Today's
Boston Globe has
an article by Charlie Savage that I think you should read. And I'd like you to read it in conjunction with
this diary by
Jeffrey Feldman of "Frameshop" fame, which diary is itself based on
this remarkable article from the
Wired magazine blog.
Why? Well, I was going to title this diary "On the Necessity of Impeachment -- Part IV," but there are just too many Daily Kos readers who are still so turned off by the mere thought of impeachment that they won't read a diary with the I word in the title. But these two articles together are, I think, something every American should read and consider. Especially if you're in the "focus on the elections and win back Congress" camp.
Here's why:
WASHINGTON -- President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution.
Among the laws Bush said he can ignore are military rules and regulations, affirmative-action provisions, requirements that Congress be told about immigration services problems, ''whistle-blower" protections for nuclear regulatory officials, and safeguards against political interference in federally funded research.
The Bush administration has quietly -- quietly! -- claimed the authority to disobey more than seven hundred and fifty laws enacted by Congress.
Win back the Congress? What Congress?
What exactly is it you hope to do with a Democratic Congress, given the fact that Bush ignores the existing Republican one at his convenience?
Oversight? Subpoena power?
Many laws Bush has asserted he can bypass involve requirements to give information about government activity to congressional oversight committees.
In December 2004, Congress passed an intelligence bill requiring the Justice Department to tell them how often, and in what situations, the FBI was using special national security wiretaps on US soil. The law also required the Justice Department to give oversight committees copies of administration memos outlining any new interpretations of domestic-spying laws. And it contained 11 other requirements for reports about such issues as civil liberties, security clearances, border security, and counternarcotics efforts.
After signing the bill, Bush issued a signing statement saying he could withhold all the information sought by Congress.
Likewise, when Congress passed the law creating the Department of Homeland Security in 2002, it said oversight committees must be given information about vulnerabilities at chemical plants and the screening of checked bags at airports.
It also said Congress must be shown unaltered reports about problems with visa services prepared by a new immigration ombudsman. Bush asserted the right to withhold the information and alter the reports.
On several other occasions, Bush contended he could nullify laws creating ''whistle-blower" job protections for federal employees that would stop any attempt to fire them as punishment for telling a member of Congress about possible government wrongdoing.
When Congress passed a massive energy package in August, for example, it strengthened whistle-blower protections for employees at the Department of Energy and the Nuclear Regulatory Commission.
The provision was included because lawmakers feared that Bush appointees were intimidating nuclear specialists so they would not testify about safety issues related to a planned nuclear-waste repository at Yucca Mountain in Nevada -- a facility the administration supported, but both Republicans and Democrats from Nevada opposed.
When Bush signed the energy bill, he issued a signing statement declaring that the executive branch could ignore the whistle-blower protections.
So what are you going to do? Sue? I don't think so:
SAN FRANCISCO, April 29 - The U.S. government has asked a federal judge to dismiss a lawsuit by a San Francisco civil liberties group against AT&T because it says the case could reveal military and state secrets.
The class-action suit by the group, the Electronic Frontier Foundation, on behalf of AT&T customers accuses the company of unlawful collaboration with the National Security Agency in its surveillance program to intercept telephone and e-mail communications between the United States and people linked to al Qaeda and affiliated organizations.
President George W. Bush authorized the intercepts following the September 11 attacks without court approval.
In a "Statement of Interest" filed on Friday, the government asked U.S. District Judge Vaughn Walker to throw out the suit, saying the government "cannot disclose any information that may be at issue in this case."
"The government intends to assert the military and state secrets privilege (that) permits the government to protect against the unauthorized disclosure in litigation of information that may harm national security interests," it said.
"In addition to asserting the state secrets privilege, the U.S. also intends to file a motion to intervene for the purpose of seeking dismissal of this case," the filing said.
The Bush administration is intervening in a private entity's lawsuit against a corporation, asserting a (previously) little-used "state secrets" precedent, saying not only that it seeks to block the release of supposedly "sensitive" material, but that the suit shouldn't be permitted to proceed in any capacity.
So, what about passing some strongly-worded and explicit legislation, whether on specific programs, or on the whole concept of presidential nullification?
Congress has also twice passed laws forbidding the military from using intelligence that was not ''lawfully collected," including any information on Americans that was gathered in violation of the Fourth Amendment's protections against unreasonable searches.
Congress first passed this provision in August 2004, when Bush's warrantless domestic spying program was still a secret, and passed it again after the program's existence was disclosed in December 2005.
On both occasions, Bush declared in signing statements that only he, as commander in chief, could decide whether such intelligence can be used by the military.
In October 2004, five months after the Abu Ghraib torture scandal in Iraq came to light, Congress passed a series of new rules and regulations for military prisons. Bush signed the provisions into law, then said he could ignore them all. One provision made clear that military lawyers can give their commanders independent advice on such issues as what would constitute torture. But Bush declared that military lawyers could not contradict his administration's lawyers.
Other provisions required the Pentagon to retrain military prison guards on the requirements for humane treatment of detainees under the Geneva Conventions, to perform background checks on civilian contractors in Iraq, and to ban such contractors from performing ''security, intelligence, law enforcement, and criminal justice functions." Bush reserved the right to ignore any of the requirements.
The new law also created the position of inspector general for Iraq. But Bush wrote in his signing statement that the inspector ''shall refrain" from investigating any intelligence or national security matter, or any crime the Pentagon says it prefers to investigate for itself.
Bush had placed similar limits on an inspector general position created by Congress in November 2003 for the initial stage of the US occupation of Iraq. The earlier law also empowered the inspector to notify Congress if a US official refused to cooperate. Bush said the inspector could not give any information to Congress without permission from the administration.
What about Arlen Specter's idea? Cutting off funding for NSA if there's no oversight compliance?
Bush has also said he can bypass laws requiring him to tell Congress before diverting money from an authorized program in order to start a secret operation, such as the ''black sites" where suspected terrorists are secretly imprisoned.
Whoopie-daisie!
Well, we all know about Bush's claims -- ridiculous as they are -- with respect to his supposed powers as "Commander in Chief." But that's as far as his claims go, right?
In November 2002, for example, Congress, seeking to generate independent statistics about student performance, passed a law setting up an educational research institute to conduct studies and publish reports ''without the approval" of the Secretary of Education. Bush, however, decreed that the institute's director would be ''subject to the supervision and direction of the secretary of education."
Similarly, the Supreme Court has repeatedly upheld affirmative-action programs, as long as they do not include quotas. Most recently, in 2003, the court upheld a race-conscious university admissions program over the strong objections of Bush, who argued that such programs should be struck down as unconstitutional.
Yet despite the court's rulings, Bush has taken exception at least nine times to provisions that seek to ensure that minorities are represented among recipients of government jobs, contracts, and grants. Each time, he singled out the provisions, declaring that he would construe them ''in a manner consistent with" the Constitution's guarantee of ''equal protection" to all -- which some legal scholars say amounts to an argument that the affirmative-action provisions represent reverse discrimination against whites.
[NYU law professor David] Golove said that to the extent Bush is interpreting the Constitution in defiance of the Supreme Court's precedents, he threatens to ''overturn the existing structures of constitutional law."
A president who ignores the court, backed by a Congress that is unwilling to challenge him, Golove said, can make the Constitution simply ''disappear."
Darn.
But really, maybe I'm overreacting. After all, last I checked there are still 31 flavors at Baskin-Robbins, and American Idol is still on the air, right? So the sky's not falling.
Some administration defenders say that concerns about Bush's signing statements are overblown. Bush's signing statements, they say, should be seen as little more than political chest-thumping by administration lawyers who are dedicated to protecting presidential prerogatives.
Defenders say the fact that Bush is reserving the right to disobey the laws does not necessarily mean he has gone on to disobey them.
Ah, so there you go. I mean, look at this:
Indeed, in some cases, the administration has ended up following laws that Bush said he could bypass. For example, citing his power to ''withhold information" in September 2002, Bush declared that he could ignore a law requiring the State Department to list the number of overseas deaths of US citizens in foreign countries. Nevertheless, the department has still put the list on its website.
He gave up the list. And I'm sure it's totally accurate, too. Right? Of course, if it wasn't, even if the statistics cited were blatent lies, it still wouldn't be illegal, because the administration had the "right" to withhold that information, anyway. They're just "withholding" it by substituting other "information" that isn't the real stuff. See? No harm, no foul, you Bush-haters.
Besides, we all know he's doing this stuff now. What's he really hiding from us, anyway?
On at least four occasions while Bush has been president, Congress has passed laws forbidding US troops from engaging in combat in Colombia, where the US military is advising the government in its struggle against narcotics-funded Marxist rebels.
After signing each bill, Bush declared in his signing statement that he did not have to obey any of the Colombia restrictions because he is commander in chief.
Dang. He's got the "right" to commit US troops to combat without Congressional approval. Even in the face of explicit Congressional prohibitions.
Rats. Pooh. Gosh.
Well, back to "concentrating on the elections," folks. After all, don't we want it to be our laws being ignored next year?
No Constitutional crisis to see here, folks. Move along.