Boston (Globe) Legal: U.S. Constitution in jeopardy

[Guest guest]

The Green-Dog *

" The powers delegated by this constitution, are appropriated to the departments

to which they are respectively distributed: so that the legislative department

shall never exercise the powers vested in the executive or judicial;

nor the executive exercise the powers vested in the legislative or judicial;

nor the judicial exercise the powers vested in the legislative or executive

departments. "

James Madison

 

 

May 11, 2006 -- Boston (Globe) Legal: U.S. Constitution in jeopardy

 

Hello from the Green Dog --

 

Did you happen to catch the March 14, 2006 episode, " Stick It, " of the popular

ABC-Television show, " Boston Legal " ?

 

The storyline centered on one of the law firm's female secretaries, Melissa

Hughes, who gets arrested for tax evasion. She sent in her tax return without

payment and with a note attached telling the U.S. government to " stick it " in

protest against what she felt were White House violations of American principles

that her late grandfather fought for during World War Two. When a U.S. attorney

portrays the secretary as " un-American " during her trial, her defense attorney,

Alan Shore, tells the court the following in defense of her actions:

 

" When the weapons of mass destruction thing turned out to be not true, I

expected the American people to rise up, " Shore tells the jury. " Ha! They

didn't.

 

" Then, when the Abu Ghraib torture thing surfaced and it was revealed that

our government participated in rendition, a practice where we kidnap people and

turn them over to regimes who specialize in torture, I was sure then the

American people would be heard from. We stood mute.

 

" Then came the news that we jailed thousands of so-called terrorist suspects,

locked them up without the right to a trial or even the right to confront their

accusers. Certainly, we would never stand for that. We did.

 

" And now, it's been discovered the Executive Branch has been conducting

massive, illegal, domestic surveillance on its own citizens. You and me. And I

at least consoled myself that finally, finally the American people will have had

enough. Evidently, we haven't.

 

" In fact, if the people of this country have spoken, the message is 'we're

okay with it all.' Torture, warrantless search and seizure, illegal

wiretappings, prison without a fair trial - or any trial, war on false

pretenses.

 

" We, as a citizenry, are apparently not offended. There are no demonstrations

on college campuses. In fact, there's no clear indication that young people seem

to notice.

 

" Well, Melissa Hughes noticed. Now, you might think, instead of withholding

her taxes, she could have protested the old-fashioned way. Made a placard and

demonstrated at a Presidential or Vice-Presidential appearance, but we've lost

the right to that as well.

 

" The Secret Service can now declare free-speech zones to contain, control

and, in effect, criminalize protest. Stop for a second and try to fathom that.

At a presidential rally, parade or appearance, if you have on a supportive

Tee-shirt, you can be there. If you are wearing or carrying something in

protest, you can be removed.

 

" This, in the United States of America. This in the United States of America.

Is Melissa Hughes the only one embarrassed? " [2]

 

This Green Dog is about the same sort of White House violations of American

principles -- but the message about them was not carried by the TV show " Boston

Legal. " Instead, the message was carried recently by The Boston Globe. What

follows reports and comments on George Bush's taking actions that put the U.S.

Constitution in jeopardy. It's all pretty evident in what follows -- and what

follows must outrage any American who believes in the rule of law in our

country, who believes in the checks and balances defined by the Constitution,

who believes that no official, including the president, can bypass or ignore or

abrogate the laws of the land as made by Congress under the authority of the

Constitution.

 

Please forward this Green Dog to EVERYONE. Too many people are not aware of

what is reported and commented upon here.

 

And please be sure to delete the from/to/date/subject block when you forward

this Green Dog. Thanks.

 

The Green-Dog Democrat

 

[1] -- There's a great unofficial " Boston Legal " website at

http://www.boston-legal.org/ -- GDD

 

[2] -- Monologue transcript from Robert Parry's ConsortiumNews commentary at

http://www.consortiumnews.com/2006/050106.html. Transcript and video are also at

the above link -- GDD

 

 

 

Bush challenges hundreds of laws, cites powers of his office

 

By Charlie Savage

The Boston Globe

April 30, 2006

 

WASHINGTON -- George 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.

 

More Than Predecessors

 

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. "

 

Authority Without Precedent

 

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.

 

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 U.S. troops from engaging in combat in Colombia, where the U.S.

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.

 

Bush Denies Both Provisions

 

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.

 

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 U.S. 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.

 

Nullifying Whistle-Blower Laws

 

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 the 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 Ronald 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. [1]

 

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.

 

Congressional Oversight

 

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 George W. 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 U.S. citizens in foreign

countries. Nevertheless, the department has still put the list on its website.

 

President Interprets Law

 

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.

 

Republican Rebuke of Bush

 

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. " [2]

 

© Copyright 2006 Globe Newspaper Company.

 

http://tinyurl.com/epan2

 

[1] -- See the 1/15/06 Green Dog at

http://www.eurolegal.org/greendogdem/gdd0106/20060115gdd.htm -- GDD

 

[2] -- More on this point is in the 10/18/05 Green Dog at

http://www.eurolegal.org/greendogdem/gdd1005/20051018gdd.htm -- GDD

 

 

 

Examples of the president's signing statements

 

The Boston Globe

April 30, 2006

 

SINCE TAKING office in 2001, George Bush has issued signing statements on more

than 750 new laws, declaring that he has the power to set aside the laws when

they conflict with his legal interpretation of the Constitution. The federal

government is instructed to follow the statements when it enforces the laws.

Here are 10 examples and the dates Bush signed them:

 

March 9: Justice Department officials must give reports to Congress by certain

dates on how the FBI is using the USA Patriot Act to search homes and secretly

seize papers.

 

Bush's signing statement: The president can order Justice Department officials

to withhold any information from Congress if he decides it could impair national

security or executive branch operations.

 

Dec. 30, 2005: U.S. interrogators cannot torture prisoners or otherwise subject

them to cruel, inhuman, and degrading treatment.

 

Bush's signing statement: The president, as commander in chief, can waive the

torture ban if he decides that harsh interrogation techniques will assist in

preventing terrorist attacks.

 

Dec. 30: When requested, scientific information ''prepared by government

researchers and scientists shall be transmitted [to Congress] uncensored and

without delay. "

 

Bush's signing statement: The president can tell researchers to withhold any

information from Congress if he decides its disclosure could impair foreign

relations, national security, or the workings of the executive branch.

 

Aug. 8: The Department of Energy, the Nuclear Regulatory Commission and its

contractors may not fire or otherwise punish an employee whistle-blower who

tells Congress about possible wrongdoing.

 

Bush's signing statement: The president or his appointees will determine

whether employees of the Department of Energy and the Nuclear Regulatory

Commission can give information to Congress.

 

Dec. 23, 2004: Forbids U.S. troops in Colombia from participating in any combat

against rebels, except in cases of self-defense. Caps the number of US troops

allowed in Colombia at 800.

 

Bush's signing statement: Only the president, as commander in chief, can place

restrictions on the use of U.S. armed forces, so the executive branch will

construe the law ''as advisory in nature. "

 

Dec. 17: The new national intelligence director shall recruit and train women

and minorities to be spies, analysts, and translators in order to ensure

diversity in the intelligence community.

 

Bush's signing statement: The executive branch shall construe the law in a

manner consistent with a constitutional clause guaranteeing ''equal protection "

for all. (In 2003, the Bush administration argued against race-conscious

affirmative-action programs in a Supreme Court case. The court rejected Bush's

view.)

 

Oct. 29: Defense Department personnel are prohibited from interfering with the

ability of military lawyers to give independent legal advice to their

commanders.

 

Bush's signing statement: All military attorneys are bound to follow legal

conclusions reached by the administration's lawyers in the Justice Department

and the Pentagon when giving advice to their commanders.

 

Aug. 5: The military cannot add to its files any illegally gathered

intelligence, including information obtained about Americans in violation of the

Fourth Amendment's protection against unreasonable searches.

 

Bush's signing statement: Only the president, as commander in chief, can tell

the military whether or not it can use any specific piece of intelligence.

 

Nov. 6, 2003: US officials in Iraq cannot prevent an inspector general for the

Coalition Provisional Authority from carrying out any investigation. The

inspector general must tell Congress if officials refuse to cooperate with his

inquiries.

 

Bush's signing statement: The inspector general ''shall refrain " from

investigating anything involving sensitive plans, intelligence, national

security, or anything already being investigated by the Pentagon. The inspector

cannot tell Congress anything if the president decides that disclosing the

information would impair foreign relations, national security, or executive

branch operations.

 

Nov. 5, 2002: Creates an Institute of Education Sciences whose director may

conduct and publish research ''without the approval of the secretary [of

education] or any other office of the department. "

 

Bush's signing statement: The president has the power to control the actions of

all executive branch officials, so ''the director of the Institute of Education

Sciences shall [be] subject to the supervision and direction of the secretary of

education. "

 

SOURCE: Charlie Savage

 

© Copyright 2006 Globe Newspaper Company.

 

http://tinyurl.com/g5abw

 

 

 

Our monarch, above the law

 

By Scot Lehigh

The 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.

 

McCain and Warner's Rebuke

 

After Republican Senator John McCain succeeded in passing a ban on the torture

of detainees in US 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.

 

Little Interest in Compromise

 

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.

 

© Copyright 2006 Globe Newspaper Company.

 

http://tinyurl.com/fadco

 

 

 

Hearing vowed on Bush's powers

Republican senator questions bypassing of law

 

By Charlie Savage

The Boston Globe

May 3, 2006

 

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 George 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.

 

Numerous Rules and Regulations

 

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.

 

Signing Statement Negates Statute

 

''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. [1]

 

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.

 

Bound to Obey Administration

 

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. "

 

© Copyright 2006 Globe Newspaper Company.

 

http://tinyurl.com/kacez

 

[1] -- Feingold's resolution is posted at

http://feingold.senate.gov/~feingold/statements/06/03/2006313.html -- GDD

 

 

 

Postscript

 

" The conservative case for George Bush's exercise of presidential owers: Why it

fails to convince and ignores mainstream view on the Constitution " by John Dean,

Findlaw's Writ, May 5, 2006, is posted at

http://writ.news.findlaw.com/dean/20060505.html

 

 

 

PAY ATTENTION: A Eurolegal Services page has many articles and literally dozens

of links to thoughtful articles, essays, and commentaries on the constitutional

crisis that the U.S. faces because of Bush's " imperial-presidency " actions and

plans -- and on the growing opinion that Bush's imperiousness is impeachable.

It's at http://www.eurolegal.org/useur/prerogativeabuse.htm.

 

 

 

_________________

 

*The Green-Dog Democrat

 

This modest op-ed newsletter is sent by e-mail at no charge to those who

request it. Each of the average two or three newsletters weekly is designed to

call attention to well-written and -presented ideas and information that in

combination present a moderately progressive point of view about a current topic

or issue. Recipients are asked to forward it to other people to increase the

reach and influence of its contents.

 

WHAT IS A GREEN-DOG DEMOCRAT? This kind of Green-Dog Democrat is a cross

between a yellow-dog Democrat and a blue-dog Democrat -- a moderately

progressive, thinking Democrat who is liberal on some issues, moderate on some,

a little conservative on some, ambivalent on some. This Green-Dog Democrat is a

retired public relations/marketing communications practitioner who lives in

Kentucky. He is a product of small-town western Kentucky and the extended-family

influence of kind, honest, God-fearing, hard-working farmers, timber broker,

union coal miners, church custodian, store clerks, oil-field-equipment supplier,

carpenter, grocers, courthouse lawyers, auto mechanic, career soldier, school

teachers, union factory worker, watchmaker and jeweler, and housewives, some of

whom worked outside the home, some of whom didn't. Most were Democrats of

varying stripe, a few were liberal/moderate Republicans. Most liked to go

fishing, and most have gone to their final reward.

 

This Green-Dog Democrat is a grandfather, former U.S. Navy lieutenant --

Vietnam era -- and an admirer of (random order) Truman, Ike, Jefferson, FDR,

Teddy Roosevelt, Wilson, Lyndon Johnson, Lincoln, Hubert Humphrey, John Sherman

Cooper, Henry Clay, Adlai Stevenson, and Nelson Rockefeller. He thinks that Sam

Ervin, Martin Luther King Jr., Will Rogers, Edward R. Murrow, Red Skelton, Mark

Twain, and Henry Burgess (

http://www.wwiimemorial.com/default.asp?page=registry.asp & subpage=search -- type

in Burgess, Henry; choose Kentucky ) were great American heroes. He is secretly

(not to upset his wife of 41 years) in love with syndicated columnists Molly

Ivins, Georgie Anne Geyer, Arianna Huffington, and Maureen Dowd and web-site

commentator Sheila Samples, all of whom are splendid writers and wonderful

thinkers.

 

As a thinking American, this Green-Dog Democrat has real, serious problems with

the neo-John Birchers, neo-Gilded Agers, neo-Robber Barons, and new-world-order

ideologues who occupy the White House and much of Congress as heirs to the Newt

Gingrich revolution. He is absolutely certain that George W. Bush is not one IQ

point smarter than he was before September 11, 2001. ( " In America anyone can

become president. That's just one of the risks you take. " -- Adlai Stevenson)

 

NOTE: In accordance with Title 17 U.S.C. Section 107, the material in this

newsletter is distributed without profit or recompense to those who have

expressed an interest in receiving the included information for research and

educational purposes. The Green-Dog Democrat newsletter and The Green-Dog

Democrat personified have no affiliation whatsoever with the originators of the

articles or other information in this newsletter nor are The Green-Dog Democrat

newsletter or The Green-Dog Democrat personified endorsed or sponsored by the

originators.

 

" To be nobody-but-myself in a world which is doing its best, night and day, to

make me everybody else - means to fight the hardest battle which any human being

can fight, and never stop fighting. " -e.e. cummings-

 

 

 

n-text portions of this message have been removed]