to the government's credibility before the courts."

The Supreme Court is expected to rule this month in Hamdan v. Rumsfeld, another case that could test presidential powers. Lawyers for Salim Ahmed Hamdan, Osama bin Laden's former driver, are challenging the administration's plan to put prisoners at Guantanamo Bay in Cuba on trial for war crimes in special military tribunals.

At issue: Does Bush's claim of presidential war powers override the protections of the Geneva Conventions?

Some historians say a pattern seen after previous threats to the nation's security – during the Civil War and World War II, for instance – may be repeating itself now that five years have passed since the terror attacks on Sept. 11, 2001.

"In the first few years after a crisis emerges, the courts tend to be very deferential to the White House," says Phillip Cooper of Portland State University in Oregon, who studies separation of powers. "But what tends to happen is after two or three years of deference, then the courts may begin to take a hard look at what's going on … and remind the administration they don't have carte blanche."

On Saturday, the American Bar Association's board of governors voted to establish a bipartisan task force to investigate whether Bush has gone beyond his constitutional authority in asserting a right to ignore provisions of new laws. Bush has issued more than 750 "signing statements" – more than all previous presidents combined – that state his interpretation of new laws and sometimes declare that they infringe on his presidential powers.

For 30 Years, a Cheney Cause

Even before 9/11, Cheney had made restoring presidential authority a priority. As White House chief of staff for President Ford, Cheney found himself dealing with laws passed in the wake of the Vietnam War and the Watergate scandal that constrained presidential authority. The 1973 War Powers Act, for one, restricted a president's authority to launch military action without congressional approval.

Later, as a Wyoming congressman, Cheney argued that Congress was "abusing its power" when it barred the Reagan administration from funding the Nicaraguan contras. The administration's efforts to evade the law by funneling profits from secret arms sales to Iran reflected "mistakes in judgment and nothing more," according to a minority report he helped draft.

Now, as vice president, Cheney has been in a position to resist and even reverse efforts by Congress to restrain the executive. In the administration's first months, the energy task force he chaired went to court to avoid disclosing the names of industry executives it consulted.

Recently, amid the furor over the NSA's warrantless-surveillance program, Cheney took a similarly hard line. "We have all the legal authority we need," the vice president said in an interview on PBS' NewsHour With Jim Lehrer, citing the Constitution and a congressional resolution passed soon after 9/11. And Congress' role? "We said, 'Look, if you've got suggestions, we're happy to listen to them.' "

The Bush administration has taken a series of actions to expand presidential powers: Enabling past presidents and vice presidents to restrict release of their papers after the 12-year period set in law has expired. Refusing to allow aides to testify before Congress about the federal response to 9/11 and to Hurricane Katrina, arguing that might discourage staffers from providing "unvarnished advice" in the future. Asserting wartime powers to ignore federal laws and international treaties when the president says national security is at stake.

"The administration has been very consistent," Cooper says. "At every turn the White House has issued a reading as expansive as possible for its own authority, a reading as narrow as possible of congressional authority, and in some cases pre-empted the courts."

At a rare session with reporters in December, Cheney expressed satisfaction with what the administration has achieved.

"The president of the United States needs to have his constitutional powers unimpaired," Cheney said. "I do think that, to some extent now, we've been able to restore the legitimate authority of the presidency."

'In a Class' With Nixon, Wilson

Bush's actions and Congress' response matter beyond his own tenure at the White House. They set precedents for future administrations and courts, though presidential powers have surged and ebbed through U.S. history.

Legal historian Kermit Hall says Bush is "in a class" with Richard Nixon and Woodrow Wilson during World War I in extending presidential authority. Tom Mann, a congressional scholar at the Brookings Institution, says Bush has exceeded even the expansive view that Franklin Roosevelt took of the presidency during the buildup to World War II.

Analysts credit Bush's ability to prevail in large part to the aftermath of 9/11, which buttressed Americans' backing for a president with the power to battle a shadowy and terrifying foe. In the fiercely partisan climate of Washington, the Republican-controlled House and Senate generally have lined up behind Bush, not challenged him.

"For five years, this Congress has been breathtakingly supine in the face of the most aggressive assertions of executive power we have seen in modern American history," Mann says. Even now, he says, the House "blowback" over the Jefferson search "probably wouldn't have happened if we didn't have a president whose popularity is in the low 30s."

Bush's dismal job-approval ratings have made critics in Congress and elsewhere more willing to confront him. Another factor: As time passes since 9/11, the threat of terrorism remains a potent argument but may no longer automatically trump other issues.

Now, about half of Americans surveyed by USA TODAY/Gallup from Thursday to Sunday say the Bush administration has "gone too far in expanding the power of the presidency." About one-third say it has struck the right balance. Just 14% say it hasn't gone far enough.

Congress' outrage over the search of Jefferson's office hasn't struck a sympathetic chord with the public, though. In an ABC News Poll taken last week, 86% said the FBI acted properly.

Of two dozen letters to the editor to USA TODAY on the issue, many derided Congress for countenancing corruption. Several wondered why lawmakers hadn't shown equal outrage over, say, the warrantless-surveillance program. Not one praised the institution for defending separation of powers.

Even some lawmakers are skeptical about Congress' commitment to the issue. "This is a newfound interest," says Sen. Chris Dodd, D-Conn. "I hope it extends beyond just protecting ourselves."

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ABA To Investigate Bush’s Signing Statements

June 4, 2006

From The Boston Globe:

The board of governors of the American Bar Association voted unanimously yesterday to investigate whether President Bush has exceeded his constitutional authority in reserving the right to ignore more than 750 laws that have been enacted since he took office.

Meeting in New Orleans, the board of governors for the world's largest association of legal professionals approved the creation of an all-star legal panel with a number of members from both political parties.

They include a former federal appeals court chief judge, a former FBI director, and several prominent scholars — to evaluate Bush's assertions that he has the power to ignore laws that conflict with his interpretation of the Constitution.

Bush has appended statements to new laws when he signs them, noting which provisions he believes interfere with his powers.

Among the laws Bush has challenged are the ban on torturing detainees, oversight provisions in the USA Patriot Act, and “whistle-blower" protections for federal employees.

The challenges also have included safeguards against political interference in taxpayer-funded research.

Bush has challenged more laws than all previous presidents combined.

The ABA's president, Michael Greco, said in an interview that he proposed the task force because he believes the scope and aggressiveness of Bush's signing statements may raise serious constitutional concerns. He said the ABA, which has more than 400,000 members, has a duty to speak out about such legal issues to the public, the courts, and Congress.

“The American Bar Association feels a very serious obligation to ensure that when there are legal issues that affect the American people, the ABA adopts a policy regarding such issues and then speaks out about it," Greco said. “In this instance, the president's practice of attaching signing statements to laws squarely presents a constitutional issue about the separation of powers among the three branches."

The signing statements task force, which was recruited by Greco, a longtime Boston lawyer who served on former Governor William F. Weld's Judicial Nominating Council, includes several Republicans. Among them are Mickey Edwards , a former Oklahoma representative from 1977 to 1993, and Bruce Fein , a Justice Department official under President Reagan.

In interviews, several of the panel members said they were going into the project with an open mind, but they expressed concerns about Bush's actions.

“I think one of the most critical issues in the country right now is the extent to which the White House has tried to expand its powers and basically tried to cut the legislative branch out of its own constitutionally equal role, and the signing statements are a particularly egregious example of that," Edwards said. “I've been doing a lot of speaking and writing about this, and when the ABA said they were looking to take a position on signing statements, I said that's serious because those people carry a lot of weight."

William Sessions , a retired federal judge who was the director of the FBI under both Reagan and President George H.W. Bush , said he agreed to participate because he believed that the signing statements raise a “serious problem" for the American constitutional system.

“I think it's very important for the people of the United States to have trust and reliance that the president is not going around the law," Sessions said. “The importance of it speaks for itself."

Another member, Patricia Wald, is a retired chief judge of the US Court of Appeals for the District of Columbia, appointed by President Carter.

She said she had monitored the use of signing statements by previous administrations, but “the accelerated use in recent years presents a real question about separation of powers and checks and balances."

Wald also said she was especially interested in studying how signing statements affect the federal bureaucracy. As a judge, Wald said, she dealt with many cases involving challenges to decisions made by administrative agencies. She said that courts are deferential to such decisions because they are supposed to be made by objective specialists in the agencies. But a heavy use of signing statements could call that assumption into question.

“If Congress passes a law telling the people in the bureaucracy that `this is what you should do,' and the president signs it but attaches a statement saying `I don't want you to do it,' how is that going to affect the motivation of the bureaucracy?" she said.

The task force also includes several prominent legal scholars, such as Harold Koh , dean of Yale Law School and a former official in the Reagan and Clinton administrations; Kathleen Sullivan , former dean of Stanford Law School; Charles Ogletree , a Harvard law professor; and Stephen Saltzburg , a professor at George Washington University Law School.

Saltzburg — who was a Justice Department official under Reagan and the first president Bush, as well as a prosecutor in the Iran-Contra scandal — said he did not believe that signing statements were unconstitutional.

But, he said, frequent use of them could create bad perceptions about whether the US government obeys the rule of law.

“The president can say anything he wants when he signs a bill," Saltzburg said. “[But] what does it say about respect for the Constitution and for the notion of checks and balances to have the president repeatedly claim the authority not to obey statutes, which he is signing into law?"

Rounding out the panel are Mark Agrast , a former legislative counsel for Representative William D. Delahunt , Democrat of Quincy, and Thomas Susman, who worked in the Justice Department's Office of Legal Counsel under both Presidents Johnson and Nixon , and was later counsel to the Senate Judiciary Committee.

Susman said he agreed to serve out of intellectual curiosity: “I think it's a fascinating subject," he said. The task force is chaired by Neal Sonnett , a former federal prosecutor. Earlier this year, Sonnett chaired a similar ABA panel of bipartisan specialists who studied the legality of Bush's warrantless spying program.

The earlier panel unanimously concluded that Bush should obey a law requiring warrants for such surveillance, or he should ask Congress to change the law, rather than simply ignoring it.

In February, the ABA House of Delegates voted overwhelmingly to endorse the surveillance task force's recommendations, enabling Greco to testify about the program before Congress.

Sonnett said he planned to run the task force in a similar fashion. The group will discuss the issues in telephone conference calls. They will also divide up issues to research for the report that will accompany any of their recommendations, circulating drafts until they reach a consensus.

The task force will make its recommendation this summer, Greco said, and the 550-member ABA House of Delegates will vote on whether to adopt its findings at a meeting in August.

The chairman of the Senate Judiciary Committee, Arlen Specter, Republican of Pennsylvania, promised to hold a hearing on Bush's use of signing statements.

Specter pledged the action after an article in The Boston Globe described the scope and details of Bush's assertions concerning the laws in them.

Greco and Sonnett also said the Globe's coverage of signing statements had persuaded them to launch the task force


GOP Senator Comes Out Of The Rabbit Hole?

May 4, 2006

From The Boston Globe:

Hearing vowed on Bush's powers
Senator questions bypassing of laws

The chairman of the Senate Judiciary Committee, accusing the White House of a ''very blatant encroachment" on congressional authority, said yesterday he will hold an oversight hearing into President Bush's assertion that he has the power to bypass more than 750 laws enacted over the past five years.

''There is some need for some oversight by Congress to assert its authority here," Arlen Specter, Republican of Pennsylvania, said in an interview. ''What's the point of having a statute if . . . the president can cherry-pick what he likes and what he doesn't like?"

Specter said he plans to hold the hearing in June. He said he intends to call administration officials to explain and defend the president's claims of authority, as well to invite constitutional scholars to testify on whether Bush has overstepped the boundaries of his power.

The senator emphasized that his goal is ''to bring some light on the subject." Legal scholars say that, when confronted by a president encroaching on their power, Congress's options are limited. Lawmakers can call for hearings or cut the funds of a targeted program to apply political pressure, or take the more politically charged steps of censure or impeachment.

Specter's announcement followed a report in the Sunday Globe that Bush has quietly asserted the authority to ignore provisions in 750 bills he has signed — about 1 in 10.

Over the past five years, Bush has stated that he can defy any statute that conflicts with his interpretation of the Constitution. In many instances, Bush cited his role as head of the executive branch or as commander in chief to justify the exemption.

The statutes that Bush has asserted the right to override include numerous rules and regulations for the military, job protections for whistle-blowers who tell Congress about possible government wrongdoing, affirmative action requirements, and safeguards against political interference in federally funded research.

Bush made the claims in ''signing statements," official documents in which a president lays out his interpretation of a bill for the executive branch, creating guidelines to follow when it implements the law. The statements are filed without fanfare in the federal record, often following ceremonies in which the president made no mention of the objections he was about to raise in the bill, even as he signed it into law.

Dana Perino, a White House spokeswoman, said via e-mail that if Specter calls a hearing, ''by all means we will ensure he has the information he needs." She pointed out that other presidents dating to the 19th century have ''on occasion" issued statements that raise constitutional concerns about provisions in new laws.

But while previous presidents did occasionally challenge provisions in laws while signing them, legal scholars say, the frequency and breadth of Bush's use of that power are unprecedented.

Bush is also the first president in modern history who has never vetoed a bill, an act that gives public notice that he is rejecting a law and can be overridden by Congress. Instead, Bush has used signing statements to declare that he can bypass numerous provisions in new laws.

The statements attracted little attention in Congress or the media until recently, when Bush used them to reserve a right to bypass a new torture ban and new oversight provisions in the Patriot Act.

''The problem is that you have a statute, which Congress has passed, and then the signing statements negate that statute," Specter said. ''And there are more and more of them coming. If the president doesn't like something, he puts a signing statement on it."

Specter added: ''He put a signing statement on the Patriot Act. He put a signing statement on the torture issue. It's a very blatant encroachment on [Congress's constitutional] powers. If he doesn't like the bill, let him veto it."

It was during a Judiciary Committee oversight hearing on the FBI that Specter yesterday announced his intent to hold a hearing on Bush's legal authority. Another committee member, Senator Russ Feingold, Democrat of Wisconsin, also questioned Bush's assertions that he has the authority to give himself an exemption from certain laws.

''Unfortunately, the president's signing statement on the Patriot Act is hardly the first time that he has shown a disrespect for the rule of law," Feingold said. ''The Boston Globe reported on Sunday that the president has used signing statements to reserve the right to break the law more than 750 times."

Feingold is an outspoken critic of Bush's assertion that his wartime powers give him the authority to set aside laws. The senator has proposed censuring Bush over his domestic spying program, in which the president secretly authorized the military to wiretap Americans' phones without a warrant, bypassing a 1978 surveillance law.

At the hearing yesterday, Feingold pressed FBI director Robert Mueller to give assurances that the bureau would comply with provisions in the Patriot Act and to tell Congress how agents are using the law to search homes and secretly seize papers.

Mueller said he saw no reason that the bureau couldn't share that information with Congress. But he also said that he was bound to obey the administration, and declined to promise that he would ''go out there and fight" on behalf of Congress if Bush decided to override the Patriot Act's oversight provision and ordered the FBI not to brief Congress.

Feingold also said Bush's legal claims have cast a cloud over a host of rules and restrictions that Congress has passed, using its constitutional authority to regulate the executive branch of government.

''How can we know whether the government will comply with the new laws that we passed?" Feingold said. ''I'm not placing the blame on you, obviously, or your agents who work to protect this country every day, but how can we have any assurance that you or your agents have not received a secret directive from above requiring you to violate laws that we all think apply today?"

Mueller replied: ''I can assure with you with regard to the FBI that our actions would be taken according to appropriate legal authorities."

Specter said that challenging Bush's contention that he can ignore laws written by Congress should be a matter of institutional pride for lawmakers. He also connected Bush's defiance of laws to several Supreme Court decisions in which the justices ruled that Congress had not done enough research to justify a law.

''We're undergoing a tsunami here with the flood coming from the executive branch on one side and the judicial branch on the other," Specter said. ''There may as well soon not be a Congress. . . . And I think that most members don't understand what's happening."


Bush’s Unitary Executive Claim Is Outlandish!

May 1, 2006

From The New York Times:

Bush challenges hundreds of laws, cites powers of his office

President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution.

Among the laws Bush said he can ignore are military rules and regulations, affirmative-action provisions, requirements that Congress be told about immigration services problems, ''whistle-blower" protections for nuclear regulatory officials, and safeguards against political interference in federally funded research.

Legal scholars say the scope and aggression of Bush's assertions that he can bypass laws represent a concerted effort to expand his power at the expense of Congress, upsetting the balance between the branches of government. The Constitution is clear in assigning to Congress the power to write the laws and to the president a duty ''to take care that the laws be faithfully executed." Bush, however, has repeatedly declared that he does not need to ''execute" a law he believes is unconstitutional.

Former administration officials contend that just because Bush reserves the right to disobey a law does not mean he is not enforcing it: In many cases, he is simply asserting his belief that a certain requirement encroaches on presidential power.

But with the disclosure of Bush's domestic spying program, in which he ignored a law requiring warrants to tap the phones of Americans, many legal specialists say Bush is hardly reluctant to bypass laws he believes he has the constitutional authority to override.

Far more than any predecessor, Bush has been aggressive about declaring his right to ignore vast swaths of laws — many of which he says infringe on power he believes the Constitution assigns to him alone as the head of the executive branch or the commander in chief of the military.

Many legal scholars say they believe that Bush's theory about his own powers goes too far and that he is seizing for himself some of the law-making role of Congress and the Constitution-interpreting role of the courts.

Phillip Cooper, a Portland State University law professor who has studied the executive power claims Bush made during his first term, said Bush and his legal team have spent the past five years quietly working to concentrate ever more governmental power into the White House.

''There is no question that this administration has been involved in a very carefully thought-out, systematic process of expanding presidential power at the expense of the other branches of government," Cooper said. ''This is really big, very expansive, and very significant."

For the first five years of Bush's presidency, his legal claims attracted little attention in Congress or the media. Then, twice in recent months, Bush drew scrutiny after challenging new laws: a torture ban and a requirement that he give detailed reports to Congress about how he is using the Patriot Act.

Bush administration spokesmen declined to make White House or Justice Department attorneys available to discuss any of Bush's challenges to the laws he has signed.

Instead, they referred a Globe reporter to their response to questions about Bush's position that he could ignore provisions of the Patriot Act. They said at the time that Bush was following a practice that has ''been used for several administrations" and that ''the president will faithfully execute the law in a manner that is consistent with the Constitution."

But the words ''in a manner that is consistent with the Constitution" are the catch, legal scholars say, because Bush is according himself the ultimate interpretation of the Constitution. And he is quietly exercising that authority to a degree that is unprecedented in US history.

Bush is the first president in modern history who has never vetoed a bill, giving Congress no chance to override his judgments. Instead, he has signed every bill that reached his desk, often inviting the legislation's sponsors to signing ceremonies at which he lavishes praise upon their work.

Then, after the media and the lawmakers have left the White House, Bush quietly files ''signing statements" — official documents in which a president lays out his legal interpretation of a bill for the federal bureaucracy to follow when implementing the new law. The statements are recorded in the federal register.

In his signing statements, Bush has repeatedly asserted that the Constitution gives him the right to ignore numerous sections of the bills — sometimes including provisions that were the subject of negotiations with Congress in order to get lawmakers to pass the bill. He has appended such statements to more than one of every 10 bills he has signed.

''He agrees to a compromise with members of Congress, and all of them are there for a public bill-signing ceremony, but then he takes back those compromises — and more often than not, without the Congress or the press or the public knowing what has happened," said Christopher Kelley, a Miami University of Ohio political science professor who studies executive power.

Military link

Many of the laws Bush said he can bypass — including the torture ban — involve the military.

The Constitution grants Congress the power to create armies, to declare war, to make rules for captured enemies, and ''to make rules for the government and regulation of the land and naval forces." But, citing his role as commander in chief, Bush says he can ignore any act of Congress that seeks to regulate the military.

On at least four occasions while Bush has been president, Congress has passed laws forbidding US troops from engaging in combat in Colombia, where the US military is advising the government in its struggle against narcotics-funded Marxist rebels.

After signing each bill, Bush declared in his signing statement that he did not have to obey any of the Colombia restrictions because he is commander in chief.

Bush has also said he can bypass laws requiring him to tell Congress before diverting money from an authorized program in order to start a secret operation, such as the ''black sites" where suspected terrorists are secretly imprisoned.

Congress has also twice passed laws forbidding the military from using intelligence that was not ''lawfully collected," including any information on Americans that was gathered in violation of the Fourth Amendment's protections against unreasonable searches.

Congress first passed this provision in August 2004, when Bush's warrantless domestic spying program was still a secret, and passed it again after the program's existence was disclosed in December 2005.

On both occasions, Bush declared in signing statements that only he, as commander in chief, could decide whether such intelligence can be used by the military.

In October 2004, five months after the Abu Ghraib torture scandal in Iraq came to light, Congress passed a series of new rules and regulations for military prisons. Bush signed the provisions into law, then said he could ignore them all. One provision made clear that military lawyers can give their commanders independent advice on such issues as what would constitute torture. But Bush declared that military lawyers could not contradict his administration's lawyers.

Other provisions required the Pentagon to retrain military prison guards on the requirements for humane treatment of detainees under the Geneva Conventions, to perform background checks on civilian contractors in Iraq, and to ban such contractors from performing ''security, intelligence, law enforcement, and criminal justice functions." Bush reserved the right to ignore any of the requirements.

The new law also created the position of inspector general for Iraq. But Bush wrote in his signing statement that the inspector ''shall refrain" from investigating any intelligence or national security matter, or any crime the Pentagon says it prefers to investigate for itself.

Bush had placed similar limits on an inspector general position created by Congress in November 2003 for the initial stage of the US occupation of Iraq. The earlier law also empowered the inspector to notify Congress if a US official refused to cooperate. Bush said the inspector could not give any information to Congress without permission from the administration.

Oversight questioned

Many laws Bush has asserted he can bypass involve requirements to give information about government activity to congressional oversight committees.

In December 2004, Congress passed an intelligence bill requiring the Justice Department to tell them how often, and in what situations, the FBI was using special national security wiretaps on US soil. The law also required the Justice Department to give oversight committees copies of administration memos outlining any new interpretations of domestic-spying laws. And it contained 11 other requirements for reports about such issues as civil liberties, security clearances, border security, and counternarcotics efforts.

After signing the bill, Bush issued a signing statement saying he could withhold all the information sought by Congress.

Likewise, when Congress passed the law creating the Department of Homeland Security in 2002, it said oversight committees must be given information about vulnerabilities at chemical plants and the screening of checked bags at airports.

It also said Congress must be shown unaltered reports about problems with visa services prepared by a new immigration ombudsman. Bush asserted the right to withhold the information and alter the reports.

On several other occasions, Bush contended he could nullify laws creating ''whistle-blower" job protections for federal employees that would stop any attempt to fire them as punishment for telling a member of Congress about possible government wrongdoing.

When Congress passed a massive energy package in August, for example, it strengthened whistle-blower protections for employees at the Department of Energy and the Nuclear Regulatory Commission.

The provision was included because lawmakers feared that Bush appointees were intimidating nuclear specialists so they would not testify about safety issues related to a planned nuclear-waste repository at Yucca Mountain in Nevada — a facility the administration supported, but both Republicans and Democrats from Nevada opposed.

When Bush signed the energy bill, he issued a signing statement declaring that the executive branch could ignore the whistle-blower protections.

Bush's statement did more than send a threatening message to federal energy specialists inclined to raise concerns with Congress; it also raised the possibility that Bush would not feel bound to obey similar whistle-blower laws that were on the books before he became president. His domestic spying program, for example, violated a surveillance law enacted 23 years before he took office.

David Golove, a New York University law professor who specializes in executive-power issues, said Bush has cast a cloud over ''the whole idea that there is a rule of law," because no one can be certain of which laws Bush thinks are valid and which he thinks he can ignore.

''Where you have a president who is willing to declare vast quantities of the legislation that is passed during his term unconstitutional, it implies that he also thinks a very significant amount of the other laws that were already on the books before he became president are also unconstitutional," Golove said.

Defying Supreme Court

Bush has also challenged statutes in which Congress gave certain executive branch officials the power to act independently of the president. The Supreme Court has repeatedly endorsed the power of Congress to make such arrangements. For example, the court has upheld laws creating special prosecutors free of Justice Department oversight and insulating the board of the Federal Trade Commission from political interference.

Nonetheless, Bush has said in his signing statements that the Constitution lets him control any executive official, no matter what a statute passed by Congress might say.

In November 2002, for example, Congress, seeking to generate independent statistics about student performance, passed a law setting up an educational research institute to conduct studies and publish reports ''without the approval" of the Secretary of Education. Bush, however, decreed that the institute's director would be ''subject to the supervision and direction of the secretary of education."

Similarly, the Supreme Court has repeatedly upheld affirmative-action programs, as long as they do not include quotas. Most recently, in 2003, the court upheld a race-conscious university admissions program over the strong objections of Bush, who argued that such programs should be struck down as unconstitutional.

Yet despite the court's rulings, Bush has taken exception at least nine times to provisions that seek to ensure that minorities are represented among recipients of government jobs, contracts, and grants. Each time, he singled out the provisions, declaring that he would construe them ''in a manner consistent with" the Constitution's guarantee of ''equal protection" to all — which some legal scholars say amounts to an argument that the affirmative-action provisions represent reverse discrimination against whites.

Golove said that to the extent Bush is interpreting the Constitution in defiance of the Supreme Court's precedents, he threatens to ''overturn the existing structures of constitutional law."

A president who ignores the court, backed by a Congress that is unwilling to challenge him, Golove said, can make the Constitution simply ''disappear."

Common practice in '80s

Though Bush has gone further than any previous president, his actions are not unprecedented.

Since the early 19th century, American presidents have occasionally signed a large bill while declaring that they would not enforce a specific provision they believed was unconstitutional. On rare occasions, historians say, presidents also issued signing statements interpreting a law and explaining any concerns about it.

But it was not until the mid-1980s, midway through the tenure of President Reagan, that it became common for the president to issue signing statements. The change came about after then-Attorney General Edwin Meese decided that signing statements could be used to increase the power of the president.

When interpreting an ambiguous law, courts often look at the statute's legislative history, debate and testimony, to see what Congress intended it to mean. Meese realized that recording what the president thought the law meant in a signing statement might increase a president's influence over future court rulings.

Under Meese's direction in 1986, a young Justice Department lawyer named Samuel A. Alito Jr. wrote a strategy memo about signing statements. It came to light in late 2005, after Bush named Alito to the Supreme Court.

In the memo, Alito predicted that Congress would resent the president's attempt to grab some of its power by seizing ''the last word on questions of interpretation." He suggested that Reagan's legal team should ''concentrate on points of true ambiguity, rather than issuing interpretations that may seem to conflict with those of Congress."

Reagan's successors continued this practice. George H.W. Bush challenged 232 statutes over four years in office, and Bill Clinton objected to 140 laws over his eight years, according to Kelley, the Miami University of Ohio professor.

Many of the challenges involved longstanding legal ambiguities and points of conflict between the president and Congress.

Throughout the past two decades, for example, each president — including the current one — has objected to provisions requiring him to get permission from a congressional committee before taking action. The Supreme Court made clear in 1983 that only the full Congress can direct the executive branch to do things, but lawmakers have continued writing laws giving congressional committees such a role.

Still, Reagan, George H.W. Bush, and Clinton used the presidential veto instead of the signing statement if they had a serious problem with a bill, giving Congress a chance to override their decisions.

But the current President Bush has abandoned the veto entirely, as well as any semblance of the political caution that Alito counseled back in 1986. In just five years, Bush has challenged more than 750 new laws, by far a record for any president, while becoming the first president since Thomas Jefferson to stay so long in office without issuing a veto.

''What we haven't seen until this administration is the sheer number of objections that are being raised on every bill passed through the White House," said Kelley, who has studied presidential signing statements through history. ''That is what is staggering. The numbers are well out of the norm from any previous administration."

Exaggerated fears?

Some administration defenders say that concerns about Bush's signing statements are overblown. Bush's signing statements, they say, should be seen as little more than political chest-thumping by administration lawyers who are dedicated to protecting presidential prerogatives.

Defenders say the fact that Bush is reserving the right to disobey the laws does not necessarily mean he has gone on to disobey them.

Indeed, in some cases, the administration has ended up following laws that Bush said he could bypass. For example, citing his power to ''withhold information" in September 2002, Bush declared that he could ignore a law requiring the State Department to list the number of overseas deaths of US citizens in foreign countries. Nevertheless, the department has still put the list on its website.

Jack Goldsmith, a Harvard Law School professor who until last year oversaw the Justice Department's Office of Legal Counsel for the administration, said the statements do not change the law; they just let people know how the president is interpreting it.

''Nobody reads them," said Goldsmith. ''They have no significance. Nothing in the world changes by the publication of a signing statement. The statements merely serve as public notice about how the administration is interpreting the law. Criticism of this practice is surprising, since the usual complaint is that the administration is too secretive in its legal interpretations."

But Cooper, the Portland State University professor who has studied Bush's first-term signing statements, said the documents are being read closely by one key group of people: the bureaucrats who are charged with implementing new laws.

Lower-level officials will follow the president's instructions even when his understanding of a law conflicts with the clear intent of Congress, crafting policies that may endure long after Bush leaves office, Cooper said.

''Years down the road, people will not understand why the policy doesn't look like the legislation," he said.

And in many cases, critics contend, there is no way to know whether the administration is violating laws — or merely preserving the right to do so.

Many of the laws Bush has challenged involve national security, where it is almost impossible to verify what the government is doing. And since the disclosure of Bush's domestic spying program, many people have expressed alarm about his sweeping claims of the authority to violate laws.

In January, after the Globe first wrote about Bush's contention that he could disobey the torture ban, three Republicans who were the bill's principal sponsors in the Senate — John McCain of Arizona, John W. Warner of Virginia, and Lindsey O. Graham of South Carolina — all publicly rebuked the president.

''We believe the president understands Congress's intent in passing, by very large majorities, legislation governing the treatment of detainees," McCain and Warner said in a joint statement. ''The Congress declined when asked by administration officials to include a presidential waiver of the restrictions included in our legislation."

Added Graham: ''I do not believe that any political figure in the country has the ability to set aside any . . . law of armed conflict that we have adopted or treaties that we have ratified."

And in March, when the Globe first wrote about Bush's contention that he could ignore the oversight provisions of the Patriot Act, several Democrats lodged complaints.

Senator Patrick J. Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee, accused Bush of trying to ''cherry-pick the laws he decides he wants to follow."

And Representatives Jane Harman of California and John Conyers Jr. of Michigan — the ranking Democrats on the House Intelligence and Judiciary committees, respectively — sent a letter to Attorney General Alberto R. Gonzales demanding that Bush rescind his claim and abide by the law.

''Many members who supported the final law did so based upon the guarantee of additional reporting and oversight," they wrote. ''The administration cannot, after the fact, unilaterally repeal provisions of the law implementing such oversight. . . . Once the president signs a bill, he and all of us are bound by it."

Lack of court review

Such political fallout from Congress is likely to be the only check on Bush's claims, legal specialists said.

The courts have little chance of reviewing Bush's assertions, especially in the secret realm of national security matters.

''There can't be judicial review if nobody knows about it," said Neil Kinkopf, a Georgia State law professor who was a Justice Department official in the Clinton administration. ''And if they avoid judicial review, they avoid having their constitutional theories rebuked."

Without court involvement, only Congress can check a president who goes too far. But Bush's fellow Republicans control both chambers, and they have shown limited interest in launching the kind of oversight that could damage their party.

''The president is daring Congress to act against his positions, and they're not taking action because they don't want to appear to be too critical of the president, given that their own fortunes are tied to his because they are all Republicans," said Jack Beermann, a Boston University law professor. ''Oversight gets much reduced in a situation where the president and Congress are controlled by the same party."

Said Golove, the New York University law professor: ''Bush has essentially said that 'We're the executive branch and we're going to carry this law out as we please, and if Congress wants to impeach us, go ahead and try it.' "

Bruce Fein, a deputy attorney general in the Reagan administration, said the American system of government relies upon the leaders of each branch ''to exercise some self-restraint." But Bush has declared himself the sole judge of his own powers, he said, and then ruled for himself every time.

''This is an attempt by the president to have the final word on his own constitutional powers, which eliminates the checks and balances that keep the country a democracy," Fein said. ''There is no way for an independent judiciary to check his assertions of power, and Congress isn't doing it, either. So this is moving us toward an unlimited executive power."


Unitary Executive Trumps The Patriot Act

March 24, 2006

As if the Patriot Act was not bad enough.  President Bush, in a signing statement says he is not bound by the law, and will break it as he sees fit. The transcript of the signing statement can be found here. –DS

From The Boston Globe:

Bush shuns Patriot Act requirement
In addendum to law, he says oversight rules are not binding

WASHINGTON — When President Bush signed the reauthorization of the USA Patriot Act this month, he included an addendum saying that he did not feel obliged to obey requirements that he inform Congress about how the FBI was using the act’s expanded police powers.

The bill contained several oversight provisions intended to make sure the FBI did not abuse the special terrorism-related powers to search homes and secretly seize papers. The provisions require Justice Department officials to keep closer track of how often the FBI uses the new powers and in what type of situations. Under the law, the administration would have to provide the information to Congress by certain dates.

Bush signed the bill with fanfare at a White House ceremony March 9, calling it ”a piece of legislation that’s vital to win the war on terror and to protect the American people.” But after the reporters and guests had left, the White House quietly issued a ”signing statement,” an official document in which a president lays out his interpretation of a new law.

In the statement, Bush said that he did not consider himself bound to tell Congress how the Patriot Act powers were being used and that, despite the law’s requirements, he could withhold the information if he decided that disclosure would ”impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive’s constitutional duties.”

Bush wrote: ”The executive branch shall construe the provisions . . . that call for furnishing information to entities outside the executive branch . . . in a manner consistent with the president’s constitutional authority to supervise the unitary executive branch and to withhold information . . . ”

The statement represented the latest in a string of high-profile instances in which Bush has cited his constitutional authority to bypass a law.

After The New York Times disclosed in December that Bush had authorized the military to conduct electronic surveillance of Americans’ international phone calls and e-mails without obtaining warrants, as required by law, Bush said his wartime powers gave him the right to ignore the warrant law.

And when Congress passed a law forbidding the torture of any detainee in US custody, Bush signed the bill but issued a signing statement declaring that he could bypass the law if he believed using harsh interrogation techniques was necessary to protect national security.

Past presidents occasionally used such signing statements to describe their interpretations of laws, but Bush has expanded the practice. He has also been more assertive in claiming the authority to override provisions he thinks intrude on his power, legal scholars said.

Bush’s expansive claims of the power to bypass laws have provoked increased grumbling in Congress. Members of both parties have pointed out that the Constitution gives the legislative branch the power to write the laws and the executive branch the duty to ”faithfully execute” them.

Several senators have proposed bills to bring the warrantless surveillance program under the law. One Democrat, Senator Russell Feingold of Wisconsin, has gone so far as to propose censuring Bush, saying he has broken the wiretapping law.

Bush’s signing statement on the USA Patriot Act nearly went unnoticed.

Senator Patrick J. Leahy, Democrat of Vermont, inserted a statement into the record of the Senate Judiciary Committee objecting to Bush’s interpretation of the Patriot Act, but neither the signing statement nor Leahy’s objection received coverage from in the mainstream news media, Leahy’s office said.

Yesterday, Leahy said Bush’s assertion that he could ignore the new provisions of the Patriot Act — provisions that were the subject of intense negotiations in Congress — represented ”nothing short of a radical effort to manipulate the constitutional separation of powers and evade accountability and responsibility for following the law.”

”The president’s signing statements are not the law, and Congress should not allow them to be the last word,” Leahy said in a prepared statement. ”The president’s constitutional duty is to faithfully execute the laws as written by the Congress, not cherry-pick the laws he decides he wants to follow. It is our duty to ensure, by means of congressional oversight, that he does so.”

The White House dismissed Leahy’s concerns, saying Bush’s signing statement was simply ”very standard language” that is ”used consistently with provisions like these where legislation is requiring reports from the executive branch or where disclosure of information is going to be required.”

”The signing statement makes clear that the president will faithfully execute the law in a manner that is consistent with the Constitution,” said White House spokeswoman Dana Perino. ”The president has welcomed at least seven Inspector General reports on the Patriot Act since it was first passed, and there has not been one verified abuse of civil liberties using the Patriot Act.”

David Golove, a New York University law professor who specializes in executive power issues, said the statement may simply be ”bluster” and does not necessarily mean that the administration will conceal information about its use of the Patriot Act.

But, he said, the statement illustrates the administration’s ”mind-bogglingly expansive conception” of executive power, and its low regard for legislative power.

”On the one hand, they deny that Congress even has the authority to pass laws on these subjects like torture and eavesdropping, and in addition to that, they say that Congress is not even entitled to get information about anything to do with the war on terrorism,” Golove said.