On Sunday, Apr. 30, Charlie Savage of the Boston Globe published a well-researched 3,650-word article describing how "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."[1]  --  The revelation of the systematic use of "signing statements," which many had taken to be an exceptional practice when in fact the president has attached them to "more than one of every 10 bills he has signed," presented as an explanation for the fact that as president George W. Bush has not vetoed a single bill, has given the story legs, as well it should:  "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."  --  On Tuesday, Savage reported in the Globe that three leading Democrats had "blasted" Bush for his claim to be above the law, "saying that the president's legal theories are wrong and that he must obey the law."[2]  --  On Wednesday, he reported that Sen. Arlen Specter (R-PA), chair of the Senate Judiciary Committee, announced he will hold hearings in June on Bush's claim to be able to exempt himself from the law.[3]  --  Editorials have been many.  --  Scot Lehigh asked in the Globe on Tuesday: "Has George W. Bush come to believe he's king?"[4]  --  On Friday, the New York Times proclaimed:  "The founding fathers never conceived of anything like a signing statement."[5]  --  David Swanson, co-founder of After Downing Street, used stronger language:  "We do not any longer have an executive branch and a legislative branch, a president and a congress. We now have a dictator and a court of advisors."[6]  --  Swanson argued that Savage's revelations demonstrate the importance to the peace movement of putting impeachment of the president front and center.  --  UFPPC, which first called for impeachment of George W. Bush and Dick Cheney on Apr. 21, 2005, was on board this movement before it even began, calling for impeachment before the publication of the Downing Street memo....





By Charlie Savage

** President cites powers of his office **

Boston Globe
April 30, 2006

Original source: Boston Globe

[PHOTO CAPTION: BushÂ’s contention that he can ignore provisions of the Patriot Act, whose renewal he ushered last month, has drawn scrutiny.]

WASHINGTON -- 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 U.S. 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.


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 U.S. 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 U.S. occupation of Iraq. The earlier law also empowered the inspector to notify Congress if a U.S. official refused to cooperate. Bush said the inspector could not give any information to Congress without permission from the administration.


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.


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."


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."


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 U.S. 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."


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."





By Charlie Savage

** Say he cannot claim powers above the law **

Boston Globe
May 2, 2006

Original source: Boston Globe

WASHINGTON -- Three leading Democratic senators blasted President Bush yesterday for having claimed he has the authority to defy more than 750 statutes enacted since he took office, saying that the president's legal theories are wrong and that he must obey the law.

"We're a government of laws, not men," Senate minority leader Harry Reid, Democrat of Nevada, said in a statement. "It is not for George W. Bush to disregard the Constitution and decide that he is above the law."

Senator Patrick Leahy of Vermont, the ranking Democrat on the Judiciary Committee, accused Bush and Vice President Dick Cheney of attempting to concentrate ever more government power in their own hands.

"The Bush-Cheney administration has cultivated an insidious brand of unilateralism that regularly crosses into an arrogance of power," Leahy said in a statement. "The scope of the administration's assertions of power is stunning, and it is chilling."

Senator Edward M. Kennedy, Democrat of Massachusetts, also said that the Bush administration, abetted by "a compliant Republican Congress," was undermining the checks and balances that "guard against abuses of power by any single branch of government."

The opposition lawmakers were reacting to a report in Sunday's Boston Globe detailing the scope of Bush's assertions that he can ignore laws that conflict with his interpretation of the Constitution.

Bush is the first president since Thomas Jefferson to stay so long in office without vetoing a bill -- an act that gives the public notice that he has rejected a provision and gives Congress a chance to override his judgment. Instead, Bush has signed into law every bill that reached his desk, often in public ceremonies in which he praises the legislation and its sponsors.

Then, after the ceremony, Bush has quietly appended "signing statements" to more than one out of every 10 bills he has signed, laying out his legal interpretation for government officials to follow when implementing the new laws. The statements, which until recently attracted little attention in Congress or in the media, are filed without fanfare in the federal record.

In many cases, Bush has said he can ignore acts of Congress that seek to regulate the military and spy agencies, asserting the Constitution grants him that power as commander in chief. For example, he has claimed the power to waive a torture ban, provisions for oversight in the Patriot Act, limits on domestic wiretapping, and numerous regulations for the military.

Other statutes Bush has asserted that he can ignore have little to do with national security. They include some types of affirmative-action provisions, "whistle-blower" protections for nuclear regulatory officials, and safeguards against political interference in federally funded research.

The White House has declined to answer questions about Bush's legal claims in his signing statements. "We follow the practice that has been followed by previous administrations," spokeswoman Dana Perino said yesterday.

But legal scholars say Bush's assertions have gone far beyond that of any previous president in U.S. history. Bush has applied his signing statements to more than 750 new statutes. His numbers are by far a record for any U.S. president, scholars say.

Many scholars also contend that Bush is usurping some of the lawmaking powers of the Congress and Constitution-interpreting powers of the courts.

But, Leahy said, because Bush's fellow Republicans control Congress, Democrats have no power to call hearings on Bush's attempt to "pick and choose which laws he deems appropriate to follow."

"Just as disturbing as the president's use of press releases to announce which laws he will follow is the abject failure of the Republican-controlled Congress to act as a check against this executive power grab," Leahy said. "Until Republican leaders let Congress fulfill its oversight role, this White House will have no incentive to stop this abuse of power."





By Charlie Savage

** Senator questions bypassing of laws **

Boston Globe
May 3, 2006


--(Correction: Because of an editing error, a Page One story yesterday on a possible Senate hearing on President Bush's claims that he can bypass certain laws incorrectly attributed the quote, "How can we know whether the government will comply with the new laws that we passed?" to FBI director Robert Mueller. The quote was from Senator Russ Feingold, Democrat of Wisconsin. Also, because of an editing error, the story misstated the number of bills in which Bush has challenged provisions. He has claimed the authority to bypass more than 750 statutes, which were provisions contained in about 125 bills.)

WASHINGTON -- 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 challenged provisions in about 1 in 10 of the bills that he has signed, asserting the authority to ignore more than 750 statutes.

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."




By Scot Lehigh

Boston Globe
May 2, 2006


Has George W. Bush come to believe he's king?

That's the question that springs to mind upon reading Charlie Savage's front-page report in Sunday's Globe detailing the president's sotto voce assertion that he can disregard laws if he thinks they impinge on his constitutional powers.

That novel claim resides in the "signing statements" the administration issues outlining its legal interpretation of laws the president has signed -- interpretations that often run contrary to the statute's clear intent.

As Savage reports, Bush has registered hundreds of those reservations, adding them to statutes on subjects ranging from military rules and regulations to affirmative action language to congressionally mandated reporting requirements to protections Congress has passed for whistle-blowers to legal assurances against political meddling in government-funded research.

Bush's position reduces to this: The president needn't execute the laws as they are written and passed, but rather, has the right to implement -- or ignore -- them as he sees fit. (Were it not for our pesky written Constitution, perhaps George II could take his cue from Charles I, dismiss Congress, and rule -- ah, govern -- without any legislative interference whatsoever.)

Even members of the president's own party have balked at that claim.

After Republican Senator John McCain succeeded in passing a ban on the torture of detainees in U.S. custody, forcing it upon an unwilling White House, the president's signing statement made it clear he thought he could disregard the law if he deemed it necessary. That brought a pointed rebuke from McCain and fellow Republican Senator John Warner.

Other presidents have periodically appended signing statements to legislation, setting the objectionable precedent that Bush has followed here. But as Savage reports, this president has taken it to a new level, issuing such statements on more than 750 laws, or on more than 10 percent of the bills he has signed.

Rendering Bush's assertion more worrisome is this reality: Because so much of what this administration does is shrouded in secrecy, it's hard to know which laws are being followed and which are being ignored.

That makes it difficult for matters to ripen into a court challenge, notes Boston attorney Harvey Silverglate. "He is setting it up so that the people hurt by what this administration is doing are unable to get to court, because it is secret," Silverglate says.

We certainly do know that this president is ready to ignore even established laws if he finds them too cumbersome. Although the Foreign Intelligence Surveillance Act of 1978 prohibits warrantless eavesdropping on Americans, Bush has authorized such snooping. In trying to justify that, the administration has claimed that Congress's post-Sept. 11 resolution authorizing force against terrorists somehow imparted the authority for warrantless wiretapping.

That's farfetched, and members of the president's own party have said as much.

Congressional figures of both parties have signaled a willingness to consider the president's concerns with a wiretap-approval process that is already all but pro forma.

The White House, however, has displayed little interest in meaningful compromise.

Bush has a recourse if he doesn't agree with a newly passed law, of course: He can veto it. (So far he hasn't exercised that prerogative even once.)

But the president shouldn't be allowed to quietly disregard or reinterpret provisions of a law he dislikes, for in doing so, he is not protecting his own authority, but rather usurping the legitimate power of Congress. Further, his assumption that it is within his purview to decide whether a law is constitutional treads on ground that is the clear province of the Supreme Court.

Thus far, the Republican congressional leadership has been dismayingly compliant. But one Republican unwilling to let Bush interpret the law as he sees fit is Senator Arlen Specter, chairman of the Senate Judiciary Committee.

Specter, who is pushing legislation to have the closed-door FISA court rule on the constitutionality of Bush's wiretapping program, noted last week that he had filed -- but would not seek an immediate vote on -- an amendment to block funding for any domestic eavesdropping until the administration provides Congress with much more information.

It speaks volumes about the attitude of this White House that a member of the president's own party would have to make such a move to protect bedrock constitutional principles.

Yet it will probably take something much more dramatic than Specter's tentative threat to remind George W. Bush that he's president, and not king.

--Scot Lehigh's e-mail address is This email address is being protected from spambots. You need JavaScript enabled to view it..





New York Times
May 5, 2006


One of the abiding curiosities of the Bush administration is that after more than five years in office, the president has yet to issue a veto. No one since Thomas Jefferson has stayed in the White House this long without rejecting a single act of Congress. Some people attribute this to the Republicans' control of the House and the Senate, and others to Mr. Bush's reluctance to expend political capital on anything but tax cuts for the wealthy and the war in Iraq. Now, thanks to a recent article in the Boston Globe, we have a better answer.

President Bush doesn't bother with vetoes; he simply declares his intention not to enforce anything he dislikes. Charlie Savage at the Globe reported recently that Mr. Bush had issued more than 750 "presidential signing statements" declaring he wouldn't do what the laws required. Perhaps the most infamous was the one in which he stated that he did not really feel bound by the Congressional ban on the torture of prisoners.

In this area, as in so many others, Mr. Bush has decided not to take the open, forthright constitutional path. He signed some of the laws in question with great fanfare, then quietly registered his intention to ignore them. He placed his imperial vision of the presidency over the will of America's elected lawmakers. And as usual, the Republican majority in Congress simply looked the other way.

Many of the signing statements reject efforts to curb Mr. Bush's out-of-control sense of his powers in combating terrorism. In March, after frequent pious declarations of his commitment to protecting civil liberties, Mr. Bush issued a signing statement that said he would not obey a new law requiring the Justice Department to report on how the F.B.I. is using the Patriot Act to search homes and secretly seize papers if he decided that such reporting could impair national security or executive branch operations.

In another case, the president said he would not instruct the military to follow a law barring it from storing illegally obtained intelligence about Americans. Now we know, of course, that Mr. Bush had already authorized the National Security Agency, which is run by the Pentagon, to violate the law by eavesdropping on Americans' conversations and reading Americans' e-mail without getting warrants.

We know from this sort of bitter experience that the president is not simply expressing philosophical reservations about how a particular law may affect the war on terror. The signing statements are not even all about national security. Mr. Bush is not willing to enforce a law protecting employees of nuclear-related agencies if they report misdeeds to Congress. In another case, he said he would not turn over scientific information "uncensored and without delay" when Congress needed it. (Remember the altered environmental reports?)

Mr. Bush also demurred from following a law forbidding the Defense Department to censor the legal advice of military lawyers. (Remember the ones who objected to the torture-is-legal policy?) Instead, his signing statement said military lawyers are bound to agree with political appointees at the Justice Department and the Pentagon.

The founding fathers never conceived of anything like a signing statement. The idea was cooked up by Edwin Meese III, when he was the attorney general for Ronald Reagan, to expand presidential powers. He was helped by a young lawyer who was a true believer in the unitary presidency, a euphemism for an autocratic executive branch that ignores Congress and the courts. Unhappily, that lawyer, Samuel Alito Jr., is now on the Supreme Court.

Since the Reagan era, other presidents have issued signing statements to explain how they interpreted a law for the purpose of enforcing it, or to register narrow constitutional concerns. But none have done it as profligately as Mr. Bush. (His father issued about 232 in four years, and Bill Clinton 140 in eight years.) And none have used it so clearly to make the president the interpreter of a law's intent, instead of Congress, and the arbiter of constitutionality, instead of the courts.

Like many of Mr. Bush's other imperial excesses, this one serves no legitimate purpose. Congress is run by a solid and iron-fisted Republican majority. And there is actually a system for the president to object to a law: he vetoes it, and Congress then has a chance to override the veto with a two-thirds majority.

That process was good enough for 42 other presidents. But it has the disadvantage of leaving the chief executive bound by his oath of office to abide by the result. This president seems determined not to play by any rules other than the ones of his own making. And that includes the Constitution.


By David Swanson

After Downing Street
May 2, 2006


There are now 37 Congress Members backing an investigation into grounds for impeachment related to the war. Rep. Hilda Solis has joined the list of cosponsors of House Resolution 635, introduced by Congressman John Conyers. http://www.afterdowningstreet.org/635

This compares to 17 members backing Rep. Jim McGovern's bill to cut off funding for the war. http://www.afterdowningstreet.org/end

Why are 20 more members on one of these bills than on the other?

Well, public disapproval of Bush is now higher than it was of Nixon when he resigned, and higher than public disapproval of the war. http://www.afterdowningstreet.org/node/9872

But, more importantly, many citizens (myself included) no longer believe Congress has the power to affect anything other than by removing Bush and Cheney from office.

Here's a comment that was posted yesterday on www.afterdowningstreet.org beneath an article asking for pressure on Congress to oppose a war on Iran:

"Why would we think that Congress matters on this? Won't Mr. I'm-the-Decider go ahead and do whatever he (or more accurately Cheney) wants to, claiming that as Commander in Chief it's his decision and his alone? Even if Congress passes a strong resolution saying "Don't," he'll just issue another signing statement saying "I'll obey it only if I want to, you can't interfere with me so don't even try." In 2003 I was naive enough to think that he wouldn't invade Iraq without a U.N. resolution. Now we know how this Administration works. I've signed the petition anyway, but really I wonder if lobbying Congress (on anything other than impeachment) is pretty much a waste of time and energy." http://www.afterdowningstreet.org/391

Why do I bring this up? Because there remain those in the peace movement, and in every other movement, who believe they can accomplish their ends by pressuring Congress to do something other than impeaching Bush and Cheney.

If you are in the group of people who believe you can end a war, prevent a war, protect immigrants, raise wages, restore labor rights, stop global warming, or accomplish anything else by lobbying Congress, can you please read the Boston Globe's summary of Bush's habit of simply ignoring laws passed by Congress? http://www.afterdowningstreet.org/node/9771

We do not any longer have an executive branch and a legislative branch, a president and a congress. We now have a dictator and a court of advisors whose advice is usually designed to flatter the dictator and is generally ignored.

We're lobbying Hitler's legislature, asking for peace and justice. Peace and justice are good causes. There's nothing more important, and it's good to be focused on them. But at some point we must awake to the reality of what it will take to achieve them. The first necessary step is to peacefully and justly remove the current administration from power and restore to our government a system of checks and balances.

If this were not true, or were we willing to buy the defeatist prediction that impeachment is impossible (compared to what, ending the war? prosecuting presidential blow jobs?), it would still be the case that we can best end the war by demanding accountability for the lies that launched it.

In November, 2005, the Christian Science Monitor published an article with the headline "Why Iraq War Support Fell So Fast," which concluded: "John Mueller, an expert on war and public opinion at Ohio State University, links today's lower tolerance of casualties to a weaker public commitment to the cause than was felt during the two previous, cold war-era conflicts. The discounting of the main justifications for the Iraq war -- alleged weapons of mass destruction and support for international terrorism -- has left many Americans skeptical of the entire enterprise." In April, 2006, Sean Wilentz, published "The Worst President in History," where he cited Bush's lack of credibility as the chief reason for his low approval ratings, saying: "No previous president appears to have squandered the public's trust more than Bush has."

The Village Voice recently offered this advice to the peace movement: "Pick the right target: In a string of recent Gallup polls, around 60 percent of respondents said they disapprove of the way George W. Bush is handling Iraq. The dislike of Bush, however, is stronger than support for troop withdrawal. So instead of using the war to taint Bush, the peace movement might use the growing revulsion toward Bush to kill the war."

At many events in recent months, activists have expressed fatigue with regard to the ongoing accumulation of evidence, and have articulated a passionate and urgent desire to see Bush and Cheney held accountable for launching a fraudulent and criminal war. It is widely understood that if there is no accountability for this war, future wars of aggression become more likely. In addition, the current administration's disregard for the law and for the actions of Congress, combined with Bush's recent declaration that the war will last as long as he is in office, has given currency to the argument that the swiftest way to end the war may be to impeach and remove Bush and Cheney from office.

--DAVID SWANSON is a co-founder of After Downing Street, a writer and activist, and the Washington Director of Democrats.com. He is a board member of Progressive Democrats of America, and serves on the Executive Council of the Washington-Baltimore Newspaper Guild, TNG-CWA. He has worked as a newspaper reporter and as a communications director, with jobs including Press Secretary for Dennis Kucinich's 2004 presidential campaign, Media Coordinator for the International Labor Communications Association, and three years as Communications Coordinator for ACORN, the Association of Community Organizations for Reform Now. Swanson obtained a Master's degree in philosophy from the University of Virginia in 1997.