Signing statements don'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, Bush bluntly informs Congress that he has no intention of carrying out provisions that he considers an unconstitutional encroachment on his authority.
"They don't like some of the things Congress has done so they assert the power to ignore it," said Georgetown University Law Ctr visiting prof. Martin Lederman. "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's careful balance of powers between branches of govt.
"We know the textbook story of how govt works. Essentially what this has done is attempt to upset that," said Miami University presidential scholar Christopher Kelley in Oxford, Ohio, who generally shares Bush'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."

Other presidents have used similar tactics. For example, Jimmy Carter rebuffed congressional efforts to block his amnesty program for Vietnam-era draft dodgers. But experts say Bush has taken claims of presidential power to a whole new level.
In the case of the torture ban, 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 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.
"The president has said that we follow the law. Of course we will follow this law as well," she said.
Some members of Congress aren't so sure.

"He issues a signing statement that says he retains all of the inherent power that will permit him to go out and torture just the way they've gone ahead and tortured before," said Sen. Edward Kennedy D-MA. "That process is an arrogance of power."
Congress has clashed with Bush over signing statements before. In 2002, lawmakers from both parties vigorously objected when Bush 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.

Monitoring implementation of new laws is a complicated task, especially when Bush is ambiguous about his intentions. Cooper said Bush's assertion of his constitutional authority in dealing with the torture ban is typical of his approach.
"It doesn't explicitly say what he's going to do or not do, but it gives him the authority to do whatever he wants to do," 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."

Roots of Bush's approach are 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 top aide David Addington are taking the lead in trying to tip the balance of power away from Congress and back to the president. They may soon have an ally on the Supreme Court. As Reagan admin Justice Dept lawyer, Supreme Court nominee Samuel Alito wrote a 1986 memo outlining plans for expanded use of presidential signing statements.

Although Alito told his bosses that the aggressive use of assertive signing statements "would increase the power of the executive to shape the law," he acknowledged doubts about their legal significance. Reagan adopted the strategy and used signing statements to challenge 71 legislative provisions, according to Kelley's tally.
President George H.W. Bush challenged 146 laws; President Clinton challenged 105. The current president has lodged more than 500 challenges so far.
Bush and his legal advisers offer a variety of arguments to support their claims to power. In their view, the Constitution's directive that "the president shall be commander in chief" gives Bush virtually unlimited authority on issues related to national security.

They also rely heavily on the "unitary executive" theory to resist congressional directives to federal agencies. The theory rests on the Constitution's clause that says that "executive power shall be vested in a president."
Bush has cited the theory, which has not been fully tested in court, more than 100 times in his signing statements. Skeptics say the president and his advisers overlook the Constitution's checks and balances, noting that the Framers had a deep distrust of excessive executive power, having rebelled against a king.
The Constitution gives Congress the power to declare war, and shared power over executive spending, for example.

Lawmakers from both parties have questioned Bush's assertion of his wartime authority.
"If you take this to its logical conclusion, because during war the commander in chief has an obligation to protect us, any statute on the books could be summarily waived," said Sen. Lindsey Graham R-SC
"The Constitution says that if the president doesn't like it (a bill), he can veto it. And we have an opportunity to override the veto," Kennedy noted.
Some members of Congress from both parties also question the legal authority of presidential signing statements.
"He can say whatever he likes, I don't know if that has a whole lot of impact on the statute. Statutes are traditionally a matter of congressional intent," said Senate Judiciary Committee chair Sen. Arlen Specter, R-PA.

In 2003, lawmakers tried to get a handle on Bush's use of signing statements by passing a Justice Dept spending bill that required the department to inform Congress whenever the administration decided to ignore a legislative provision on constitutional grounds.
Bush signed the bill, but issued a statement asserting his right to ignore the notification requirement.

Problem with presidential signing statements
Their use and misuse by the Bush administration
1.13.06   John W. Dean FindLaw

Presidential signing statements are old news to anyone who has served in the White House counsel's office. Presidents have long used them to add their two cents when a law passed by Congress has provisions they do not like, yet they are not inclined to veto it. Nixon's statements, for example, often related to spending authorization laws which he felt were excessive and contrary to his fiscal policies.
… signing statements are to Bush & Cheney's presidency what steroids were to Arnold Schwarzenegger's body building. Like Schwarzenegger with his steroids, Bush does not deny using his signing statements; does not like talking about using them; and believes that they add muscle.
Like steroids, signing statements ultimately lead to serious trouble.

Signing statements leading expert Phillip Cooper's book, By Order of the President assesses the uses and abuses of signing statements by presidents Ronald Reagan, George H.W. Bush and Bill Clinton. Cooper has updated his material in a recent essay for the Presidential Studies Quarterly, to encompass the use of signing statements by now-President Bush as well.

By Cooper's count, George W. Bush issued 23 signing statements in 2001; 34 statements in 2002, raising 168 constitutional objections; 27 statements in 2003, raising 142 constitutional challenges, and 23 statements in 2004, raising 175 constitutional criticisms. In total, during his first term Bush raised a remarkable 505 constitutional challenges to various provisions of legislation that became law.
That number may be approaching 600 challenges by now. Yet Bush has not vetoed a single bill, notwithstanding all these claims, in his own signing statements, that they are unconstitutional insofar as they relate to him.

Rather than veto laws passed by Congress, Bush is using his signing statements to effectively nullify them as they relate to the executive branch. These statements, for him, function as directives to executive branch departments and agencies as to how they are to implement the relevant law.
President Bush and the attorneys advising him may also anticipate that the signing statements will help him if and when the relevant laws are construed in court. Federal courts, depending on their views of executive power, may deem such statements relevant to their interpretation of a given law.
After all, the law would not have passed had the President decided to veto it, so arguably, his view on what the law meant ought to (within reason) carry some weight for the court interpreting it.
This is the argument, anyway.

Bush has quietly been using these statements to bolster presidential powers. It is a calculated, systematic scheme that has gone largely unnoticed. though these statements are published in the Weekly Compilation of Presidential Documents, until recently, when President Bush's used a signing statement to attempt to nullify the recent, controversial McCain amendment regarding torture, which drew some media attention.

Generally, Bush's signing statements tend to be brief and very broad, and they seldom cite the authority on which the president is relying for his reading of the law. None has yet been tested in court. But they do appear to be bulking up the powers of the presidency. Here are a few examples:

If a new law requires the President to act in a certain manner, for instance, to report to Congress on how he is dealing with terrorism. Bush's signing statement will flat out reject the law, and state that he will construe the law "in a manner consistent with the President's constitutional authority to withhold information the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties."
Upshot is as if no law had been passed on the matter at all.


If a new law suggests even the slightest intrusion into the President's undefined "prerogative powers" under Article II of the Constitution, relating to national security, intelligence gathering, or law enforcement. Bush's signing statement will claim that notwithstanding the clear intent of Congress, which has used mandatory language, the provision will be considered as "advisory."
Upshot is as if Congress had acted as a mere advisor, with no more formal power than, say, Karl Rove, not as a coordinate and coequal branch of government, which in fact it is.

Bush is using signing statements like line item vetoes. The Supreme Court has held the line item vetoes are unconstitutional. In 1988, in Clinton v. New York, the High Court said a president had to veto an entire law.
Even Congress, with its Line Item Veto Act, could not permit him to veto provisions he might not like. The Court held the Line Item Veto Act unconstitutional in that it violated the Constitution's Presentment Clause, saying that after a bill has passed both Houses, but "before it become[s] a Law," it must be presented to the President, who "shall sign it" if he approves it, but "return it", veto the bill in its entirety, if he does not.

Following the Court's logic, and the spirit of the Presentment Clause, a president who finds part of a bill unconstitutional, ought to veto the entire bill, not sign it with reservations in a way that attempts to effectively veto part (and only part) of the bill.
The Presentment Clause makes clear that the veto power is to be used with respect to a bill in its entirety, not in part. Frequency and the audacity of Bush's use of signing statements are troubling. Enactments by Congress are presumed to be constitutional, as the Justice Dept has often reiterated.

For example, take what is close to boilerplate language from a govt brief (selected at random): "It is well-established that Congressional legislation is entitled to a strong presumption of constitutionality. See United States v. Morrison ('Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt.')."

Bush's use of signing statements thus potentially brings him into conflict with his own Justice Dept. The Justice Dept is responsible for defending the constitutionality of laws enacted by Congress. What is going to happen when the question at issue is the constitutionality of a provision the President has declared unconstitutional in a signing statement?
Does the President's signing statement overcome the presumption of constitutionality? I doubt it. Justice Dept will have a serious conflict of interest.

Should thus Congress establish its own non-partisan legal division, not unlike the Congressional Reference Service, to protect its interests, since the Justice Dept may have conflicts? It's something to think about.
These are just a few practical and constitutional problems that arise when a president acts as if there is his govt, and then there is the Congress' govt.

Signing statements often ignore the fact the only Congress can create all the departments and agencies of the Executive Branch, and only Congress can fund these operations.
  [ legally fund.
Iran Contra proved exec ops can be funded over multiple theatres of war for years merely by swapping guns for drugs & riding the laundery cycle in between. ]

The power to create and fund is also, by implication, the power to regulate and to oversee. Congress can, to some extent, direct how these agencies will function without infringing on presidential power.
  [ Incl the Defense Dept. ? ]

The immediate impact of signing statements, of course, is felt within the Executive Branch: As I noted, Bush's statements will likely have a direct influence on how that branch's agencies and departments interpret and enforce the law.
It is remarkable that Bush believes he can ignore a law, and protect himself, through a signing statement. Despite the McCain Amendment's clear anti-torture stance, the military may feel free to use torture anyway, based on the President's attempt to use a signing statement to wholly undercut the bill.

This kind of expansive use of a signing statement presents not only Presentment Clause problems, but also clashes with the Constitutional implication that a veto is the President's only and exclusive avenue to prevent a bill's becoming law. Congress wanted to impeach Nixon for impounding money he thought should not be spent. Telling Congress its laws do not apply makes Nixon's impounding look like cooperation with Congress, by comparison.

The longer term impact of signing statements is potentially grave, and is being ignored by the Bush administration. But it cannot be ignored forever. … Watergate was about abuse of power. Nixon, not unlike Bush, insisted on pushing the powers of the presidency to, and beyond, their limits. As Nixon headed into his second term with even grander plans than he'd had in the first term, the Congress became concerned, for good reason.

Bush, who has been pushing the envelope on presidential powers, is just beginning to learn what kind of Congressional blowback can result.
First, there are the leaks: People within the Executive branch become troubled by a president's overreaching. When Nixon adopted extreme measures, people within the administration began leaking. The same is now happening to Bush, for there was the leak about the use of torture. More recently, there was the leak as to the use of warrantless electronic surveillance on Americans.

Once the leaks start, they continue, and Congressional ire is not far behind. The overwhelming Congressional support for Senator John McCain's torture ban suggests, too, that Congress will not be happy if leaks begin to suggest the President, as his signing statement foreshadows, is already flouting the ban.
Bush's signing statements, now going over the top, are going to cause a Congressional reaction. If either the House or Senate GOP control is lost, and perhaps even if they don't, if the subject is torture or an egregious violation of civil liberties, then the Bush/Cheney administration will wish it had not issued all those signing statements. …

When President Bush signed the new law, sponsored by Senator McCain, restricting the use of torture when interrogating detainees, he also issued a Presidential signing statement. That statement asserted that his power as Commander-in-Chief gives him the authority to bypass the very law he had just signed.
This news came fast on the heels of Bush's shocking admission that, since 2002, he has repeatedly authorized the National Security Agency to conduct electronic surveillance without a warrant, in flagrant violation of applicable federal law.
Before that, Bush declared he had the unilateral authority to ignore the Geneva Conventions and to indefinitely detain without due process both immigrants and citizens as enemy combatants.

All these declarations echo the refrain Bush has been asserting from the outset of his presidency. That refrain is simple: Presidential power must be unilateral, and unchecked. But the most recent and blatant presidential intrusions on the law and Constitution supply the verse to that refrain.
They not only claim unilateral executive power, but also supply the train of the President's thinking, the texture of his motivations, and the root of his intentions. They make clear, for instance, that the phrase "unitary executive" is a code word for a doctrine that favors nearly unlimited executive power. Bush has used the doctrine in his signing statements to quietly expand presidential authority.

… Bush has used presidential "signing statements", statements issued by the President upon signing a bill into law, to expand his power. Each of his signing statements says that he will interpret the law in question "in a manner consistent with his constitutional authority to supervise the unitary executive branch."
Presidential signing statements have gotten very little media attention. They are, however, highly important documents that define how the President interprets the laws he signs. Presidents use such statements to protects the prerogative of their office and ensure control over the executive branch functions.

Presidents since Reagan have used such statements to create a kind of alternative legislative history. Attorney General Ed Meese explained in 1986 "To make sure that the President's own understanding of what's in a bill is the same … is given consideration at the time of statutory construction later on by a court, we have now arranged with West Publishing Company that the presidential statement on the signing of a bill will accompany the legislative history from Congress so that all can be available to the court for future construction of what that statute really means".
The alternative legislative history would, according to Miami University political science prof. Dr. Christopher S. Kelley at Oxford, Ohio, "contain certain policy or principles that the administration had lost in its negotiations" with Congress.

The Supreme Court has paid close attention to presidential signing statements. In 2 important decisions, Chadha and Bowsher decisions, the Court relied in part on president signing statements in interpreting laws. Other federal courts, sources show, have taken note of them too.
President Bush has used presidential signing statements more than any previous president. From President Monroe's administration (1817-25) to the Carter administration (1977-81), the executive branch issued a total of 75 signing statements to protect presidential prerogatives.
From Reagan's administration through Clinton's, the total number of signing statements ever issued, by all presidents, rose to a total 322.

In striking contrast to his predecessors, President Bush issued at least 435 signing statements in his first term alone. In these statements and in his executive orders, Bush used the term "unitary executive" 95 times.
Dr. Kelley notes that the unitary executive doctrine arose as the result of the twin circumstances of Vietnam and Watergate. Kelley asserts that "the faith and trust placed into the presidency was broken as a result of the lies of Vietnam and Watergate," which resulted in a congressional assault on presidential prerogatives.

For example, consider the Foreign Intelligence Surveillance Act (FISA) which Bush evaded when authorizing the NSA to tap without warrants, even those issued by the FISA court. FISA was enacted after the fall of Nixon with the precise intention of curbing unchecked executive branch surveillance.
Nixon's improper use of domestic surveillance was included in Article 2 paragraph (2) of the impeachment articles against him.

According to Kelley, these congressional limits on the presidency, in turn, led "some very creative people" in the White House and Justice Dept's Office of Legal Counsel (OLC) to fight back, in an attempt to foil or blunt these limits. In their view, these laws were legislative attempts to strip the president of his rightful powers.
Prominent among those in the movement to preserve presidential power and champion the unitary executive doctrine were the founding members of the Federalist Society, nearly all of whom worked in the Nixon, Ford, and Reagan White Houses.

The unitary executive doctrine arises out of a theory called "departmentalism," or "coordinate construction." According to legal scholars Christopher Yoo, Steven Calabresi, and Anthony Colangelo, the coordinate construction approach "holds that all 3 branches of the federal govt have the power and duty to interpret the Constitution." According to this theory, the president may (and indeed, must) interpret laws, equally as much as the courts.
The coordinate construction theory counters the long-standing notion of "judicial supremacy," articulated by Supreme Court Chief Justice John Marshall in 1803, in the famous case of Marbury v. Madison, which held that the Court is the final arbiter of what is and is not the law. Marshall famously wrote there: "It is emphatically the province and duty of the judicial department to say what the law is."

Of course, the President has a duty not to undermine his own office, as University of Miami law professor A. Michael Froomkin notes. And, as Kelley points out, the President is bound by his oath of office and the "Take Care clause" to preserve, protect, and defend the Constitution and to "take care" that the laws are faithfully executed.
Those duties require, in turn, that the President interpret what is, and is not constitutional, at least when overseeing the actions of executive agencies.

… Bush's recent actions … interprets the coordinate construction approach extremely aggressively. … license to overrule and bypass Congress or the courts, based on his own interpretations of the Constitution, even where that violates long-established laws and treaties, counters recent legislation that he has himself signed, or (as shown by recent developments in the Padilla case) involves offering a federal court contradictory justifications for a detention.
This is a form of presidential rebellion against Congress and the courts, and possibly a violation of President Bush's oath of office, as well. … that oath means that the President must uphold the Constitution only as he construes it, and not as the federal courts do?
Can it be possible that the oath means that the President need not uphold laws he simply doesn't like even though they were validly passed by Congress and signed into law by him?

Bush's most recent signing statement, on the torture bill says:

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, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

… Bush asserts that the law must be consistent with "constitutional limitations on judicial power."
…

The President does not have unlimited executive authority, not even as Commander-in-Chief of the military. Our govt was purposely created with power split between 3 branches, not concentrated in one.
Separation of powers, then, is not simply a talisman: It is the foundation of our system. James Madison wrote in The Federalist Papers, No. 47, that:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

The most effectual guard which has yet been discovered against the abuse of power, is the division of it. It is our happiness to have a constitution which contains within it a sufficient limitation to the power granted by it, and also a proper division of that power. But no constitution affords any real security to liberty unless it is considered as sacred and preserved inviolate; because that security can only arise from an actual and not from a nominal limitation and division of power.

Thomas Paine wrote in Common Sense:

In America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.

How much authority does the president possess when he is acting as "commander in chief"?
Evaluating President Bush's claims against a key Supreme Court executive power precedent
1.5.06   Edward Lazarus FindLaw

In my last column, I questioned the legality of the Administration's secret domestic spying program. Since then, President Bush has been out on the hustings arguing that the program was perfectly legal.
Such an argument fights an uphill battle, to say the least; in my view, a futile one.
Ordering the warrantless wiretapping of Americans contravenes the constitutional separation of powers by flouting the exclusive legal regime for intelligence-related wiretapping that was established by Congress in the Foreign Surveillance Intelligence Act (FISA), in order to protect the privacy of American citizens and respect the concern about govt surveillance reflected in the Fourth Amendment.

Despite numerous public pronouncements, we still don't know the details of the advice the President received in concluding that the wiretap program was somehow constitutional and otherwise legal.
We do know, though, that the President's basic strategy on this issue is to make a blanket pronouncement that he has the constitutional authority as "commander in chief" to exercise such power, and then to emphasize that the wiretapping program is essential to the fight against al Qaeda and other terrorist organizations.

Do these claims set forth even the bare bones of a plausible case for the constitutionality of the President's circumventing Congress and the Constitution's separation of powers?
In this column, I'll explain why the answer is no, drawing upon a key Supreme Court precedent that indicates that there are real limits on Presidential power, and that President Bush exceeded them.
That precedent is Youngstown Sheet & Tube Co. v. Sawyer.

There, the Justices considered the constitutionality of President Truman's executive order seizing private steel mills during the Korean War. In the end, they held the order unconstitutional.
The Youngstown Steel case arose from President Truman's decision that an impending strike by steelworkers could jeopardize U.S. participation in the Korean War. To head off the strike, Truman ordered the Secretary of Commerce to seize and operate the nation's steel mills. The Secretary followed this directive, and Truman then immediately notified Congress (and thus, the public), which took no contrary action.

Truman had no statutory authorization for the mill seizures, but he took the view that they were valid under his inherent authority as president and commander in chief.
The steel industry, however, challenged Truman's executive order. The industry claimed that Congress, when it passed the Taft-Hartley Act in 1947, had provided the exclusive framework for settling labor disputes; and that Congress had explicitly rejected a seizure provision when considering Taft-Hartley.
At the Supreme Court, Truman's view of the law lost 6-3.

Justice Robert Jackson penned an extremely influential concurring opinion in the Youngstown case, expanding upon the reasons undergirding the Court's result. In retrospect, his opinion is remarkably prescient. Indeed, it has emerged, over time, as the single most influential guidepost for assessing presidential claims of inherent authority.
Reduced to its essentials, Jackson's concurrence sets up a taxonomy of presidential power. That power is at its strongest, Jackson wrote,

when the President acts pursuant to congressional authorization, and less certain in the face of congressional silence. But "[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system." (Emphases added.)

In light of Truman's failure, it is exceedingly difficult to see why Bush should prevail. Without question, Bush's flouting of Congress and democratic principles is more severe than Truman's was. To begin with, FISA's prohibition on unauthorized wiretapping is explicit, whereas Taft-Hartley only proscribed govt seizures by implication.
Even more important, while Truman gave Congress and the public immediate notice of his actions, Bush acted in secret, made only incomplete and classified disclosure to Congress, and foreswore public disclosure entirely, beginning in 2002 until a leak revealed him.
Truman might have claimed that his quick, forthright disclosure provided at least some of the democratic accountability that may sometimes justify borderline executive action. But Bush can make no such claim.

It is no surprise, in light of the now widely-accepted principles that Jackson announced, that some on the President's team have sought to move the spying program out of Jackson's "low ebb" category, category that applies when the President directly clashes with Congress.
They have tried to do this by claiming some kind of congressional authorization for undertaking domestic national security wiretaps in direct violation of FISA via the authorization of the use of military force in Afghanistan after 9.11.01.

Bush himself seems to recognize that it as embarrassing to claim, all evidence to the contrary, that Congress, in authorizing the use of force after 9.11.01, somehow repealed FISA's finely wrought scheme for national security wiretapping.
That detailed scheme not only includes the FISA Court (typically all but a rubberstamp for Presidential requests), but also provides a time period, in time of war, for a president to seek additional powers from Congress. Bush did not bother to make any such request; he simply bypassed Congress, and acted secretly, instead.

With no legal defense to speak of, the President has put forth a defense based on policy.
The President's main tack, recently, has been to try to shift the spotlight away from any legal justification for the spying program, and onto the pressing need for new tools to fight the war on terror.
Interestingly, Justice Jackson anticipated just this kind of tactic. Presciently, he wrote in his concurrence that

"[t]he opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize transient results upon policies, such as wages or stabilization, and lose sight of enduring consequences upon the balanced power structure of our Republic." (Emphasis added)

Last month, to much public fanfare, the President brought John McCain into the White House to announce before the assembled cameras that he was going to drop his opposition to McCain's proposed legislation banning cruel, inhuman and degrading treatment of detainees by all U.S. personnel, anywhere in the world.
Under the Administration's approach to executive power, this concession, as well as Bush's subsequent signing of the ban on torture, was charade.

Under Administration theory, Congress has absolutely no power to limit the president's inherent authority as commander in chief to fight the war on terror. Which means that Bush signed the McCain bill while reserving to himself the right to violate its anti-torture provisions with impunity, and to do so in secret, so that the American people will never know, barring another leak to the New York Times, that he has flouted this very popular law.
In fact, when signing the Defense appropriation bill containing the McCain Amendment, Bush issued a signing statement euphemistically reserving just this authority to ignore the very law to which he had just put his name. Thus, the President wrote:

"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, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks."

Bush team imposes thick veil of secrecy
4.30.06   Mark Silva Chicago Tribune

Wash.D.C.   As the Bush administration has dramatically accelerated the classification of information as "top secret" or "confidential," one office is refusing to report on its annual activity in classifying documents: the office of Vice President Dick Cheney.
A standing executive order, strengthened by President Bush in 2003, requires all agencies and "any other entity within the executive branch" to provide an annual accounting of their classification of documents. More than 80 agencies have collectively reported to the National Archives that they made 15.6 million decisions in 2004 to classify information, nearly double the number in 2001, but Cheney continues to insist he is exempt.

Explaining why the vice president has withheld even a tally of his office's secrecy when such offices as the National Security Council routinely report theirs, a spokeswoman said Cheney is "not under any duty" to provide it.
That is only one way the Bush administration, from its opening weeks in 2001, has asserted control over information. By keeping secret so many directives and actions, the administration has precluded the public & members of Congress from knowing about some of the most significant decisions and acts of the White House.

After9.11.01, the administration has based much of its need for confidentiality on the imperative of protecting national security at a time of war. Experts say Bush and his closest advisers demonstrated their proclivity for privacy well before 9/11:

  • Starting in the early weeks of his administration with a move to protect the papers of former presidents, Bush has clamped down on the release of govt documents. That includes tougher standards for what the public can obtain under the Freedom of Information Act and the creation of a broad new category of "sensitive but unclassified information."


  • Not only has the administration reported a dramatic increase in the number of documents deemed "top secret," "secret" or "confidential," the president has authorized the reclassification of information that was public for years. An audit by a National Archives office recently found that the CIA acted in a "clearly inappropriate" way regarding about one-third of the documents it reclassified last year.


  • The White House has resisted efforts by Congress to gain information, starting with a White House energy task force headed by Cheney and continuing with the president's secret authorization of warrantless surveillance of people inside U.S. suspected of communicating with terrorists abroad. Sen. Arlen Specter R-PA recently threatened to withhold funding for the surveillance program unless the White House starts providing information.


  • The administration has withheld the identities of, and accusations against, detainees held in its war on terror, and it censored the findings of a joint House-Senate committee that investigated the events leading to 9.11.01, including a 27-page blackout of Saudi Arabia's alleged connections to the terrorists.


  • While maintaining a disciplined and virtually leakproof White House, sr members of the administration have been accused of leaking information to punish a critic of the war in Iraq. The grand jury testimony of a former White House aide reportedly asserts that Bush himself selectively authorized release of once-classified information to counter criticism.

Bush & Cheney have made it clear they are intent on reclaiming presidential powers lost by Bush predecessors. That erosion of power started with Richard Nixon's losing fight over the privacy of his papers after the Watergate scandal and continued through Bill Clinton's impeachment.
  …

The administration started asserting its power over paper soon after Bush's inauguration by placing a hold on the release of the records of former presidents, beginning with the papers of Ronald Reagan's presidency, later issuing an executive order granting past presidents a veto over releases.
The Presidential Records Act of 1978, enacted in response to Watergate-era court battles over Nixon's papers, had placed a hold on release of "confidential communications … between the president and his advisers" for 12 years after the conclusion of a presidency.

The order Bush issued in 2001 enabled former presidents, or their representatives if the president has died, to screen any request for records and withhold ones considered "privileged." It gave the same authority to vice presidents. Before the end of its first year, the administration also reversed a long-standing policy on how agencies respond to public requests for records under the Freedom of Information Act.
Clinton's attorney general, Janet Reno, had insisted on "a presumption of disclosure." But Bush's first attorney general, John Ashcroft, arguing that "no leader can operate effectively without confidential advice and counsel," implored all agencies to disclose information requested by the public "only after full and deliberate consideration … of the privacy interests that could be implicated."
The administration's policy, stated by Ashcroft in an 10.12.01 memo, had been in the drafting for months. After 9.11.01, amid growing concern about information that terrorists might obtain from govt, then-Bush Chief of Staff Andrew Card issued an order in March 2002 demanding that any "Sensitive but Unclassified Information" related to homeland security be released only after careful consideration "on a case-by-case basis."

That has led to a proliferation of documents stamped "Sensitive but Unclassified" or simply "For Office Use Only," according to experts who track govt record-keeping. The Bush administration is "objectively more secretive" than its recent predecessors, Aftergood said.
"Anyone who calls or writes a government agency for information encounters barriers that were just not there a decade ago," he said. "The govt is undergoing a mutation in which we are gradually shifting into another kind of govt in which executive authority is supreme and significantly unchecked."

Legal significance of presidential signing statements   1.20.06   Steven Aftergood FAS

When he signed the 2006 Defense Appropriations Act, which included a prohibition against torture of detainees in U.S. custody, President Bush issued a signing statement implying that he could disregard the new prohibition in his capacity as commander in chief.
"The executive branch shall construe [the statute], 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," he wrote in the 12.30.05 statement on H.R. 2863.

The use of Presidential signing statements to create a kind of quasi-legislative history intended to influence future judicial rulings is a relatively new and increasingly controversial phenomenon.
"So far as we have been able to determine, Presidential signing statements that purported to create legislative history for the use of the courts was uncommon, if indeed it existed at all, before the Reagan and Bush Presidencies," according to a 1993 memorandum from the Justice Dept Office of Legal Counsel.
"Reagan & Bush administrations made frequent use of Presidential signing statements, not only to declare their understanding of the constitutional effect of the statutory language, but also to create evidence on which the courts could rely in construing such language."

Among other problems with this practice, "it is arguable that 'by reinterpreting those parts of congressionally enacted legislation of which he disapproves, the President exercises unconstitutional line-item veto power'."

Torture ban? What torture ban?
1.4.06   Tim Grieve 'War Room' column Salon

War Room When George W. Bush and John McCain went before the TV cameras last month to say that they'd worked out a deal on the torture ban McCain had proposed and the White House had long resisted, Bush said that, together, they had "made it clear to the world that this government does not torture and that we adhere to the international convention of torture, whether it be here at home or abroad."
But as the Boston Globe reports this morning, the president seems to have undone that rather unequivocal stand when he signed the McCain measure into law late last week. In his signing statement, Bush said that he shall "construe" the ban "in a manner consistent with the constitutional authority of the president ... as commander in chief."
That's the same "constitutional authority," you may recall, that the White House has cited in justifying Bush's decision to authorize warrantless spying on American citizens in violation of the Foreign Intelligence Surveillance Act.
A senior administration official tells the Globe that the White House considers itself bound by the torture ban but that a situation could arise in which Bush might decide to disregard it in the interests of national security. It's an exception that swallows the rule, of course: Unless U.S. personnel are mistreating detainees solely for sport, isn't there always a "national security" justification that could be offered for torturing someone believed to be connected to terrorist activites?

"The whole point of the McCain Amendment was to close every loophole," siad Georgetown Univ. law prof and former Justice Dept lawyer Marty Lederman tells the Globe. "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."
NYU law professor David Golove puts its more bluntly: "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'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.'"

Wash.D.C.   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.
Legal scholars say the scope and aggression of Bush's assertions that he can bypass laws represent a concerted effort to expand his power at the expense of Congress, upsetting the balance between govt branches. The Constitution is clear in assigning to Congress the power to write the laws and to the president a duty "to take care that the laws be faithfully executed." Bush, however, has repeatedly declared that he does not need to "execute" a law he believes is unconstitutional.

Former administration officials contend that just because Bush reserves the right to disobey a law does not mean he is not enforcing it: In many cases, he is simply asserting his belief that a certain requirement encroaches on presidential power.
But with the disclosure of Bush's domestic spying program, in which he ignored a law requiring warrants to tap the phones of Americans, many legal specialists say Bush is hardly reluctant to bypass laws he believes he has the constitutional authority to override.
Far more than any predecessor, Bush has been aggressive about declaring his right to ignore vast swaths of laws, many of which he says infringe on power he believes the Constitution assigns to him alone as the head of the executive branch or the commander in chief of the military.

Many legal scholars say they believe that Bush's theory about his own powers goes too far and that he is seizing for himself some of the law-making role of Congress and the Constitution-interpreting role of the courts. Portland State University law prof. Phillip Cooper has studied the executive power claims Bush made during his first term, and says Bush and his legal team have spent the past 5 years quietly working to concentrate ever more governmental power into the White House.
"There is no question that this administration has been involved in a very carefully thought-out, systematic process of expanding presidential power at the expense of the other govt branches," Cooper said. "This is really big, very expansive, and very significant."
For the first five years of Bush's presidency, his legal claims attracted little attention in Congress or the media. Then, twice in recent months, Bush drew scrutiny after challenging new laws: a torture ban and a requirement that he give detailed reports to Congress about how he is using the Patriot Act.

Bush administration spokesmen declined to make White House or Justice Dept attorneys available to discuss any of Bush's challenges to the laws he has signed. Instead, they referred a Globe reporter to their response to questions about Bush's position that he could ignore provisions of the Patriot Act. They said at the time that Bush was following a practice that has "been used for several administrations" and that "the president will faithfully execute the law in a manner that is consistent with the Constitution."
But the words "in a manner that is consistent with the Constitution" are the catch, legal scholars say, because Bush is according himself the ultimate interpretation of the Constitution. He is quietly exercising that authority to a degree that is unprecedented in US history.

Bush is the first president in modern history who has never vetoed a bill, giving Congress no chance to override his judgments. Instead, he has signed every bill that reached his desk, often inviting the legislation's sponsors to signing ceremonies at which he lavishes praise upon their work.
Then, after the media and the lawmakers have left the White House, Bush quietly files "signing statements", official documents in which a president lays out his legal interpretation of a bill for the federal bureaucracy to follow when implementing the new law. The statements are recorded in the federal register.
In his signing statements, Bush has repeatedly asserted that the Constitution gives him the right to ignore numerous sections of the bills, sometimes including provisions that were the subject of negotiations with Congress in order to get lawmakers to pass the bill.

He has appended such statements to more than one of every 10 bills he has signed.
"He agrees to a compromise with members of Congress, and all of them are there for a public bill-signing ceremony, but then he takes back those compromises, and more often than not, without the Congress or the press or the public knowing what has happened," said Miami University of Ohio political science prof. Christopher Kelley who studies executive power.
Many of the laws Bush said he can bypass, including the torture ban, involve the military. The Constitution grants Congress the power to create armies, to declare war, to make rules for captured enemies, and "to make rules for the govt and regulation of the land and naval forces." But, citing his role as commander in chief, Bush says he can ignore any act of Congress that seeks to regulate the military.
On at least 4 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 govt 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.

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.
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.

  [ It is easy to get caught up in other aspects of Shrub's signed statements, but this is the core concept.
 More than any other, the pre-emption of Constitutional authority by the executive as tacit means of coronating & enthroning the emperor is justified nominally by commander in chief status.
 

This has 2 critical consequences.

  • It converts a civil constitutional democracy into a military dictatorship via bureaucratically implemented military coup.


• It's rationale necessitates perpetual war in order to preserve the pre-emption of Constitutional authority.

 


Not even the highly sought after aim of unceasing procurement profits is the fundamental motivation for perpetual war policy; addictive profiteering is still only net result of perpetual war policy.
  Neither is there an outright demonic desire for perpetual war motivating pursuit of PW policy, however evil the cynical subversion by leaders' acceptance of power's ends excusing any means of acquisition.


 Pursuit of  perpetual war policy preserves an executive's nominally temporary Constitutional pre-emption.
 Elections are supposed to be the instrument by which the electorate has the means to terminate this tyranny. But electoral science and technology by which elections are measured & implemented are now sophisticated enough yet reliable enough that corrupt election officials and corrupted processes can be depended on to reliably yield purchased results.


There is one scenario that actually justifies unilateral usurpation of democratic authority. This is best known as the Soylent Green scenario, although it is more accurately associated with the Hubbard curve of oil depletion.
 If the greedy democratic citizen insists on speculatively feasting on the seed corn, is it not the moral duty of stewardship for the tyrant to enslave the citizen in order to preserve the resources necessary for the slave nee citizen's heirs to live ?


 This rationale is used to defend China's one child policy, since statistics irrefutably demonstrate the famine will arrive in either case. The only choice is the degree to which famine's harm is reduced in hope of saving at least the population, if not the polity.  ]

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.

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 Dept 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 Dept to give oversight committees copies of administration memos outlining any new interpretations of domestic-spying laws. 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 Dept 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 govt 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. Bush's statement did more than send a threatening message to federal energy specialists inclined to raise concerns with Congress; it also raised the possibility that Bush would not feel bound to obey similar whistle-blower laws that were on the books before he became president. His domestic spying program, for example, violated a surveillance law enacted 23 years before he took office.

New York University law prof. David Golove who specializes in executive-power issues, said Bush has cast a cloud over "the whole idea that there is a rule of law," because no one can be certain of which laws Bush thinks are valid and which he thinks he can ignore.
"Where you have a president who is willing to declare vast quantities of the legislation that is passed during his term unconstitutional, it implies that he also thinks a very significant amount of the other laws that were already on the books before he became president are also unconstitutional," Golove said.

Bush has also challenged statutes in which Congress gave certain executive branch officials the power to act independently of the president. The Supreme Court has repeatedly endorsed the power of Congress to make such arrangements.
For example, the court has upheld laws creating special prosecutors free of Justice Dept oversight and insulating the board of the Federal Trade Commission from political interference.