American Bar Association Claims Bush Regime’s Use of Signing
Statements “undermine the rule of law and our constitutional system of checks
and balances.”
By Kenneth J. Theisen, 8/10/06
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 $700 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 proxy 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!