When the Boston Globe first
reported on Bush's "Signing Statement" that he attached to the Defense Appropriations bill, I thought WTF is this? I had missed Armando's post
On Torture, ScAlito and Presidential Signing Statements and his reference to Marty Lederman's "
So Much for the President's Assent to the McCain Amendment" post where he described how Bush reserved "the constitutional right to waterboard when it will "assist" in protecting the American people from terrorist attacks."
At issue was the Bush administration's assertion that laws and treaties did not restrict interrogaton methods that many people argued were tantamount to torture, because the Constitution does not apply abroad. Senator John McCain sponsored an amendment to the Defense Appropriations bill (Detainee Treatment Act of 2005 - H.R.2863) that explicitly required that cruel, inhuman, or degrading treatment of detainees in US custody is illegal regardless of where the detainees are held. Bush vigorously opposed the amendment and threatened to veto the bill. After the bill was passed in the House and Senate with veto-proof majorities, Bush apparently relented.
I say "apparently" because the Defense Bill Signing Statement attached to the bill said "... The executive branch shall construe Title X in Division A of the Act, relating to detainees, 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..."
The Globe reported that Elisa Massimino, Washington director for Human Rights Watch, called Bush's signing statement an "in-your-face affront" to both McCain and to Congress and that
"Congress is trying to flex its muscle to provide those checks [on detainee abuse], and it's being told through the signing statement that it's impotent. It's quite a radical view. 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."
Another quote by Marty Lederman, a Georgetown University law professor (referenced earlier) said "The whole point of the McCain Amendment was to close every loophole... 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."
I had been following the back-and-forth between Bush and McCain on the torture ban, and had felt some relief that cooler heads and the insistance of lawful conduct had prevailed. I recall being amazed and outraged that there was even an argument about whether people in the custody of our military should be subjected to treatment prohibited by the Geneva Convention.
As I began to grasp what was being reported on the signing statements, I thought "How can he do that?" Everyone knows how laws are enacted in this country. We are taught the legislative process in grammar school, and then again in Government and Economics. A person just cannot matriculate through public schools and not learn that the House and Senate pass a bill, then the President signs the bill, and then it becomes law. If the President doesn't agree with the bill, he can veto it.
My first question was: "Where is the outrage?" Where are all those self-rightous republicans who were screaming "Rule of Law" just a few years ago. What about those mindless droids who keep repeating the "Legislating from the Bench" mantra - where are they now? Who is going to confront our Activist President? It seemed obvious to me that Bush wanted to create legislation or pre-emptively interpret it, or both. Someone needs to tell him that Congress has the authority to create legislation and judges are required to interpret it.
Article I, Section 1 of the Constitution says:
"All legislative powers herein granted shall be vested in a Congress of the United States..."
Article III, Section 1 of the Constitution says:
"The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish..."
Article II, Section 3 of the Constitution says:
"...he [the President] shall take care that the laws be faithfully executed..."
Article I, Section 7 of the Constitution contains a very detailed description of the legislative process to be followed for enacting laws.
... Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. [...]
Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.
There is no way that a reasonable person can interpret Section 7 to include a provision for "Presidential Signing Statements." The framers were not verbose in drafting the Constitution. Each word was carefully selected. In some cases the language was precise and in some cases it was vague, but in all cases there was a stated purpose or intent. If the Founding Fathers had intended to prescribe provisions for "Presidential Signing Statements" they would have included verbiage to that effect in the document. The framers clearly wanted Congress to be responsible for drafting legislation. It should be clear enough to any person with average intelligence that Bush does not have any authority to create law. So how is he getting away with this?
In the Boston Globe article, a senior administration official was quoted as saying:
"We are not going to ignore this law... We consider it a valid statute. We consider ourselves bound by the prohibition on cruel, unusual, and degrading treatment... 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... We are not expecting that those two responsibilities will come into conflict, but it's possible that they will."
The official also noted that Bush routinely issues signing statements when signing laws saying he will construe them consistent with his own constitutional authority. This is when I began to understand the scope of what was being done.
Here we have a Bush administration official claiming that Bush has certain constitutional authority that allows him, acting as commander in chief, to violate laws enacted in the manner prescribed by the Constitution. Where does he get the "constitutional authority" to "ignore... the prohibition on cruel, unusual, and degrading treatment... ?" Returning to the Constituton:
Article I, Section 7.
... The Congress shall... make rules concerning captures on land and water... make rules for the government and regulation of the land and naval forces... [and] make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
Again, it seems obvious that Bush does not have the "constitutional authority" claimed by the administration official. The Constitution explicitly states that Congress has the authority to make rules concerning captures as well as regulation of land and naval forces, with a broad description of how and to whom the rules apply.
The Globe article also described other instances where the Bush administration claims that the Constitution gives the Commander in Chief the authority to ignore laws under the guise of protecting national security.
"... legal specialists compared the signing statement to Bush's decision, revealed last month, to bypass a 1978 law forbidding domestic wiretapping without a warrant."
"...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."
"... the administration drafted a secret legal memo holding that Bush could authorize interrogators to violate antitorture laws when necessary to protect national security."
Each of the instances described above are obviously violations of the law.
The issue of domestic wiretapping without a warrant appears to be a clear violation of 50 U.S.C. 26(i): "Notwithstanding any other law, the President... may authorize electronic surveillance without a court order... if the Attorney General certifies in writing under oath that... there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party."
As for bypassing "domestic and international laws," that seems to be covered by the United States Code (1 U.S.C. 2(112), which says
The United States Statutes at Large shall be legal evidence of laws, concurrent resolutions, treaties, international agreements other than treaties, proclamations by the President, and proposed or ratified amendments to the Constitution of the United States therein contained, in all the courts of the United States, the several States, and the Territories and insular possessions of the United States.
President Lincoln did suspend the writ of habeas corpus, but that was during a rebellion and Congress was not in session, so it could be reasonably be argued that the protection of public safety required that action. Upon cessation of the rebellion, habeas corpus and civil law were restored.
The issue of detaining "enemy combatants" who are citizens of the United States seems to have been settled by Ex Parte Milligan 71 U.S. 2 (4 Wall). In that case the Supreme Court ruled that where civil courts were functional, military trials were illegal, and of course habeas corpus is still in effect, at least for now.
But, all of the instances described above are merely criminal violations of the law. The issue of Presidential Signing Statements seems to be much more than just failing to "take care that the laws be faithfully executed."
Most people think of a coup d'état as "The sudden overthrow of a government by a usually small group of persons in or previously in positions of authority." Some people may be more sophisticated, and think of a coup d'état as a "sudden overthrow of a government through unconstitutional means by a part of the state establishment that mostly replaces just the top power figures. It is also an example of political engineering. It may or may not be violent in nature." I think that Edward Luttwak's remarks in his Coup d'État: A Practical Handbook is most approprite under our current circumstances: "A coup consists of the infiltration of a small but critical segment of the state apparatus, which is then used to displace the government from its control of the remainder."
What I am suggesting is that Bush's use of Presidential Signing Statements is entirely consistent with Luttwak's definition of a coup d'état. While historically signing statements have not had any standing in a court of law, no president has so blatently and publically stated that the executive branch of our constitutional government is not subject to laws enacted by Congress, even those laws enacted to specifically limit the executive branch.
Some may argue that Ronald Reagan similarly ignored the The Boland Amendment with the Iran-Contra Affair. But that was different. There is no proof that Reagan knew about the illegal Iran-Contra activities.
This situation is not like those detailed and discussed in "The Imperial Presidency,", written by Arthur M. Schlesinger, Jr. in which he examines the history and evolution of presidential power. His studies of Abraham Lincoln, Woodrow Wilson, and Franklin Roosevelt are a review of presidents who really were "War Presidents." His critical examination of Richard Nixon may be reasonably compared to what is happening in the current administration, but we really do not know just how much Congressional and Judicial authority Bush has usurped. We do know that it is more than a little.