Above the law

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’s signing statement, which was posted on the White House website but had gone unnoticed over the New Year’s weekend, raises serious questions about whether he intends to follow the law.

This, combined with the recent FISA silliness, seems to indicate that the president thinks he’s a above the laws passed by congress. Sure, there may be a case that congress overstepped its authority in both instances but the fact is that the administration can address that through the courts. Instead, it has chosen not to and this could potentially be a dangerous precedent regarding checks on power. It’s quite troubling, actually. You cannot just disobey laws you think don’t pass constitutional muster. There is a method for appropriately dealing with that and we should expect the president, of all people, to realize that and follow that.

Note to the Bush administration: you’re only one branch of government.

Posted in uncategorized on January 6th, 2006 by SayUncle | RSS 2.0 |

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Standard Mischief Says:
January 6th, 2006 at 10:26 am

So why exactly have the peoples allowed the President’s executive orders have any more power or weight than just mere instructions to the executive branch?

And no, Bush was not the first Prez to abuse the power of an executive order, neither was Bush the first.

Neither was it a certain “New Deal” Roosevelt.

The first I know about was Lincoln’s “Emancipation Proclamation”*, but perhaps there were earlier abuses.

So I guess in a sense, you still can blame this on the Republicans.

*Commence misinterpreting the above statement to assume Standard Mischief approves of slavery.

Standard Mischief Says:
January 6th, 2006 at 10:36 am

…you cannot just disobey laws you think don’t pass constitutional muster…

Well sure you can, it’s called Civil Disobedience, it’s also apparently one of only a handful of ways to get a chance to plea your case in court. You do, however, have to prepare yourself to accept the penalty of your actions.

And if you are the President, that may just mean Impeachment.

JJ Says:
January 6th, 2006 at 10:43 am

Okay, so he follows up the legislation with another legal (LEGAL!!!) document detailing how he will comply with the legislation, and you believe he’s outside the law? Let me state this another way: he goes through the correct process which includes detailing how he will EXECUTE (Executive Branch) the law, and through his compliance with the law and procedures of law-making, you believe he’s saying he above the law?

Okay, somewhere there’s a logic breakdown. He’s done his job. He’s signed the law, with a LEGAL and APPROPRIATE addition detailing how he will follow his constitutional authority of EXECUTING THE LAW, and since you SUSPECT that his implementation MAY NOT be in line with your UNDERSTANDING of the law, you think he believes he’s above the law. Before you judge him, let’s wait and see what this law actually says. If it contains words such as ‘appropriate’ and ‘reasonable’ and ‘unjust’ and ‘extreme’, who determines what constitutes a violation of those words?

sorry for the caps, but those words are important, so i called them out. i promise not to use caps in the rest of this posT. oops.

at some point, will you send a note to congress saying that it is only one branch of government and is not allowed to limit the president’s constitutional authority? bush is stating he’s above the law because he’s abiding by his constitutional authority, but congress is within its powers by violating the constitution? will you send a note to congress asking them to reign in their acts and abide by the constitution? you seem to hold bush to a higher standard than congress. and before you push this line, he will comply with the law, but it is to his discretion how to best execute the law. this is the power of the executve branch. you are generally pretty critical of congressional action when gun laws are involved. use that same standard here.

my questions:

1. how often is this done by a president? since it is an official document with a name, it may be frequently used. i’ll find out.
2. under what other circumstances is this done? this may be an understanding between congress and president which allows both to claim victory. only in this case, people are making a mountain out of a mole-hill.
3. if this is a legal application of presidential powers (depending on the answers to 1 and 2), perhaps you have misunderstood, and so did the original author, what this process means.

just a few thoughts. before we jump into another scandal that wasn’t, maybe we should get some facts.

JJ Says:
January 6th, 2006 at 10:57 am

Other signing statements of record:

http://www.archives.gov/iwg/about/intelligence-authorization-act-hr5630.html
http://www.library.cornell.edu/colldev/mideast/libera.htm
http://www.fed-soc.org/Publications/practicegroupnewsletters/administrativelaw/clinton-adminv3i3.htm
http://mpsa.indiana.edu/conf2003papers/1031858822.pdf

So, link #3 details how Clinton would not comply with part of a law. #4 is a paper concerning signing statements in general:

The presidential signing statement has long been the “black sheep” of presidential power tools. Presidential scholars have paid more attention lately to presidential proclamations, memoranda, and executive orders.1 In addition to the new focus on unusual presidential powers, the signing statement has also been overshadowed by the focus on the presidential veto and veto bargaining.2 As I will demonstrate, the presidential signing statement is not only a formidable power in its own right, but it also is highly useful for the president when he does not get all that he wishes in his negotiations with the Congress or to take advantage of a contentious debate within the Congress. And as some have commentated, the presidential signing statement often acts as an “iron-clad item veto”3 because it allows the president to excise items from a bill without any chance for the Congress to overrule the decision.

Does this help?

SayUncle Says:
January 6th, 2006 at 11:02 am

Does it help? No. I’m not comforted that there’s a long tradition of disregarding law or interpreting the law so that there may as well not be one.

JJ Says:
January 6th, 2006 at 11:16 am

“Disregarding”? No. What Bush, Clinton, and the other presidents have done is legal. While it is convenient to hold the Executive Branch to a high standard when one may agree with the law, we must find and maintain a standard. In this case, the standard allows for the Executive Branch to determine how it will execute the laws passed. It may not be in line with the ideal situation, but it is legal and considered appropriate.

Just like the obstructionism and filibustering by the Senate is a legal way for them to avoid their constitutional duties of “advise and consent”, this is a legal and appropriate way for Bush to do his job. Consider it this way: a liberal congress passes a law in violation of its 2nd Amendment prohibition, the Executive Branch doesn’t raise a stink, and some activist judges refuse to throw it out. Will you follow the law? Why or why not?

Some laws are bad, and if no one else will stand up, we will have to. In this case, Bush has the spine to stand up to a bad law or an unconstitutional over-reach of legislative authority. Luckily, he has a legal way to do it.

Standard Mischief Says:
January 6th, 2006 at 11:55 am

Here is a related link.
http://www.boston.com/news/nation/washington/articles/2006/01/05/3_gop_senators_blast_bush_bid_to_bypass_torture_ban/
(hint: first go and delete any “boston.com” cookies in your browser cache, or it will ask you to registrar first, or use BugMeNot)

Elisa Massimino, Washington director of Human Rights First, said the senators’ 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.

However, there is no check-and-balance for a specific, allegedly tortured “person of interest” to sue, if the there is no access to the courts for the victim. further quote (very end)

“…Bush’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.”

JJ Says:
January 6th, 2006 at 12:09 pm

Congress tried in the 70’s to prevent Carter’s pardon for Viet Nam war deserters. They passed a law that prohibited funding from being used to implement his pardon plan. That was the major time Carter used his “signing statement” to alter the legislation.

For example, in the “Departments of State, Justice, and Commerce, the Judiciary, and related agencies for fiscal year1978”5, an amendment6 was added that prohibited “the use of funds under this Act to carry out [President Carter’s] amnesty program [for the Vietnam War draft resisters].”7 When President Carter signed the law, he noted his objection to the amendment because it interfered with his pardon power, was an unconstitutional bill of attainder, and denied due process of the law.

To carry out the pardon, President Carter would have to process all of the re-entry applications for those draft resisters that left the country. Even though the Justice Department announced that the restriction would prevent the re-entry of many of the draft resisters, in the end the Carter administration ignored the amendment and processed all of the applications.

This from Link #4 above. As you see, this can be used for anything. Not sure what I feel about it, other than that it appears to be legal, and therefore Bush is legally correct.

I think too many people are trying to find a reason to accuse Bush of some illegal activity. Do you miss Clinton that much?

Standard Mischief Says:
January 6th, 2006 at 12:43 pm

General question:

If an unnamed “person of interest” is being held for a infinite amount of time in an unknown location and is allegedly tortured by a unnamed agent in violation of the anti-torture act, and said prisoner actually manages to find a court where he can file suit, and said suit is not immediately dismissed due to lack of jurisdiction, what would prevent that secret court that never has to announce a precedent, from dismissing the case outright because the allegedly torturer was acting under “Sovereign Immunity”?

I’m thinking specifically of a LEO named Lon Horiuchi. There are specific laws against murdering unarmed citizens wielding “assault” babies openly, right?

persimmon Says:
January 6th, 2006 at 2:35 pm

A signing statement is far better than what Bush did with FISA. He is declaring and justifying his intentions. With FISA, there was no declaration of his interpretation or intent. In fact, it is not yet clear what he did in relation to American citizens.

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