Attacking Domestic Society I
By David Peterson at Jan 08, 2006
Sept. 2, 1986, agenda, for example, listed "challenges to executive power," including restrictions on "military power and related emergency powers" and "executive privilege." Also up for discussion that day was "judicial usurpation of power . . . against the executive branch." This included court interference in "military management" and, in an echo of the wiretapping case, rulings against civil lawsuit immunity for executive branch officials. The documents do not indicate what the working group decided to do about these issues. But the release also included a six-page memo written by Alito to the working group dated Feb. 6, 1986. Alito proposed a "pilot program" to have Reagan issue "signing statements" laying out the president&undefined;s interpretation of legislation he signs into law. When asked to interpret ambiguous laws, judges often look to its history, such as statements by Congress about the legislation. Alito said that putting the president&undefined;s interpretation of the law on record would "increase the power of the executive to shape the law."The same day, the editorial voice of the New York Times (“Alito&undefined;s Zeal for Presidential Power,” Dec. 24) complained that
In a second memo released yesterday, Judge Alito made another bald proposal for grabbing power for the president. He said that when the president signed bills into law, he should make a &undefined;&undefined;signing statement&undefined;&undefined; about what the law means. By doing so, Judge Alito hoped the president could shift courts&undefined; focus away from &undefined;&undefined;legislative intent&undefined;&undefined; -- a well-established part of interpreting the meaning of a statute -- toward what he called &undefined;&undefined;the President&undefined;s intent.&undefined;&undefined; In the memo, Judge Alito noted that one problem was the effect these signing statements would have on Congressional relations. They would &undefined;&undefined;not be warmly welcomed by Congress,&undefined;&undefined; he predicted, because of the &undefined;&undefined;novelty of the procedure&undefined;&undefined; and &undefined;&undefined;the potential increase of presidential power.&undefined;&undefined; These memos are part of a broader pattern of elevating the presidency above the other branches of government. In his judicial opinions, Judge Alito has shown a lack of respect for Congressional power -- notably when he voted to strike down Congress&undefined;s ban on machine guns as exceeding its constitutional authority. He has taken a cramped view of the Fourth Amendment and other constitutional provisions that limit executive power.And the Pittsburgh Post-Gazette (“Alito Memo on Wiretaps Likely To Draw Questioning,” Michael McGough, Dec. 24) reported that, “In a 1986 memo to a ‘working group' in the Justice Department, Mr. Alito suggested that the Reagan administration ‘make fuller used of presidential signing statements', in which the president would offer his own interpretation of a statute&undefined;s meaning. Such a practice would present the courts not only with legislative history, but ‘executive history' as well.” But these three newspapers were working in the aftermath of the revelations the prior Friday (Dec. 16) by both the New York Times and the Washington Post that the Bush regime had been employing the prodigious technological resources of the State and corporate sectors to engage in the warrantless surveillance of American citizens. The only real questions being (a) using which electronic media, (b) against how many of us, and (c) how often, and for how long? Since some time after the events of September 11, 2001, as the regime now acknowledges? Or some time earlier? As Noah Feldman raised these issues in today&undefined;s New York Times Magazine ( “Who can check the President?” Jan. 8), if the issue of the warrantless electronic surveillance of American citizens ever does manage to reach the U.S. Supreme Court,
there is good reason to suspect that both [Justice John] Roberts and [Samuel] Alito, should he be confirmed, will be operating under the influence of an expansive conception of presidential power. Both are products of a conservative movement that has provided the legal justifications for various aspects of the Bush revolution, and both held intensely political jobs in previous Republican administrations. Two decades ago, as a deputy assistant attorney general, Alito argued in a memo that the president should issue "signing statements" when approving legislation -- an effort to give the president influence over the courts&undefined; power to say what the laws mean. And Roberts, while serving as an appeals court judge, joined an opinion in Hamdan v. Rumsfeld upholding the military commissions being used to try Guantanamo detainees. The court held that the Geneva Convention does not, on its own, create a private right that can be litigated in the courts -- a position consistent with wide presidential authority but also conventional wisdom among United States courts dealing with treaty issues. (I submitted a friend-of the-court brief in that case on the right to confront witnesses and evidence.) Past experience does not, of course, necessarily determine a justice&undefined;s views on the court. But given their profiles and clues from their writings, it is in any case extremely unlikely that the combination of Roberts and Alito would be less deferential to presidential power than the combination of O&undefined;Connor and Rehnquist.In the meantime, on the very specific issue of torture, notice the following terse statement that was issued jointly by the Republican senators John Warner (Rep. - Va.) and John McCain (Rep. - Ariz.) on January 4 (Joint Statement on Presidential Signing Statement on Detainee Provisions, Jan. 4):
We believe the President understands Congress&undefined;s intent in passing, by very large majorities, legislation governing the treatment of detainees included in the 2006 Department of Defense Appropriations and Authorization bills. The Congress declined when asked by administration officials to include a presidential waiver of the restrictions included in our legislation. Our Committee intends through strict oversight to monitor the Administration&undefined;s implementation of the new law.Of course the Bush regime understands Congress&undefined; intent, both on the question of torture and on every other question currently between them. Our only hope is that Congress understands the Bush regime with equal clarity. Otherwise, it will be entirely up to us.
"President&undefined;s Statement on Signing of H.R. 2863, the &undefined;Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006&undefined;," White House Office of the Press Secretary, December 30, 2005 "President&undefined;s Statement on H.R. 3010, the &undefined;Department of Labor, Heath and Human Services, and Education, and Related Agencies Appropriations Act, 2006&undefined;," White House Office of the Press Secretary, December 30, 2005 Joint Statement on Presidential Signing Statement on Detainee Provisions, Senator John W. Warner (Rep. - Va.) and Senator John McCain (Rep. - Ariz.), January 4, 2006 Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information, Elizabeth B. Bazan and Jennifer K. Elsea, Congressional Research Service, January 5, 2006 Wiretap Study, Associated Press - Ipsos Public Affairs, January 6, 2006 "Alito Backed Immunity in Wiretap Case," Charlie Savage, Boston Globe, December 24, 2005 "Alito&undefined;s Zeal for Presidential Power," Editorial, New York Times, December 24, 2005 "Alito Memo on Wiretaps Likely To Draw Questioning," Michael McGough, Pittsburgh Post-Gazette, December 24, 2005 "Alito Once Made Case For Presidential Power," Christopher Lee, Washington Post, January 2, 2006 "Bush Could Bypass New Torture Ban," Charlie Savage, Boston Globe, January 4, 2006 (as posted to Truthout) "Three GOP Senators Blast Bush Bid To Bypass Torture Ban," Charlie Savage, Boston Globe, January 5, 2006 "Utahn seeks resolution against torture," Bob Bernick Jr., Deseret Morning News, January 5, 2006 "Levin Protests Move to Dismiss Detainee Petitions," Josh White, Washington Post, January 5, 2006 "Power unto himself in the White House," Meredith Oakley, Arkansas Democrat-Gazette, January 6, 2006 [See below] "Alito Foes Consider Presidential Powers the Defining Issue," Charlie Savage and Rick Klein, Boston Globe, January 6, 2006 "Bush statement appears to contradict anti-torture pledge," Edward Alden, Financial Times, January 6, 2006 [$$$$$ - See below] "McCain to Bush: &undefined;Don&undefined;t try it, pal&undefined;," Rosa Brooks, Los Angeles Times, January 6, 2006 "Equal Under the Law, But Bush Is More Equal," Editorial, The Roanoke Times, January 6, 2006 "In Alito Battle, Issues of Presidential Power Thrust to Forefront," David G. Savage, Los Angeles Times, January 8, "Our Presidential Era: Who can check the President?” Noah Feldman, New York Times Magazine, January 8, 2006 "Bush Puts His Spin on Law He Signs, Vexing Congress," Ron Hutcheson and James Kuhnhenn, Pittsburgh Post-Gazette, January 8, 2006 [See below] "Treason and the American President," ZNet, December 18, 2005 "Attacking Domestic Society," ZNet, January 8, 2006Postscript (January 15, 2006): From the ranks of better late than never---however timid and apologetic in their approach to the altar of the Imperial Presidency both the Washington Post and the New York Times may be:
"Unchecked Abuse," Editorial, Washington Post, January 11, 2006 "The Imperial Presidency at Work," Editorial, New York Times, January 15, 2006 (as posted to Truthout)Now. If only they had the nerve to invoke the same obligations erga omnes-, Chapter VII-, and "coalition of the willing"-type principles when it comes to the conduct of their favorite Power. I for one can think of a failed state in need of dramatic fixing. And a planet in need of liberation. But---in another 12 months time, perhaps?
Postscript (February 10, 2006): "Vice President Cheney and the Fight over &undefined;Inherent&undefined; Presidential Powers," John W. Dean, FindLaw.com, February 10, 2006
Postscript (April 30): More invaluable work by Charlie Savage:
"Bush Challenges Hundreds of Laws," Charlie Savage, Boston Globe, April 30, 2006
Postscript (May 11): For a frightening wake-up call of how expansive the state of the American tyranny really is:
"NSA Has Massive Database of Americans&undefined; Phone Calls," Leslie Cauley, USA Today, May 11, 2006
"The NSA&undefined;s domestic program," Leslie Cauley explains, "is far more expansive than what the White House has acknowledged."
Last year, Bush said he had authorized the NSA to eavesdrop - without warrants - on international calls and international e-mails of people suspected of having links to terrorists when one party to the communication is in the USA. Warrants have also not been used in the NSA&undefined;s efforts to create a national call database.
In defending the previously disclosed program, Bush insisted that the NSA was focused exclusively on international calls. "In other words," Bush explained, "one end of the communication must be outside the United States."
As a result, domestic call records - those of calls that originate and terminate within U.S. borders - were believed to be private.
Sources, however, say that is not the case. With access to records of billions of domestic calls, the NSA has gained a secret window into the communications habits of millions of Americans. Customers&undefined; names, street addresses and other personal information are not being handed over as part of NSA&undefined;s domestic program, the sources said. But the phone numbers the NSA collects can easily be cross-checked with other databases to obtain that information.
Every person involved in this criminal enterprise belongs behind bars.
FYA ("For your archives"): What I'll do from hereon is reproduce some of the material that I've surveyed above (with the exception of the Noah Feldman, which is simply too long) on the Bush regime&undefined;s use of the "signing statement" apparatus as a way of imposing an interpretation upon legislation that often conflicts with and even contradicts the letter and the spirit of the legislation. And since space limitations force me to be selective, I am emphasizing the regime&undefined;s December 30 proclamation that it will violate the the so-called "McCain Amendment" banning torture by U.S. personnel---along with as many as 14 other laws that he also signed that same day, at least by my count. The Boston Globe January 04, 2006 Wednesday SECTION: NATIONAL/FOREIGN; Pg. A1 HEADLINE: BUSH COULD BYPASS NEW TORTURE BAN BYLINE: BY CHARLIE SAVAGE, GLOBE STAFF WASHINGTON When President Bush last week signed the bill outlawing the torture of detainees, he quietly reserved the right to bypass the law under his powers as commander in chief. After approving the bill last Friday, Bush issued a "signing statement" an official document in which a president lays out his interpretation of a new law declaring that he will view the interrogation limits in the context of his broader powers to protect national security. This means Bush believes he can waive the restrictions, the White House and legal specialists said. "The executive branch shall construe [the law] in a manner consistent with the constitutional authority of the President . . . as Commander in Chief," Bush wrote, adding that this approach "will assist in achieving the shared objective of the Congress and the President . . . of protecting the American people from further terrorist attacks." Some legal specialists said yesterday that the president&undefined;s signing statement, which was posted on the White House website but had gone unnoticed over the New Year&undefined;s weekend, raises serious questions about whether he intends to follow the law. A senior administration official, who spoke to a Globe reporter about the statement on condition of anonymity because he is not an official spokesman, said the president intended to reserve the right to use harsher methods in special situations involving national security. "We are not going to ignore this law," the official said, noting that Bush, when signing laws, routinely issues signing statements saying he will construe them consistent with his own constitutional authority. "We consider it a valid statute. We consider ourselves bound by the prohibition on cruel, unusual, and degrading treatment." But, the official said, a situation could arise in which Bush may have to waive the law&undefined;s restrictions to carry out his responsibilities to protect national security. He cited as an example a "ticking time bomb" scenario, in which a detainee is believed to have information that could prevent a planned terrorist attack. "Of course the president has the obligation to follow this law, [but] he also has the obligation to defend and protect the country as the commander in chief, and he will have to square those two responsibilities in each case," the official added. "We are not expecting that those two responsibilities will come into conflict, but it&undefined;s possible that they will." David Golove, a New York University law professor who specializes in executive power issues, said that the signing statement means that Bush believes he can still authorize harsh interrogation tactics when he sees fit. "The signing statement is saying `I will only comply with this law when I want to, and if something arises in the war on terrorism where I think it&undefined;s important to torture or engage in cruel, inhuman, and degrading conduct, I have the authority to do so and nothing in this law is going to stop me,&undefined; " he said. "They don&undefined;t want to come out and say it directly because it doesn&undefined;t sound very nice, but it&undefined;s unmistakable to anyone who has been following what&undefined;s going on." Golove and other legal specialists compared the signing statement to Bush&undefined;s decision, revealed last month, to bypass a 1978 law forbidding domestic wiretapping without a warrant. Bush authorized the National Security Agency to eavesdrop on Americans&undefined; international phone calls and e-mails without a court order starting after the terrorist attacks of Sept. 11, 2001. The president and his aides argued that the Constitution gives the commander in chief the authority to bypass the 1978 law when necessary to protect national security. They also argued that Congress implicitly endorsed that power when it authorized the use of force against the perpetrators of the attacks. Legal academics and human rights organizations said Bush&undefined;s signing statement and his stance on the wiretapping law are part of a larger agenda that claims exclusive control of war-related matters for the executive branch and holds that any involvement by Congress or the courts should be minimal. Vice President Dick Cheney recently told reporters, "I believe in a strong, robust executive authority, and I think that the world we live in demands it. . . . I would argue that the actions that we&undefined;ve taken are totally appropriate and consistent with the constitutional authority of the president." Since the 2001 attacks, the administration has also asserted the power to bypass domestic and international laws in deciding how to detain prisoners captured in the Afghanistan war. It also has claimed the power to hold any US citizen Bush designates an "enemy combatant" without charges or access to an attorney. And in 2002, the administration drafted a secret legal memo holding that Bush could authorize interrogators to violate antitorture laws when necessary to protect national security. After the memo was leaked to the press, the administration eliminated the language from a subsequent version, but it never repudiated the idea that Bush could authorize officials to ignore a law. The issue heated up again in January 2005. Attorney General Alberto Gonzales disclosed during his confirmation hearing that the administration believed that antitorture laws and treaties did not restrict interrogators at overseas prisons because the Constitution does not apply abroad. In response, Senator John McCain, Republican of Arizona, filed an amendment to a Defense Department bill explicitly saying that that the cruel, inhuman, and degrading treatment of detainees in US custody is illegal regardless of where they are held. McCain&undefined;s office did not return calls seeking comment yesterday. The White House tried hard to kill the McCain amendment. Cheney lobbied Congress to exempt the CIA from any interrogation limits, and Bush threatened to veto the bill, arguing that the executive branch has exclusive authority over war policy. But after veto-proof majorities in both houses of Congress approved it, Bush called a press conference with McCain, praised the measure, and said he would accept it. Legal specialists said the president&undefined;s signing statement called into question his comments at the press conference. "The whole point of the McCain Amendment was to close every loophole," said Marty Lederman, a Georgetown University law professor who served in the Justice Department from 1997 to 2002. "The president has re-opened the loophole by asserting the constitutional authority to act in violation of the statute where it would assist in the war on terrorism." Elisa Massimino, Washington director for Human Rights Watch, called Bush&undefined;s signing statement an "in-your-face affront" to both McCain and to Congress. "The basic civics lesson that there are three co-equal branches of government that provide checks and balances on each other is being fundamentally rejected by this executive branch," she said. "Congress is trying to flex its muscle to provide those checks [on detainee abuse], and it&undefined;s being told through the signing statement that it&undefined;s impotent. It&undefined;s quite a radical view." The Boston Globe January 05, 2006 Thursday SECTION: NATIONAL/FOREIGN; Pg. A3 HEADLINE: 3 GOP SENATORS BLAST BUSH BID TO BYPASS TORTURE BAN BYLINE: BY CHARLIE SAVAGE, GLOBE STAFF WASHINGTON Three key Republican senators yesterday condemned President Bush&undefined;s assertion that his powers as commander in chief give him the authority to bypass a new law restricting the use of torture when interrogating detainees. John W. Warner Jr., a Virginia Republican who chairs the Senate Armed Services Committee, and Senator John McCain, an Arizona Republican, issued a joint statement rejecting Bush&undefined;s assertion that he can waive the restrictions on the use of cruel, inhuman, and degrading treatment against detainees to protect national security. "We believe the president understands Congress&undefined;s intent in passing, by very large majorities, legislation governing the treatment of detainees," the senators said. "The Congress declined when asked by administration officials to include a presidential waiver of the restrictions included in our legislation. Our committee intends through strict oversight to monitor the administration&undefined;s implementation of the new law." Separately, the third primary sponsor of the detainee treatment law, Senator Lindsey O. Graham, Republican of South Carolina, told the Globe in a phone interview that he agreed with everything McCain and Warner said "and would go a little bit further." "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," Graham said. "If we go down that road, it will cause great problems for our troops in future conflicts because [nothing] is to prevent other nations&undefined; leaders from doing the same." The White House did not return calls yesterday about the senators&undefined; statements. On Friday, in signing the ban on torture, Bush issued a "signing statement," saying he would interpret the restrictions in the context of his broader constitutional powers as commander in chief. A "signing statement" is an official document in which a president lays out his interpretation of a new law. A senior administration official later confirmed that the president believes the Constitution gives him the power to authorize interrogation techniques that go beyond the law to protect national security. But in enacting the law, Congress intended to close every loophole and impose an absolute ban on all forms of torture, no matter the circumstances, Graham said. David Golove, a New York University law professor who specializes in executive power issues, said the senators&undefined; statements "mean that the battle lines are drawn" for an escalating fight over the balance of power between the two branches of government. "The president is pointing to his commander in chief power, claiming that it somehow gives him the power to dispense with the law when he&undefined;s conducting war," Golove said. "The senators are saying: `Wait a minute, we&undefined;ve gone over this. This is a law Congress has passed by very large margins, and you are compelled and bound to comply with it.&undefined; " Elisa Massimino, Washington director of Human Rights First, said the senators&undefined; statement should send a clear warning to military and CIA interrogators that they would be subject to criminal prosecution if they abuse a detainee. "That power [to override the law] was explicitly sought by the White House, and it was considered and rejected by the Congress," she said. "And any US official who relies on legal advice from a government lawyer saying there is a presidential override of a law passed by Congress does so at their peril. Cruel inhuman and degrading treatment is illegal." But Golove said that it is politically unlikely that Attorney General Alberto R. Gonzales would prosecute an official for taking an action Bush ordered him to take. Still, he said, Congress has a number of tools for compelling the president to obey the law. Congress can withhold funds for programs. It can subpoena administration officials to testify under oath. It can pass stricter laws or block legislation Bush needs. In an extreme and politically unlikely scenario, it can impeach the president. Bush&undefined;s interpretation of another detainee-related provision in the new law sparked further friction yesterday with some lawmakers. The provision stripped courts of the jurisdiction to hear most lawsuits from detainees held at the US naval base at Guantanamo Bay, Cuba. Citing that provision, the administration said this week that it would ask courts to dismiss more than 180 Guantanamo lawsuits. Deseret Morning News (Salt Lake City) January 5, 2006 Thursday HEADLINE: Utahn seeks resolution against torture BYLINE: Bob Bernick Jr. Deseret Morning News With reports Wednesday that President Bush has signed an order giving him the power to approve torture of terrorist suspects in limited cases, a Utah lawmaker says it is more important than ever for the state Legislature to pass a resolution calling for a ban on torture as a national policy. Sen. Scott McCoy, D-Salt Lake, says he doesn&undefined;t see his resolution as a partisan issue, even though Utah Republicans are some of the strongest backers of the president in the country. Still, McCoy said he and other Utahns are "deeply concerned" over Bush&undefined;s torture position, which came to light after the president issued a "signed statement" clarifying that he may order torture despite a new federal law banning the practice. "This is just another instance of being disappointed by the president. It sounds like he signed the new law (with the anti-torture amendment in it) with his fingers crossed behind his back," McCoy said. While saying he likes and respects McCoy, Utah Senate Majority Leader Peter Knudson, R-Brigham City, said he doesn&undefined;t believe McCoy&undefined;s anti-torture resolution will pass when the 2006 Utah Legislature convenes in two weeks. Republicans hold two-thirds majorities in the Utah House and Senate. The Boston Globe reported Wednesday that last week when Bush signed a new law -- which contained an amendment by Arizona Republican Sen. John McCain outlawing torture -- the president also approved a "signing statement" that details what Bush calls his ability to bypass the law as part of his commander-in-chief powers. Said Knudson: "I believe the Legislature essentially favors allowing the president to function" under the new law with his full commander-in-chief powers. And if the president believes his actions are aimed at protecting the American people in any way necessary, "I support that," as will others, Knudson said. "I opened this bill file during the controversy when President Bush refused to accept the McCain amendment," said McCoy, who is an attorney. "It really bothered me" that Bush and Vice President Dick Cheney would advocate that there is any time or situation when torture of a suspect could be condoned. Bush and Cheney -- who advocated exempting the Central Intelligence Agency from the law -- ultimately gave in after facing bipartisan opposition in Congress and accepted the McCain amendment. After Congress acted and Bush signed the new law last week, civil libertarians believed Congress and the executive branch were locked into a no-torture agreement. But apparently Bush may override the new law -- as the statement posted on the White House Web site says -- "in achieving the shared objective of the Congress and the President . . . of protecting the American people from further terrorist attacks." McCoy said he&undefined;s basing his resolution on anti-torture language adopted by a number of national and international groups, including the Red Cross, Amnesty International, even an American librarian association. "I would think that the people of Utah, especially the Legislature, would be interested in standing against the practice of torture," said McCoy. "Sounds like now the McCain amendment is meaningless in the president&undefined;s mind -- he&undefined;ll do whatever he wants. "That&undefined;s a huge problem to me, and I hope a huge problem for others in this state," McCoy said. McCoy said he can&undefined;t understand how anyone can condone torture. "It is against not only what our country stands for, but against our religious, our Judeo-Christian, principles as well." U.S. Rep. Jim Matheson, D-Utah, in a meeting with the Deseret Morning News editorial board Wednesday on other issues, said he was surprised that Bush would take such a stand considering that the McCain anti-terror amendment passed overwhelmingly in both houses of Congress. "Personally, I think torture is morally wrong. Politically it&undefined;s a disaster," as the incidents in the Abu Ghraib prison in Iraq showed, Matheson said. "By a large, bipartisan majority, (Congress) said this should not be our policy." Some Utah legislative Democrats have already complained that members of the Republican majorities are introducing bills whose real intent is to force votes on controversial political issues, like abortion, during the 2006 election year. But McCoy denies his anti-torture resolution has any political aims -- like forcing legislative Republicans to vote to support their president while many Utahns oppose torture. Said Knudson: "I won&undefined;t judge (McCoy&undefined;s) motives. I like and appreciate him. He may feel very strongly about this. I respect that. But (McCoy) won&undefined;t get a lot of mileage" on his anti-torture resolution. Arkansas Democrat-Gazette (Little Rock) January 6, 2006 Friday SECTION: EDITORIAL HEADLINE: Power unto himself In the White House BYLINE: Meredith Oakley Too bad the Founders didn&undefined;t have more foresight. Had this been the case, they might have reserved more rights to the people. Instead, in their bumbling attempt to divvy up the power among elected and appointed authorities, they overlooked the people entirely. Not until several years later did they begrudge us a Bill of Rights, for all the good this 1791 addendum does us in the Year of Our George 2006. We take a lot of pride in the Declaration of Independence, forgetting-or, in this age of the educationally challenged, never realizing-that it&undefined;s pretty useless under the law. Ah, the law. There&undefined;s a topic for a Class A tirade if I ever saw one. But let us not digress. Of course, the Declaration&undefined;s grand and generous allusions to the great unwashed (which are only that-allusions-because this Founding document, like all the others, was written with only the elite male Founders in mind) still cause the heart to pound and the spirits to soar, to wit: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness. . . ." Have you ever considered the rest of that sentence? It&undefined;s a doozy, but read it anyway: " . . . That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive to these ends, it is the Right of the People to alter or to abolish it, and to institute a new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness." Obviously, the Declaration was more about shaking off the old than donning the new country-wise. It&undefined;s mostly one long rant against King George III, who, among his other transgressions, outlined therein, had "refused his Assent to Laws, the most wholesome and necessary for the public good"; "obstructed the Administration of Justice"; "erected a multitude of New Offices, and sent hither swarms of Officers to harass our People"; and "affected to render the Military independent of and superior to the Civil Power." He also was castigated "for depriving us, in many cases, of the benefits of Trial by Jury." Sounds oddly familiar, doesn&undefined;t it? Yes, sirree, ole George was next to being a power unto himself on Earth-from his mouth to God&undefined;s ear and vice versa, you might say. Thus you can understand why America&undefined;s Founders were a bit shortsighted when it came to fealty, envisioning a nation of laws, not of men. I don&undefined;t think it ever occurred to most of them that the free men of subsequent generations would relinquish their personal freedoms to another man in the name of ensuring domestic tranquility, providing a common defense, promoting the general welfare and securing the blessings of liberty. Note to John Hancock et al.: Gotcha! In the Year of Our George 2006, there&undefined;s a similar multifaceted controversy a&undefined;brewin&undefined;. The latest is George W. Bush&undefined;s use of the little-known presidential prerogative called the "signing statement." Overlooked by reporters during the holiday rush was the fact that last week, when he signed into law a bill outlawing the torture of political prisoners and other detainees of the American government, he attached a caveat to it. Under this caveat, or signing statement, he effectively declared that, as commander-in-chief, he is not bound by the new law restricting the use of torture in the interrogation of detainees, and said detainees have no right of appeal or, indeed, any right of access to the courts. As it turns out, the presidential signing statement, although its use increased in frequency under Ronald Reagan, dates back at least to James Monroe. The constitutional experts whose work I consulted via the ever-helpful Internet disagree about whether it has been explicitly tested in court, although several works allude to similar congressional committee statements to make their case for its constitutionality, although the fact that this presidential prerogative has been kicking around for almost 200 years must count for something. The chiefly scholarly works on the topic would make fun reading for a dark and stormy night, if you&undefined;re ever so inclined. As noted in yesterday&undefined;s newspapers, Bush&undefined;s response to the new law met with immediate howls of protest from, of all people, Republicans, which prompted one New York University professor who specializes in executive-power issues to note that "the battle lines are drawn" for what The Boston Globe called "an escalating fight over the balance of power between the two branches of government." Let&undefined;s hope, although with John Roberts at the helm of branch No. 3, I wouldn&undefined;t put too much money on the legislative branch&undefined;s chances. [Associate editor Meredith Oakley is editor of the Voices page.] The Boston Globe January 06, 2006 Friday SECTION: NATIONAL/FOREIGN; Pg. A1 HEADLINE: ALITO FOES CONSIDER PRESIDENTIAL POWERS THE DEFINING ISSUE BYLINE: BY CHARLIE SAVAGE AND RICK KLEIN, GLOBE STAFF WASHINGTON Senate Democrats began building a case yesterday against the Supreme Court nomination of Samuel A. Alito Jr. centering on his deference to executive power, setting the stage for next week&undefined;s confirmation hearings to become a battle over President Bush&undefined;s contentions that he can bypass torture and surveillance laws. In separate appearances yesterday, three key Democrats on the Judiciary Committee said they plan to link Alito&undefined;s past writings about executive power to an escalating dispute over Bush&undefined;s expansive view of his constitutional power as commander in chief. Senator Patrick J. Leahy, Democrat of Vermont, said Alito had argued for greater presidential powers as a young lawyer in the Reagan administration and had pushed for one of the legal mechanisms used by President Bush last week to assert the power to bypass congress- ionally approved legal limits on torture. Senator Charles E. Schumer, Democrat of New York, said he plans to quiz Alito about a speech the nominee delivered to the conservative Federalist Society in 2000. In his speech, Alito endorsed a legal theory that calls for stronger presidential control of government operations and a reduced role for Congress. Senator Edward M. Kennedy, Democrat of Massachusetts, cited a 1984 memo Alito wrote saying that an attorney general should be immune from a lawsuit over illegal wiretapping. Alito&undefined;s support for circumventing wiretap laws is significant in light of the disclosure that Bush has authorized wiretapping of Americans&undefined; international calls in spite of a 1978 law that required warrants for such surveillance, Kennedy said. "Is there any limit to executive power and authority that this nominee will recognize?" Kennedy said. "The executive power issue is front and center now. The American people are very sensitive to where this is all going and whether there is going to be accountability. They want to do what&undefined;s right in terms of their security, but they want" oversight. But defenders of Alito yesterday rejected any connection between the nominee&undefined;s past writings and the current disputes over Bush&undefined;s powers. They predicted that a strategy of focusing on executive power issues would fail to convince a majority of senators or the public that Alito should be rejected. Senator John Cornyn, a Texas Republican who serves on the Judiciary Committee, said Alito&undefined;s record is being mischaracterized by Democrats who have already decided that they will vote against his confirmation. "Impartial observers have noted that Judge Alito is not an ideologue," Cornyn said. "He&undefined;s not a revolutionary. He&undefined;s really a mainstream judge who applies neutral principles to the facts before him." And Ed Whelan, a former Justice Department official in the Bush administration who has been a leading Alito supporter, called the Democratic effort "incredibly strained." He said there is no real "linkage between anything Alito has said or done" and the Bush policies now in dispute. But Schumer said questions about the limits of presidential power could resonate across partisan lines at Alito&undefined;s hearings. "On these types of issues of executive power, you are going to find questions not just among more moderate Republicans, but also among very conservative Republicans," Schumer said. At least 10 Republican senators including Arlen Specter, Judiciary Committee chairman raised objections last month after the disclosure that Bush had authorized the wiretapping of Americans. And this week, after Bush contended that he could waive the torture ban to protect national security, the three GOP senators who sponsored the law including Judiciary Committee member Lindsey O. Graham of South Carolina condemned the president&undefined;s view of his powers. Bush asserted that he could waive the torture restrictions in a "signing statement," an official document recording a president&undefined;s legal interpretation of a new law. Bush had resisted the torture restrictions, but Congress approved them by such a large majority that he could not veto the bill. In the past, presidents rarely issued such legal statements when signing bills. But in 1986, when Alito was working for former attorney general Edwin Meese III, the future nominee proposed that President Reagan issue signing statements more frequently. Alito contended that courts sometimes research congressional statements and reports when trying to interpret the intent of an ambiguous law. Alito proposed that the more frequent issuing of signing statements by presidents would "increase the power of the executive to shape the law" by leaving a record of the president&undefined;s view. "Since the president&undefined;s approval is just as important as that of the House or Senate, it seems to follow that the president&undefined;s understanding of the bill should be just as important as that of Congress," wrote Alito. Leahy said yesterday that he plans to connect Alito&undefined;s 1986 memo to Bush&undefined;s use of a signing statement last week to assert an interpretation of the torture law that clashed with the intent of Congress. "It is disturbing that President Bush seeks authority to dictate the interpretation of laws written and passed by Congress," Leahy said. "Tellingly, this president&undefined;s current choice for the Supreme Court was instrumental in developing this strategy 20 years ago while serving in the Meese Justice Department. I will be interested to hear Judge Alito&undefined;s current thoughts on presidential signing statements as a device to expand presidential power and to minimize congressional intent." But Meese said in a telephone interview that there&undefined;s nothing wrong with the idea that presidents should leave a record of their understanding of new laws. In addition, he said, Alito was simply carrying out administration policy. "All Alito was doing as a subordinate member of the Department of Justice was . . . contributing his legal scholarship to the departmental policy at the time," Meese said. "He&undefined;s demonstrated as a judge that he&undefined;s going to follow the law and the Constitution and that he&undefined;s not going to be beholden either to the executive or to the legislative branch." Senate Democrats also sought to capitalize on current events during last fall&undefined;s confirmation hearings for Chief Justice John G. Roberts Jr., which occurred shortly after Hurricane Katrina exposed dire poverty along the Gulf Coast. That time, Democrats were unable to gain traction for their argument that Roberts&undefined;s privileged background meant he would be callous toward disadvantaged Americans. But this time, Kennedy said, Democrats can raise strong questions over "whether the average person is going to be able to get a fair shake" before Alito in a case challenging government power. "There&undefined;s a much greater record with regard to Alito than there was with regard to Roberts," Kennedy said. Financial Times (London, England) January 6, 2006 Friday London Edition 1 SECTION: THE AMERICAS & MIDDLE EAST; Pg. 6 HEADLINE: Bush statement appears to contradict anti-torture pledge BYLINE: By EDWARD ALDEN DATELINE: WASHINGTON President George W. Bush has asserted that he retains the right to authorise abuse of detainees under extreme circumstances, despite agreeing to legislation last month that explicitly prohibited such treatment. In a statement attached to Mr Bush&undefined;s signing of a defence spending bill last week, the White House said it would construe the bill&undefined;s ban on "cruel, inhumane and degrading" treatment of detainees "in a manner consistent with the constitutional authority of the president" and his powers as commander-in-chief. A senior administration official told the Boston Globe this week that while the administration intended to abide by the law, there might be extreme circumstances under which the president would have to waive the law to protect national security. The language attached to the bill marks the latest attempt by the White House to assert that under the US constitution, Congress has no authority to tie the president&undefined;s hands in the "war on terror". The administration is defending on the same grounds Mr Bush&undefined;s secret decision to authorise the National Security Agency to monitor communications inside the US, ignoring the legal requirements set by Congress nearly 30 years ago. The "signing statement" of December 30 is an even bolder claim, however, because it appears to contradict directly the agreement between the White House and Senator John McCain, Republican sponsor of the anti-torture legislation. In an Oval Office meeting with Mr McCain last month, the president stated that the agreement had achieved "a common objective, and that is to make it clear to the world that this government does not torture". Mr McCain and Senator John Warner, chairman of the Senate armed services committee, are challenging the White House interpretation of the law, which has reintroduced the ambiguity that the legislation sought to end. "We believe the president understands Congress&undefined;s intent in passing by very large majorities legislation governing the treatment of detainees," they said. "The Congress declined when asked by administration officials to include a presidential waiver of the restrictions included in our legislation." The legal force of such presidential signing statements is unclear. When Congress passes a law, it routinely attaches a statement explaining its interpretation of the law, which is later considered by the courts in determining how to enforce the law. Presidents since Jimmy Carter have taken to issuing on occasion similar statements intended to spell out the executive branch&undefined;s interpretation. Tom Malinowski, Washington director for Human Rights Watch, said the White House statement "is an effort to signal to the Central Intelligence Agency that it should still consider itself authorised to engage in cruel, inhumane and degrading treatment in extreme circumstances". He said that given Congress&undefined;s clear intent to abolish such abuse under all circumstances, CIA officers would be taking an enormous legal risk in relying the president&undefined;s assertion of inherent constitutional authority. Los Angeles Times January 6, 2006 Friday Home Edition SECTION: CALIFORNIA; Metro; Editorial Pages Desk; Part B; Pg. 11 HEADLINE: ROSA BROOKS; McCain to Bush: &undefined;Don&undefined;t try it, pal&undefined; BYLINE: ROSA BROOKS SO YOU THOUGHT all good things came from Santa&undefined;s workshop at the North Pole? Give the other pole some credit too. This week, a little good news came from Antarctica, where Sen. John McCain is getting an update on climate change from scientists. No, sorry, the good news has nothing to do with climate change. The ice cap is still melting, or breaking, or sinking, or whatever it is that it&undefined;s not supposed to be doing. The good news is that McCain made it clear Wednesday that if President Bush tries to circumvent congressional prohibitions on the inhumane treatment of prisoners, McCain -- one of the few American politicians with a functioning backbone -- doesn&undefined;t intend to let him get away with it. Last year, McCain introduced an amendment to the defense appropriations bill prohibiting U.S. personnel from subjecting prisoners anywhere in the world to cruel, inhumane or degrading treatment, and the Senate approved it, 90 to 9. Bush, who apparently thinks we can&undefined;t win the war on terror without becoming as inhumane as our enemies, initially threatened to veto any legislation containing McCain&undefined;s language. But the overwhelming support in Congress for the amendment made it effectively veto-proof, and after a protracted standoff, the president finally agreed to sign the bill in late December. The media announced this as a victory for McCain, his congressional supporters and the large majority of Americans who tell pollsters that torturing terror suspects is not acceptable. But the president still had a bit of mischief up his sleeve. When he signed the legislation, Bush issued a signing statement saying he planned to construe the McCain amendment&undefined;s absolute prohibition on cruel, inhumane and degrading treatment "in a manner consistent with the constitutional authority of the president to supervise the unitary executive branch and as commander in chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective ... of protecting the American people from further terrorist attacks." This may seem like so much legalistic gobbledygook, but it&undefined;s more sinister than that. It refers to the administration&undefined;s astonishing claim that whenever the president asserts that he&undefined;s acting in the interests of national security, he&undefined;s constitutionally permitted to violate any federal laws he finds inconvenient. Translated, Bush&undefined;s statement says, "I&undefined;ll sign a law prohibiting cruel, inhumane and degrading treatment, but because I&undefined;m president, I can ignore it." As blogger and Georgetown University law professor Marty Lederman notes, Bush&undefined;s signing statement was "the commander-in-chief version of &undefined;I had my fingers crossed.&undefined; " The legal effect of such presidential signing statements is controversial, but here, where the whole purpose of the statute is to create a loophole-free ban on a practice that the overwhelming majority in Congress finds abhorrent, it&undefined;s hard to see a court siding with the president. In the short term, though, only Congress can exercise a meaningful check on presidential power run amok. That&undefined;s why it was good news when McCain took a break from the glaciers to coordinate with Sen. John Warner on a statement reacting to Bush&undefined;s "I had my fingers crossed" maneuver: "We believe the president understands Congress&undefined; intent in passing by very large majorities legislation governing the treatment of detainees.... The Congress declined when asked by administration officials to include a presidential waiver of the restrictions included in our legislation. Our committee intends through strict oversight to monitor the administration&undefined;s implementation of the new law." It&undefined;s not ringing oratory. But if we again translate the dry legalism, it&undefined;s a masterpiece of understated menace: "Don&undefined;t try it, pal. We&undefined;re watching you." And McCain and Warner were promptly joined by another key Republican, Lindsey Graham, who added: "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. If we go down that road, it will cause great problems." It&undefined;s odd how the president, whose popularity remains abysmally low, seems determined to alienate the last remaining moderate Republicans. Spitting in the face of crucial Republican Senate leaders seems weirdly selfdestructive. After all, Congress may not be able to prevent the president from ignoring the McCain amendment, but using the power of the purse and other tools, it can sure make Bush&undefined;s life miserable for the next three years. The Roanoke Times (Virginia) January 6, 2006 Friday Metro Edition SECTION: EDITORIAL; Pg. B6 HEADLINE: EQUAL UNDER THE LAW, BUT BUSH IS MORE EQUAL President Bush seemed to give some ground and bow to the overwhelming will of Congress last week when he signed into law a bill outlawing the torture of U.S. detainees. Not quite, it turns out. Along with his signature, the president issued a "signing statement" asserting his right, as commander in chief, to bypass the law. An unnamed senior administration official assured a Boston Globe reporter, "We are not going to ignore this law." But the White House acknowledged the "signing statement" means Bush believes he can do so to protect national security. In other words, the law applies to the president only when the president says it applies. But that is true only in a dictatorship, which the United States is not. Such unchecked power in the hands of one person is precisely what the framers of the U.S. Constitution sought to avoid in establishing separate powers for the executive, legislative and judicial branches of government. The legislature, which is supposed to reflect closest the will of the people, makes the laws, and they apply to everyone. If Bush thinks the torture ban is a bad law, he should have vetoed it, as the Constitution allows -- and left it to Congress to decide whether to override his veto. Then he could have found out how firmly Americans believe that torturing one&undefined;s suspected enemies is a bad idea. The torture ban is hardly the first time the president has claimed the authority to put his own spin on a law. Bush routinely issues "signing statements," documents first put forward by the Reagan White House in hopes the courts would consider not just the legislative record but the administration&undefined;s views when interpreting a law&undefined;s intent. The author of that idea, The Washington Post reports, was Samuel Alito, then a Justice Department lawyer and now Bush&undefined;s nominee for the Supreme Court. Alito&undefined;s nomination demands close Senate scrutiny. The republic has a president who recognizes few limits on his power; it must beware, and resist, a judiciary that would affirm this latest grab. Pittsburgh Post-Gazette (Pennsylvania) January 8, 2006 Sunday REGION EDITION SECTION: LOCAL; Pg. A-12 HEADLINE: BUSH PUTS HIS SPIN ON LAWS HE SIGNS,VEXING CONGRESS BYLINE: Ron Hutcheson and James Kuhnhenn Knight Ridder Newspapers WASHINGTON -- President Bush agreed with great fanfare last month to accept a ban on torture, but he later quietly reserved the right to ignore it, even as he signed it into law. Acting from the seclusion of his Texas ranch at the start of New Year&undefined;s weekend, Mr. Bush said he would interpret the new law in keeping with his expansive view of presidential power. He did it by issuing a bill-signing statement -- a little-noticed device that has become a favorite tool of presidential power in the Bush White House. In fact, Mr. Bush has used signing statements to reject, revise or put his spin on more than 500 legislative provisions. Experts say he has been far more aggressive than any previous president in using the statements to claim sweeping executive power -- and not just on national security issues. "It&undefined;s nothing short of breath-taking," said Phillip Cooper, a professor of public administration at Portland State University. "In every case, the White House has interpreted presidential authority as broadly as possible, interpreted legislative authority as narrowly as possible, and pre-empted the judiciary." Signing statements don&undefined;t have the force of law, but they can influence judicial interpretations of a statute. They also send a powerful signal to executive branch agencies on how the White House wants them to implement new federal laws. In some cases, Mr. Bush bluntly informs Congress that he has no intention of carrying out provisions that he considers an unconstitutional encroachment on his authority. "They don&undefined;t like some of the things Congress has done so they assert the power to ignore it," said Martin Lederman, a visiting professor at the Georgetown University Law Center. "The categorical nature of their opposition is unprecedented and alarming." The White House says its authority stems from the Constitution, but dissenters say that view ignores the Constitution&undefined;s careful balance of powers between branches of government. "We know the textbook story of how government works. Essentially what this has done is attempt to upset that," said Christopher Kelley, a presidential scholar at Miami University in Oxford, Ohio, who generally shares Bush&undefined;s expansive view of executive authority. "These are directives to executive branch agencies saying that whenever something requires interpretation, you should interpret it the way the president wants you to." In the case of the torture ban, Mr. Bush said he would interpret the law "in a manner consistent with the constitutional authority of the president," with the goal of "protecting the American people from further terrorist attacks." Because Mr. Bush has already claimed broad powers in the war on terror -- including the right to bypass existing laws restricting domestic surveillance -- legal experts and some members of Congress interpreted the statement to mean that he would ignore the torture ban if he felt it would harm national security. Opponents of the ban say torture should not be ruled out in a case where abusive interrogation might prevent an imminent terrorist attack. White House spokeswoman Dana Perino said Bush was defending a principle, not signaling his intention to ignore the torture prohibition. Congress has clashed with Mr. Bush over signing statements before. In 2002, lawmakers from both parties vigorously objected when he offered a narrow interpretation of whistleblower protections in legislation on corporate fraud. After a series of angry letters from Congress to the White House, the administration backed down. But monitoring the implementation of new laws is a complicated task, especially when Mr. Bush is ambiguous about his intentions. Mr. Cooper said Mr. Bush&undefined;s assertion of his constitutional authority in dealing with the torture ban is typical of his approach. "It doesn&undefined;t explicitly say what he&undefined;s going to do or not do, but it gives him the authority to do whatever he wants to do," Mr. Cooper said. "The administration has clearly concluded that the Republican-dominated Congress is not prepared to force a confrontation on a lot of these issues." The roots of Mr. Bush&undefined;s approach go back to the Ford administration, when Dick Cheney, then serving as White House chief of staff, chafed at legislative limits placed on the executive branch in the aftermath of the Watergate scandal and other abuses of power by President Nixon. Now the vice president and his top aide, David Addington, are taking the lead in trying to tip the balance of power away from Congress and back to the president. President Ronald Reagan adopted the strategy and used signing statements to challenge 71 legislative provisions, according to Kelley&undefined;s tally. President George H.W. Bush challenged 146 laws; President Bill Clinton challenged 105. The current president has lodged more than 500 challenges so far. Some members of Congress from both parties also question the legal authority of presidential signing statements. "He can say whatever he likes, I don&undefined;t know if that has a whole lot of impact on the statute. Statutes are traditionally a matter of congressional intent," said Sen. Arlen Specter, R-Pa. In 2003, lawmakers tried to get a handle on Mr. Bush&undefined;s use of signing statements by passing a Justice Department spending bill that required the department to inform Congress whenever the administration decided to ignore a legislative provision on constitutional grounds. Mr. Bush signed the bill, but issued a statement asserting his right to ignore the notification requirement.