Last March, the U.S. Congress passed legislation
requiring Justice Department officials to give them reports by certain dates
on how the Federal Bureau of Investigation (FBI) is using the USA PATRIOT Act
to search homes and secretly seize papers.
But when President George W. Bush signed the measure into law, he added a "signing
statement." The statement said 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.
Late last year, Congress approved legislation declaring that U.S. interrogators
cannot torture prisoners or otherwise subject them to cruel, inhuman, and degrading
But President Bush's signing statement said the president, as commander in
chief, can waive the torture ban if he decides that harsh interrogation techniques
will assist in preventing terrorist attacks.
These are but two examples of more than 100 signing statements containing over
500 constitutional challenges President Bush has added to new laws passed by
the Congress many times more than any of his predecessors.
While he has never vetoed a law, many constitutional scholars say the president
is, in effect, exercising a "line-item veto" by giving himself authority
to waive parts of laws he doesn't like.
The practice has infuriated members of Congress in both parties because it
threatens to diminish their power. They consider it an assault on the notion
that the Constitution establishes the United States' three branches of government
legislative, judicial, and executive as co-equal.
Further fueling congressional anger is Bush's defense of his National Security
Agency (NSA) "domestic eavesdropping" program, in which the president
claimed he could ignore a 1978 law prohibiting wiretaps of U.S. citizens without
"probable cause" and a warrant issued by a court.
The NSA program was revealed by the New York Times last December. Since
then, newspapers have disclosed other secret programs, including amassing millions
of domestic phone call records and examining perhaps thousands of financial
transactions in an effort to track and interrupt possible terrorist activity.
A member of Bush's own party, Sen. Arlen Specter of Pennsylvania, chairman
of the Senate Judiciary Committee, opened hearings on the subject this week.
He said, "The real issue here is whether the president can cherry-pick
what he likes."
And the senior Democrat on the committee, Sen. Patrick Leahy of Vermont, said,
"The president hasn't vetoed any bills, but basically he has done a personal
veto. He has said which laws he will not follow and
put himself above
the law, even the same law he has signed."
The hearing is part of a continuing effort by many in Congress to reclaim authority
that they say the president has usurped as he has expanded the power of the
Bush claims that the constitution gives the executive branch of government
"inherent power" to do "whatever it takes" to protect the
people of the United States.
Testifying at the Judiciary Committee hearing on behalf of the Bush administration,
Michelle Boardman, deputy assistant attorney general in the Office of Legal
Counsel at the U.S. Department of Justice, said that signing statements serve
a "legitimate and important function" and are not an abuse of power.
"Congress should not fear signing statements, but welcome the openness
they provide," she said. "The president must execute the law faithfully,
but the Constitution is the highest law of the land. If the Constitution and
the law conflict, the president must choose," she said.
But many constitutional scholars disagree.
Among them is Barbara Olshansky, director of the Global Justice Initiative
at the Center for Constitutional Rights, a prominent advocacy group. She told
IPS, "I think it is hard evidence of [Bush's] continued aggressive arrogation
of power. It is a blatant attempt to expand power by pulling the rug out from
under Congress each time it passes a bill that he dislikes."
She added, "Many of the laws that Bush has decided to bypass or overwrite
by this method involve the military, where he once again invokes the idea that
as commander in chief he can ignore any law that seeks to regulate the military."
Another opposition view came from Prof. Edward Herman of the University of
Pennsylvania, who told IPS, "The brazenness of Bush's use of this practice
is remarkable. But even more remarkable is the fact that this de facto further
nullification of congressional authority fails to elicit sustained criticism
and outrage. It is part of a step-by-step abrogation of constitutional government,
and it is swallowed by the flag-wavers and normalized."
"We are in deep trouble," he added.
Signing statements are not new their use started with the fifth U.S.
president, James Monroe (1817-1825), and from that time they were used sparingly
and mostly for rhetorical purposes. Until Ronald Reagan became president in
1980, only 75 statements had been issued. Reagan and his successors, George
H. W. Bush and Bill Clinton, made 247 signing statements between them.
But President Bush has taken the practice to a new level, attracting criticism
both for the number of statements he has issued as well as for his apparent
attempts to nullify any legal restrictions on his actions
Democratic members of both the House of Representatives and the Senate are
viewing President Bush's signing statements as a dangerous overreach of presidential
power and a campaign issue for the congressional elections in November.
Last week House Democrats introduced a resolution requiring the president to
notify Congress if the president "makes a determination to ignore a duly
enacted provision of law."
And Senator Edward M. Kennedy, known as the "lion" of the Senate,
declared this week, "For far too long, Congress has stood by and watched
while President Bush has slowly expanded the unilateral powers of the presidency
at the expense of the rest of the government and the people."
The U.S. legal community is also concerned. Earlier this month, the American
Bar Association's board of directors formed a Task Force on Presidential Signing
Statements and the Separation of Powers Doctrine to review the use of signing
statements and whether or not this use is consistent with the U.S. Constitution.
Bush's signing statements have covered a wide variety of subjects, ranging
from the ability of military lawyers to give independent legal advice to their
commanders to timely transmission of government-funded scientific information
to Congress to rules for firing a government employee whistleblower who tells
Congress about possible wrongdoing.
But until President Bush's signing statement on the anti-torture legislation,
the subject went virtually unreported by the U.S. press. According to Phillip
Cooper, a Portland State University public administration professor who is an
authority on signing statements, "I think one of the important things here
is for reporters to apply their journalistic instincts to this story."
Cooper concludes that the Bush White House "has very effectively expanded
the scope and character of the signing statement not only to address specific
provisions of legislation that the White House wishes to nullify, but also in
an effort to significantly reposition and strengthen the powers of the presidency
relative to the Congress."
(Inter Press Service)