Sunday, February 3, 2008

Signing Statements

Since taking office, Bush has issued hundreds of signing statements that negate the laws he is signing - far more than all of the prior presidents combined. In these signing statements he declares that he is not subject to Congress or the judiciary. In his first term alone, he issued twenty-five of these per year. (For more on this, see Barbara Bowley's Chapter Nine ("The Campaign for Unfettered Power: Executive Supremacy, Secrecy and Surveillance") in Impeach the President: the Case Against Bush and Cheney.) After the 2006 mid-term elections he slowed down for a bit, but as it became clear that Congress would not refuse him anything, he resumed his aggressive assertions of unfettered executive power.

When I speak to audiences about Bush and Cheney's White House, I frequently make the point that as bad as you may think they are, when you look more closely and thoroughly at what they have been doing, you learn that they are much, much worse than you thought. The truth is shocking.

Even those who have been following what's going on continue to be "shocked and awed" by it. Indeed, the monstrousness of it makes it actually harder in some important ways for people in this country to react to because it is so out of keeping with what they are used to thinking about their government.

Even among those who know a great deal of history, and who are therefore not under many illusions about this government, are those who have a hard time understanding how momentous the steps being taken are. Many of them tend to think that this is just more of the same and that the fight to drive Bush and Cheney from office obscures the fundamental character of U.S. imperialism. They are, therefore, standing aside from the impeachment fight.

They fail to see that Bush and Cheney are the cutting edge of a rupture from past norms and that the legalization of torture, the stripping away of due process rights, the ubiquitous spying, the overt assertions that the executive is accountable to no one - not Congress, not the judiciary, not international courts, not the people - are the elements of a fascist state. If you sit by and let what Bush and Cheney are doing happen and you don't fight it and don't do everything you can to drive them from office, then you are allowing these new steps to become the new normal. That would be a fatal mistake.

The people who are now being tortured and indefinitely detained are the most vulnerable - Muslims among them - and the academics who they've fired and threatened include the ones who've taken the most out there stances (such as Ward Churchill). The people who are not yet being rounded up and brutalized are, in all too many numbers, oblivious to the fate of these. Naomi Wolf in her new book The End of America quotes a friend of hers who is otherwise compassionate as saying that "That's not my issue."

The refusal to stand up for those being killed, tortured, brutalized and fired is not only indefensible morally, but short-sighted. If a government can get away with doing terrible things to the most vulnerable, their next steps will be - and are - to progressively go after the less marginal: the people who now think that it's permissible for the executive to trample upon civil liberties and civil rights in the name of "national security."

Note in the following article that Hillary, Obama, and Romney have publicly declared that if elected they too will use signing statements. McCain has said he will not, but then, after the 2005 McCain Amendment that prohibited torturing detainees was passed by Congress and Bush signed it using a signing statement stating that he would not abide by it, McCain said nothing. He said nothing even though Bush had just obliterated the meaning of the McCain Amendment. He said nothing because he wanted to be president himself.

Bush asserts authority to bypass defense act

Calls restrictions unconstitutional

By Charlie Savage, Boston Globe [1]

WASHINGTON - President Bush this week declared that he has the power to bypass four laws, including a prohibition against using federal funds to establish permanent US military bases in Iraq, that Congress passed as part of a new defense bill.

Bush made the assertion in a signing statement that he issued late Monday after signing the National Defense Authorization Act for 2008. In the signing statement, Bush asserted that four sections of the bill unconstitutionally infringe on his powers, and so the executive branch is not bound to obey them.

"Provisions of the act . . . purport to impose requirements that could inhibit the president's ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to supervise the executive branch, and to execute his authority as commander in chief," Bush said. "The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President."

One section Bush targeted created a statute that forbids spending taxpayer money "to establish any military installation or base for the purpose of providing for the permanent stationing of United States Armed Forces in Iraq" or "to exercise United States control of the oil resources of Iraq."

The Bush administration is negotiating a long-term agreement with Iraqi Prime Minister Nouri al-Maliki. The agreement is to include the basing of US troops in Iraq after 2008, as well as security guarantees and other economic and political ties between the United States and Iraq.

The negotiations have drawn fire in part because the administration has said it does not intend to designate the compact as a "treaty," and so will not submit it to Congress for approval. Critics are also concerned Bush might lock the United States into a deal that would make it difficult for the next president to withdraw US troops from Iraq.

"Every time a senior administration official is asked about permanent US military bases in Iraq, they contend that it is not their intention to construct such facilities," said Senator Robert P. Casey Jr., Democrat of Pennsylvania, in a Senate speech yesterday. "Yet this signing statement issued by the president yesterday is the clearest signal yet that the administration wants to hold this option in reserve."

Several other congressional Democrats also took issue with the signing statement.

"I reject the notion in his signing statement that he can pick and choose which provisions of this law to execute," said Speaker Nancy Pelosi, Democrat of California. "His job, under the Constitution, is to faithfully execute the law - every part of it - and I expect him to do just that."

Bush's signing statement did not explain the specific basis for his objection to the prohibition on establishing permanent military bases in Iraq.

But last year, the White House told Congress that a similar provision in another bill "impermissibly infringes upon the president's constitutional authority to negotiate treaties and conduct the nation's foreign affairs."

Some legal specialists disagreed with the administration's legal theory.

"Congress clearly has the authority to enact this limitation of the expenditure of funds for permanent bases in Iraq," said Dawn Johnsen, an Indiana University law professor who was the head of the Justice Department's Office of Legal Counsel during the Clinton administration.

Bush's frequent use of signing statements to advance aggressive theories of executive power has been a hallmark of his presidency. Previous presidents occasionally used the device, but Bush has challenged more sections of bills than all his predecessors combined - among them, a ban on torture.

Bush signing statements prompted widespread controversy when his record came to light in 2006. After Democrats took over Congress in 2007, Bush initially issued fewer and less aggressive signing statements. But his new statement returned to the previous approach, observers said.

The signing statement also targeted a provision in the defense bill that strengthens protections for whistle-blowers working for companies that hold government contracts. The new law expands employees' ability to disclose wrongdoing without being fired, and it gives greater responsibility to federal inspectors general to investigate complaints of retaliation.

In addition, Bush targeted a section that requires intelligence agencies to turn over "any existing intelligence assessment, report, estimate or legal opinion" requested by the leaders of the House and Senate armed services committees within 45 days. If the president wants to assert executive privilege to deny the request, the law says, White House counsel must do so in writing.

Finally, Bush's signing statement raised constitutional questions about a section of the bill that established an independent, bipartisan "Commission on Wartime Contracting in Iraq and Afghanistan" to investigate allegations of waste, mismanagement, and excessive force by contractors.

The law requires the Pentagon to provide information to the panel "expeditiously" upon its request.

The signing statement did not make clear whether Bush is objecting to the creation of the commission because some of its members will be appointed by Congress or whether he is reserving the right to turn down its requests for information - or both.

Phillip Cooper, a political science professor at Portland State University, noted that Bush's statement does not clearly spell out the basis for any of his challenges. Cooper, who has been a pioneer in studying signing statements, said the vague language itself is a problem.

"It is very hard for Congress or the American people to figure out what is supposed to happen and what the implications of this are," Cooper said.

The White House did not respond to a Globe request to explain the objections in greater detail. But the Bush administration has repeatedly insisted that its use of signing statements has been both lawful and appropriate.

Still, the signing statement makes one thing clear, according to David Barron, a Harvard law professor. The White House, he said, is pressing forward with its effort to establish that the commander in chief can defy laws limiting his options in national security matters. The administration made similar assertions in recent disputes over warrantless wiretapping and interrogation methods, he said.

"What this shows is that they're continuing to assert the same extremely aggressive conception of the president's unilateral power to determine how and when US force will be used abroad, and that's a dramatic departure from the American constitutional tradition," said Barron, who was a Justice Department official in the 1990s.

In 2006, the American Bar Association condemned signing statements as "contrary to the rule of law and our constitutional separation of powers."

Among the presidential candidates, Mitt Romney, Hillary Clinton, and Barack Obama have said they would issue signing statements if elected. John McCain said he would not.

1 comment:

Test said...

very interesting articles. I'm compiling the original sources which show that candidates have (or not) pledged to relinquish the use of signing statements.

Could you direct me to those articles or quotes? Many thanks.