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Largest U.S. Legal Group Challenges Bush Practice as Undermining Constitution

by Kenneth J. Theisen Friday, Aug. 11, 2006 at 12:11 PM

On January 24, 2006, the American Bar Association (ABA) issued a press release stating that, “Presidential signing statements that assert President Bush’s authority to disregard or decline to enforce laws adopted by Congress undermine the rule of law and our constitutional system of separation of powers…” The press release was publicizing a report by a blue-ribbon ABA task force which was created in June 2006 to examine the “changing role of presidential signing statements” under the Bush administration. On August 8, 2006, the ABA’s House of Delegates overwhelmingly approved the report by voting to call on President Bush and future presidents not to issue signing statements that claim the power to bypass laws, and it called on Congress to pass legislation to outlaw the practice.

The ABA declared that it “opposes, as contrary to the rule of law and our constitutional system of separation of powers, the misuse of presidential signing statements by claiming the authority…to disregard or decline to enforce all or part of a law the president has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress.” The ABA’s outgoing president, Michael Greco, stated, “The constitution says the president has two choices: either sign the bill or veto it. And if you sign it, you can’t have your hand behind your back with your fingers crossed.”

Despite the administration’s claim that the use of signing statements is “respectful” of Congress, it is clear that the Bush regime has abused the use of signing statements in a grab for more power at the expense of the legislative and judicial bodies. Signing statements have traditionally been used by presidents to elaborate the view of the president on the particular law that was being signed. According to the task force report, “[F]rom the inception of the Republic until 2000, Presidents produced fewer than 600 signing statements taking issue with the bills they signed. According to the most recent update, in his one-and-a-half terms so far, President George Walker Bush…has produced more than 800.” The report found that Bush’s signing statements are “ritualistic, mechanical and generally carry no citation of authority or detailed explanation.”

As one example it cited a law requiring the Attorney General to submit to Congress a report any time that official or any officer of the Department of Justice established or pursued a policy of refraining from enforcing a federal statute. The president in his signing statement insisted he had the authority to withhold such information whenever he deemed it necessary, thus defeating the very purpose of the law.

The task force also noted that Bush’s signing statements where he refused to carry out laws included, “Congressional requirements to report back to Congress on the use of the Patriot Act authority to secretly search homes and seize private papers, [and] the McCain amendment forbidding any U.S. officials to use torture or cruel and inhumane treatment on prisoners.”

Other examples of signing statements where Bush has indicated his refusal to comply with the law cited in the report include: “bills banning the use of U.S. troops in combat against rebels in Columbia; bills requiring reports to Congress when money from regular appropriations is diverted to secret operations; two bills forbidding the use of military intelligence of materials ‘not lawfully collected’ in violation of the Fourth Amendment; a post-Abu Ghraib bill mandating new regulations for military prisons in which military lawyers were permitted to advise commanders on the legality of certain kinds of treatment even if the Department of Justice lawyers did not agree; bills requiring the retraining of prison guards in humane treatment under the Geneva Conventions, requiring background checks for civilian contractors in Iraq and banning contractors from performing security, law enforcement, intelligence and criminal justice functions.”

He also stated his refusal to carry out the law that requires “that government scientists transmit their findings to Congress uncensored, along with a guarantee that whistleblower employees at the Department of Energy and the Nuclear Regulatory Commission will not be punished for providing information to Congress about safety issues in the planned nuclear waste repository at Yucca Mountain…” One may ask what the administration is trying to hide from Congress. But then secrecy within the Bush administration seems to be regular practice in order to hide it misdeeds. “The less the public knows the better” seems to be the slogan among Bush officials.

Immediate past ABA President Michael S. Greco in the press release regarding the report stated, “This report raises serious concerns crucial to the survival of our democracy. If left unchecked, the president’s practice does grave harm to the separation of powers doctrine, and the system of checks and balances, that have sustained our democracy for more than two centuries. Immediate action is required to address this threat to the Constitution and to the rule of law in our country.”

It is significant that the ABA which represents more than 400,000 lawyers in the U.S. has taken this step to rebuke the Bush regime’s regular practice of using signing statements to undermine the law. The ABA is far from a liberal organization. Yet the highest body of the ABA has recognized that the Bush administration has pushed the limits in its regular challenge to the separation of powers doctrine.

It is ironic though when its solution to the problem is to have Congress pass laws to prevent such abuse. If Congress actually summons the courage to pass such a law, I can see Bush attaching a signing statement to it that says he will not enforce this law. As can readily be seen by some of his past signing statements, he is not above doing so.

A brief look at the Bush regime’s justification for its use of signing statements, as well as a look at some of the signing statements that have been issued, is in order to see just how far Bush has tried to put himself above the law.

In June of this year, Deputy Assistant Attorney General Michelle Boardman testified before the Senate Judiciary Committee hearing on signing statements. She argued, “Respect for the legislative branch is not shown through veto. Respect for the legislative branch, when we have a well-crafted bill, the majority of which is constitutional, is shown when the president chooses to construe a particular statement in keeping with the Constitution, as opposed to defeating an entire bill that would serve the nation.” Of course Bush has shown such “respect” for Congress some 800 times.

Boardman further claimed that the president can bypass any law if it conflicts with the Constitution, even when “the Supreme Court has yet to rule on an issue, but the president has determined that a statutory law violates the Constitution.” In responding to this remarkable interpretation of presidential powers, Wisconsin Senator Russ Feingold accurately stated that the Bush administration has “assigned itself the sole responsibility for deciding which laws it will comply with, and in the process has taken upon itself the powers of all three branches of government.”

It is beyond frightening to learn that President Bush, who has bragged about not even reading the newspapers, feels he has the competency to determine when laws are constitutional and further will decide which laws to ignore and which to enforce. I doubt that he has ever read a full court opinion on any constitutional case. But then a man who claims to get directions from god must have extraordinary powers beyond the comprehension of the rest of us mere mortals.

An overview of some of the signing statements and their impact is even more frightening. Earlier in the year, Congress voted to outlaw torture in interrogations by U.S. agents. The Bush regime fought the passage of the law arguing that the president needed flexibility to waive the ban to prosecute the war on terrorism. Congress passed the law without such a waiver clause. When Bush signed the law, he issued a signing statement that claimed he had the power as commander-in-chief to waive the ban when necessary to protect national security. In effect he made the law unenforceable defeating the will of Congress. He has also attached signing statements challenging other bills related to torture. Apparently our president wants to use torture whenever he deems it necessary. And given the history and frequency of the use of torture under the regime at prisons operated by the U.S. around the world, it is apparent why the Bush regime would want to ignore these laws. (As I write this, it has come to light that the Bush administration has drafted amendments to the War Crimes Act that would retroactively protect policy makers from criminal charges for authorizing humiliating and degrading treatment of detainees.)

Bush also has attached signing statements to bills requiring reports to Congress when money from regular appropriations is diverted to secret operations. Bush considers such reports as undermining his commander-in-chief role and thus refuses to comply by making the required reports. The Constitution invested the “power of the purse” in Congress. But Bush has apparently re-interpreted this specific delegation in the Constitution granting Congress the power to determine how taxpayer money is spent with extremely negative consequences.

For instance Washington Post reporter Bob Woodward disclosed that in July of 2002 Bush diverted 0 million into Iraq invasion planning from appropriations that had nothing to do with Iraq without informing Congress that it was being used to plan an attack on Iraq. In fact the diversion took place at a time when the Bush regime was falsely claiming that it was seeking “diplomatic solutions to the problem of Iraq.” How much other money has been diverted and for what purposes is impossible to tell as it is clear Bush has no intention of making the required reports to Congress. Has money been diverted into Iran invasion planning? Maybe some has been used to finance the emergency shipments of weapons to Israel for the invasion of Lebanon. By ignoring this law, Bush can shuffle money around without being subject to any oversight.

It is clear from reviewing Bush’s extensive use of signing statements that the regime has an expansive view of presidential power. Any laws that place restrictions or requirements on the president’s role as commander-in-chief will surely have a signing statement attached to them. And unfortunately Bush sees his commander-in-chief role as having a lot of power given that he claims we are in a “war against terrorism.” This view allows a national security state which not only justifies wars throughout the world, but virtually unlimited spying and power here at home. Any actions necessary to “prosecute” the war can be justified under this view.

Vice-president Dick Cheney articulated the view of the administration in a December 2005 press conference which he staged to defend the regime’s warrantless wiretapping. He said, "Watergate and a lot of the things around Watergate and Vietnam during the 1970s, served, I think, to erode the authority I think the president needs to be effective, especially in the national security area. ... the president of the United States needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy. He then urged the reporters to read a 1987 minority report from the congressional Iran-Contra Committee when he said, “If you want a reference to an obscure text, go look at the minority views that were filed with the Iran-Contra Committee…I think [they] are very good in laying out a robust view of the president’s prerogatives with respect to the conduct of especially foreign policy and national security matters.”

Back then, Cheney was the ranking Republican on the joint committee looking into the Iran-Contra scandal. He was also one of the chief architects of the minority report issued by the committee. Instead of blaming those in the Reagan administration who broke the law, the report put the blame on Congress for passing laws that the administration felt obliged to flout in the interest of national security. The report argued that such laws were an unconstitutional intrusion of the president’s war powers. To quote the report, “Judgments about the Iran-Contra affair ultimately rest upon one’s views about the proper roles of Congress and the president in foreign policy…The fundamental law of the land is the Constitution. Unconstitutional statutes violate the rule of law every bit as much as do willful violations of constitutional statutes.” In the view of the Bush regime, the president is clearly vested with the power to decide which laws are constitutional and which infringe on his powers. Of course this virtually negates the role of Congress and the Supreme Court and creates an imperial presidency.

What really is at stake? The ABA has recognized that Bush’s abuse of signing statements “undermine the law” and as the past president of the ABA states, threatens “our democracy.” The position of the ABA is a positive development. But new laws as urged by the ABA will not prevent the horrors planned by the Bush regime. The regime has already shown its contempt for so many laws by openly violating them.

The only way to prevent an imperial presidency and country in which Bush, Cheney, Rumsfeld, Gonzales, Rice, Hadley, and a few others make all the decisions for the rest of the world is to remove the Bush regime from power as soon as possible. The U.S. is now waging wars or proxie wars in Iraq, Afghanistan, Lebanon and Palestine. The regime is planning war against Iran. Here at home the survivors of Katrina are still suffering. Countless other crimes of the regime could also be listed if space allowed. The abuse of signing statements is just part of the regime’s plans to operate a dictatorship which acts in the interest of a few at the expense of the vast majority. It is just one more reason why the world can’t wait one more day to drive the Bush regime from power now!

Kenneth J. Theisen is an organizer with The World Can’t Wait! Drive Out the Bush Regime!

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