Bush : ... "rule-maker, investigator, accuser, prosecutor, judge, jury, sentencing court, reviewing court, and jailer or executioner"
On June 5th the American Bar Association (400,000 members) announced creation of a Task Force on Presidential Signing Statements and the Separation of Powers Doctrine . “The task force will study thoroughly the implications of presidential signing statements for the constitutional doctrine of separation of powers and interpretation of laws,” said ABA President Michael S. Greco in announcing the task force which will report at their annual shindig in Honolulu August 7-8, 2006.
Why so ?
Well if you were taught about the US constitution and were told about the separation of powers, of the Legislature (Congress) and the Executive (The President) you need a little up dating.
When the President signs a Law he can also add a “signing statement”
Whilst this practice started with 5th U.S. President, James Monroe (1817-1825), from then they were used sparingly and mostly for rhetorical purposes ( I commend this Bill in the fight against slavery etc.,) . Until Ronald Reagan became President in 1980, only 75 statements had been issued. Reagan and his successors, George H. W. Bush and Bill Clinton (247 SS’s) took it to new heights and George Bush II has by some accounts issued some 750 challenges to Congressional authority.
Legally there is no US Constitutional provision, federal statute or common-law principle which explicitly permits or prohibits signing statements. Art 1 S. 1 in the Presentment Clause empowers the president to veto a law in its entirety, or to sign it and S. 2. requires that the executive "take care that the laws be faithfully executed".
When challenged the Clinton Administration claimed:
If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers, then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing. If so, then a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President's unwillingness to enforce (or willingness to litigate) such a provision, can be a valid and reasonable exercise of Presidential authority
What brought this to a head amongst constitutional lawyers, Congress and informed members of the public was the McCain Detainee Amendment about the inhuman and degrading treatment of detainees in U.S. custody which the President issued a signing statement ;
"The Executive Branch shall construe [the torture ban] 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."
This is based upon the Prof. Yoo / Alberto Golazalez unitary executive theory under which the the Commander in Chief when the nation is at war has the power and authority to use his discretion in interpreting and applying the law. The result is , it is argued, the President has with the signing statement to the McCain Detainee Amendment reserved the right to waive the "torture ban", effectively re-writing the law passed by Congress.
Of course this device has been used already to override other acts. Last March, Congress passed legislation requiring Justice Department officials to give them reports by certain dates on how the Federal Bureau of Investigation (FBI) is using the USA Patriot Act to search homes and secretly seize papers.
But when President George W. Bush signed the measure into law, he added a "signing statement." The statement said the president can order Justice Department officials to withhold any information from Congress if he decides it could impair national security or executive branch operations.
Congress is also unhappy at Bush's defense of his National Security Agency (NSA) "domestic eavesdropping" program, in which the president claimed he could ignore a 1978 law prohibiting wiretaps of U.S. citizens without "probable cause" and a warrant issued by a court.
The American Bar Asssociation had already taken the matter in hand when in February after the Press blew the whistle on widespread unauthorised elecronic surveillance, they issued a resolution ;
…. FURTHER RESOLVED, that the American Bar Association opposes any future electronic surveillance inside the United States by any U.S. government agency for foreign intelligence purposes that does not comply with the provisions of the Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801 et seq. (FISA), and urges the President, if he believes that FISA is inadequate to safeguard national security, to seek appropriate amendments or new
legislation rather than acting without explicit statutory authorization;
FURTHER RESOLVED, that the American Bar Association urges the Congress to affirm that the Authorization for Use of Military Force of September 18, 2001, Pub.L. No. 107-40, 115 Stat. 224 § 2(a) (2001) (AUMF), did not provide a statutory exception to the FISA requirements, and that any such exception can be authorized only through affirmative and
explicit congressional action; FURTHER RESOLVED, that the American Bar Association urges the Congress to conduct a thorough, comprehensive investigation to determine: (a) the nature and extent of electronic surveillance of U.S. persons conducted by any U.S. government agency for foreign intelligence purposes that does not comply with FISA; (b) what basis or bases were advanced (at the time it was initiated and subsequently) for the legality of such surveillance; (c) whether the Congress was properly informed of and consulted as to the surveillance; (d) the nature of the information obtained as a result of the surveillance and whether it was retained or shared with other agencies; and (e) whether this information was used in legal proceedings against any U.S. citizen.
.. and you guessed it they formed a Task Force.
Judging by the Commander in Chief’s response to the ruling last week by the Supreme Court over the case of Guantanamo resident Hamdan … don’t hold your breath.
Barbara Olshansky, Director Counsel of the Global Justice Initiative at the Center for Constitutional Rights, a prominent advocacy group. is reported saying , "I think it is hard evidence of (The President's) continued aggressive arrogation of power. It is a blatant attempt to expand power by pulling the rug out from under Congress each time it passes a bill that he dislikes." A book to read by her, is Secret Trials and Executions - Military Tribunals and the Threat to Democracy
"Olshansky, ..lays out a skillful argument which, point by point, shows how the "war on terrorism" at home amounts to a declaration of war on the Constitution itself..."
"With a single swipe of his pen, President Bush replaced the democratic pillars of our legal system with that of a military commission system in which he, or his designee, is rule-maker, investigator, accuser, prosecutor, judge, jury, sentencing court, reviewing court, and jailer or executioner."
Prof. Edward Herman of the University of Pennsylvania, also said , "The brazenness of Bush's use of this practice is remarkable. Even more remarkable is the fact that this de facto further nullification of congressional authority fails to elicit sustained criticism and outrage. It is part of a step-by-step abrogation of constitutional government, and it is swallowed by the flag-wavers and normalized. We are in deep trouble!"
It was Prof Herman who wrote of the gullibity of the Press and quoted the position in Guatemala in the 50's when a United Fruit public relations man commented sardonically on the media's gullibility ... "It is difficult to make a convincing case for manipulation of the press when the victims proved so eager for the experience."