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Congress v. Bush

By Dan Froomkin
Special to washingtonpost.com
Tuesday, July 25, 2006; 11:58 AM

As the United States wages war in the name of democracy, the question arises: What kind of democracy do we ourselves have in a time of war?

We may be getting a better idea if, as Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) is proposing, Congress grants itself the authority to sue President Bush over his "signing statements."

Bush's prodigious use of signing statements to assert his authority to ignore congressionally-passed statutes is unprecedented. Many of those demurrals in particular assert his mandate to wage war without interference from the other branches of government.

As a result, Specter's bill has the potential to spark a historic battle over the separation of powers.

Here's the transcript of Specter's speech on the Senate floor yesterday.

He noted yesterday's release of a report from an American Bar Association blue-ribbon panel, which concluded that Bush's signing statements undermine the rule of law and the constitutional system of separation of powers. He recalled the hearing that the Senate Judiciary Committee held on the subject a month ago.

And he announced: "During the course of the hearing before the Judiciary Committee, in my capacity as chairman, I made the request to Bruce Fein, who had been a lawyer in the Department of Justice during the Reagan administration, to take the lead and prepare legislation on the subject. Mr. Fein and my staff have been working on legislation. It is my expectation that, before the weekend, we will submit legislation to the Senate which will give the Congress standing to seek relief in the Federal courts in situations where the President has issued such signing statements and which will authorize the Congress to undertake judicial review of those signing statements, with the view to having the President's acts declared unconstitutional. That is our view as to the appropriate status of these signing statements."

I wrote about the Bar Association report in yesterday's column .

The topic came up ever-so-briefly at yesterday's White House press briefing , where spokesman Tony Snow continued to insist that the statements aren't such a big deal -- while punting on a direct response to the report.

Said Snow: "Keep in mind -- actually, in some ways, if you've read the signing statements -- because these have been cast as acts of civil disobedience, and they're not. The President does not have the luxury of practicing civil disobedience. The laws that have been enacted must be executed by the government. A great many of those signing statements may have little statements about questions about constitutionality. It never says, we're not going to enact the law. Furthermore, quite often, there are suggestions about ways to proceed that would be absolutely consistent with the congressional intent, and at the same time, consistent with the White House's views of the constitutional rights and privileges of the executive branch.

"We have not had time to digest it. The ABA got it into -- was issuing press releases before we got a hard copy. Give us a little bit of time to take a look, because we're being bombarded with quotes without having been given access to the document, itself. I think it's probably -- in fairness to them, we'll take a look. And you can follow up in coming days, because I'll keep asking our legal counsel."

Dick Polman blogs for the Philadelphia Inquirer: "I haven't heard talk like this from the legal establishment since Richard Nixon's executive excesses during Watergate."

A New York Times editorial this morning states: "The A.B.A. called Mr. Bush's use of presidential signing statements 'contrary to the rule of law and our constitutional system of separation of powers' and recommended that Congress enact legislation clarifying the issue.

"We agree on both points, even though we fear that if Congress passes a bill, Mr. Bush will simply issue a new signing statement saying he also does not intend to follow it."

Hamdan Revisited

Georgetown University Law Professor David Cole writes in the New York Review of Books to remind us of the significance of the Supreme Court's Hamdan decision.

"The Justice Department has maintained that the President can order torture, notwithstanding a criminal statute and an international treaty prohibiting torture under all circumstances. President Bush has authorized the National Security Agency to conduct warrantless wiretapping of American citizens, despite a comprehensive statute that makes such surveillance a crime. He has approved the 'disappearance' of al-Qaeda suspects into secret prisons where they are interrogated with tactics that include waterboarding, in which the prisoner is strapped down and made to believe he will drown. He has asserted the right to imprison indefinitely, without hearings, anyone he considers an 'enemy combatant,' and to try such persons for war crimes in ad hoc military tribunals lacking such essential safeguards as independent judges and the right of the accused to confront the evidence against him.

"In advocating these positions, which I will collectively call 'the Bush doctrine,' the administration has brushed aside legal objections as mere hindrances to the ultimate goal of keeping Americans safe. It has argued that domestic criminal and constitutional law are of little concern because the President's powers as commander in chief override all such laws; that the Geneva Conventions, a set of international treaties that regulate the treatment of prisoners during war, simply do not apply to the conflict with al-Qaeda; and more broadly still, that the President has unilateral authority to defy international law. In short, there is little to distinguish the current administration's view from that famously espoused by President Richard Nixon when asked to justify his authorization of illegal, warrantless wiretapping of Americans during the Vietnam War: 'When the President does it, that means that it is not illegal.'

"If another nation's leader adopted such positions, the United States would be quick to condemn him or her for violating fundamental tenets of the rule of law, human rights, and the separation of powers. But President Bush has largely gotten away with it, at least at home, for at least three reasons. His party holds a decisive majority in Congress, making effective political checks by that branch highly unlikely. The Democratic Party has shied away from directly challenging the President for fear that it will be viewed as soft on terrorism. And the American public has for the most part offered only muted objections.

"These realities make the Supreme Court's decision in Hamdan v. Rumsfeld, issued on the last day of its 2005-- 2006 term, in equal parts stunning and crucial."

Quoting Dellinger

As washingtonpost.com legal blogger Andrew Cohen notes, "making the rounds on conservative blogs is a 1993 memo by then Justice Department attorney Walter Dellinger who offered a defense of signing statements for his President, Bill Clinton."

Similarly, at the Senate Judiciary hearing last month, Justice Department official Michelle E. Boardman repeatedly cited Dellinger's work in the Bush administration's defense. So did Tony Snow , at a press briefing.

But Dellinger himself shot back the next day, on Slate: "The problem is not the president's assertion that he can ignore laws he believes to be unconstitutional. The problem is what laws he believes to be unconstitutional. . . .

"The problem has been what those presidential signing statements say -- even worse, what the legal opinions intended to be secret assert. They claim that laws whose validity has never been seriously questioned are unconstitutional based on extravagant and untenable theories of presidential power."

Specter Watch

Even as Specter's new proposal establishes him as a potential hero to those trying to limit Bush's executive power grab, the senator is still considered a goat by that bunch when it comes to his proposal regarding Bush's domestic spying program.

Specter's so-called compromise with the White House, which he defended in a Washington Post op-ed yesterday, would gut the law that made Bush's program illegal in the first place, while sending all lawsuits about the program to a secret court.

A secret court. Think about that for a moment. University of Texas at El Paso government professor Bill Weaver has. He writes on NiemanWatchdog.org that a secret court that only hears one side of the argument and doesn't disclose its decisions is not the place for important, precedent-settings constitutional decisions.

Lebanon Watch

Paul Richter and Ken Ellingwood write in the Los Angeles Times that Secretary of State Condoleezza Rice "told reporters that she began her Mideast trip in Beirut 'because I'm deeply concerned about the Lebanese people and what they're enduring. President Bush wanted me to make this the first stop.' "

Helene Cooper and Jad Mouwad write in the New York Times from Beirut that Rice "got an earful everywhere she went. . . .

"American diplomats characterized the visit as a 'dramatic' overture that demonstrated to the Arab world that President Bush was concerned about the rising civilian death toll in Lebanon.

"But clearly the Lebanese people, from Prime Minister Fouad Siniora down, are angry at Israel and at America for its support of Israel."

Maliki Watch

President Bush and visiting Iraqi Prime Minister Nouri al-Maliki hold a joint press conference just after my deadline today. One big question is whether Maliki can steer a course so he doesn't come off as a dependent puppet or an incipient rebel.

Edward Wong writes in the New York Times: "When Prime Minister Nuri Kamal al-Maliki visits the White House on Tuesday for the first time, he is expected to make requests that clash sharply with President Bush's foreign policy, Iraqi officials say, signaling a widening gap between the Iraqis and the Americans on crucial issues.

"The requests will include asking President Bush to allow American-led troops in Iraq to be tried under Iraqi law, and to call for a halt to Israeli attacks on Lebanon, according to several Iraqi politicians, and to a senior member of Mr. Maliki's party who asked not to be named because he was not authorized to speak for the prime minister.

"Mr. Maliki is also expected to demand more autonomy for Iraqi forces, though he will not ask for a quick withdrawal of the 134,000 American troops here, the officials say.

"The growing differences between Iraqi and American policies reflect an increasing disenchantment with American power among politicians and ordinary Iraqis, according to several politicians, academics and clerics. Sectarian violence has soared despite the presence of the Americans, and recent cases where American troops have been accused of killing civilians or raping Iraqi women have infuriated the public."

Arms Race Watch

The White House is working hard to get Congress to approve its proposed nuclear pact with India.

One of the biggest concerns about that pact is that it would unleash a new nuclear arms race in the region. The scenario: Because India could suddenly build vastly more nuclear weapons, Pakistan would decide to build more, India would then definitely build more, and then China would feel obliged to build more. See my March 3 column .

So members of Congress would probably want to know if Pakistan were building a powerful new reactor that could signal a major expansion of the country's nuclear weapons capabilities and a potential new escalation in the region's arms race.

But when Joby Warrick reported just that in Monday's Post, it was the first time Congress had heard about it.

In today's Post, Warrick reports that Tony Snow acknowledged yesterday that the White House had "known of these plans for some time."

Warrick writes: "Henry D. Sokolski, the Defense Department's top nonproliferation official during the George H.W. Bush administration, said he was most surprised by the way news of the reactor in Pakistan became known.

" 'What is baffling is that this information -- which was surely information that our own intelligence agencies had -- was kept from Congress,' said Sokolski, now director of the Nonproliferation Policy Education Center. 'We lack imagination if we think that this is no big deal.' "

The Elephant in the Room

Dana Milbank writes a curious column in The Washington Post about a GOP Senate candidate who has lunch with nine reporters to air his gripes about how the Bush White House is making his job much harder -- but insists on remaining anonymous.

"The source of the candidate's anger -- and his anxiety -- is the Iraq war, which he called 'the single thread that is weaving through every issue,' including high gas prices and the violence in Lebanon. 'People want an honest assessment from the administration, and they want to hear the administration admit we thought this, and it didn't happen that way, and -- guess what -- it didn't work, so we're going to try a Plan B.' He continued: 'Let's call it what it is. We thought this was going to be a different kind of engagement.' "

Bloggers are playing "Guess the candidate."

Kenneth R. Bazinet writes in the New York Daily News: "President Bush's new fundraising appeal suggests he's more than a little worried about the fall congressional elections, warning that a Democratic victory will sink the GOP agenda. . . .

"A top Bush political adviser said yesterday that Republicans remain confident of retaining the Senate in November, but 'the House is definitely in play.' "

Mike Allen writes for Time: "As for Bush himself, he is curtailing his traditional August working vacation at the ranch so that he can barnstorm before the midterm elections. Their outlook thus far seems so ominous for the G.O.P. that one presidential adviser wants Bush to beef up his counsel's office for the tangle of investigations that a Democrat-controlled House might pursue."

Poll Watch

Bush is back down to 37 percent job approval in the latest Gallup poll.

Joseph Carroll reports for Gallup: "Despite many extraordinary events dominating the news over the past weeks -- including the ongoing conflict between Israel and Hezbollah in Lebanon and Bush's high-visibility trip to Europe -- this slight drop from the 40% approval rating measured earlier in the month is not statistically significant and falls within the margin of error between the two surveys. The current 37% rating is similar to his average approval rating of 37% for all of June."

There's a new question on the poll: "Do you think the Bush administration has a clear and well-thought out policy on the situation in the Middle East, or not?" The results: 27 percent say he does, 67 percent say he does not.'

Plame Watch

Toni Locy writes for the Associated Press: "No one in the Bush administration has been stripped of security clearances over the leak of former CIA officer Valerie Plame's identity to reporters three years ago.

"In a letter to Sen. Frank Lautenberg, D-N.J., the CIA said it had no record of anyone in the administration who is no longer privy to the nation's most sensitive secrets because of the Plame leak.

"The CIA also revealed it has not yet completed a formal assessment of the damage to national security that may have been caused by Plame's outing in 2003. . . .

"For more than a year, Lautenberg and other Democrats have been calling on President Bush to fire presidential adviser Karl Rove and any other aides who discussed Plame's CIA status with reporters -- or, at the least, to revoke their security clearances."

Karl Rove Watch

Amy Argetsinger and Roxanne Roberts write in The Washington Post about Rove's visit to the Washington D.C. jury pool (the same day as former secretary of state Madeleine Albright!)

"The Bush strategist was in a lightweight olive-green suit, cell glued to ear, and looked like he had lost weight. He was heard telling Albright that Omaha (which just won a surprising chunk of anti-terror funds) is a target because all the phone lines cross there. In the waiting room, he passed time with homework (notes on the Iraqi prime minister's visit, a draft op-ed on American workers, a PowerPoint on Social Security reform, an article on 'Candidate Giuliani,' bullet points on Gulf Coast reconstruction). When another juror started snoring, he quipped, 'We need to get that guy some sinus surgery.' Once in the courtroom (a cocaine distribution case), Rove was quickly excused, prompting a wave of huffy our jobs are as important as his! whispers. But, explained White House spokeswoman Dana Perino, 'He knew the judge socially': Their kids graduated from high school together. Said another juror: 'Somehow I thought his next court appearance would be less mundane.' "

Note to self: A PowerPoint on Social Security reform. Interesting.

Surprise, Surprise

Libby Copeland writes in The Washington Post: "President Bush and his top officials tend to make a lot of unannounced trips these days. It has gotten to the point where it would be a surprise if the Bush administration didn't make a surprise visit every few months."

Saluting the Flag

Bush boldly signed legislation yesterday that bars condominium and homeowner associations from restricting how the American flag can be displayed.

Here's his statement : "Americans have long flown our flag at their homes as an expression of their appreciation for our freedoms and their pride in our Nation. As our brave men and women continue to fight to protect our country overseas, Congress has passed an important measure to protect our citizens' right to express their patriotism here at home without burdensome restrictions."

Murder Confession

Peter Baker writes in The Washington Post: "President Bush does not consider stem cell research using human embryos to be murder, the White House said yesterday, reversing its description of his position just days after he vetoed legislation to lift federal funding restrictions on the hotly disputed area of study.

"White House press secretary Tony Snow said yesterday that he 'overstated the president's position' during a briefing last week but said Bush rejected the bill because 'he does have objections with spending federal money on something that is morally objectionable to many Americans.' . . .

" Tim Russert , host of NBC's 'Meet the Press,' grilled White House Chief of Staff Joshua B. Bolten on Sunday about whether Bush agreed with Snow's characterization. Bolten avoided a direct answer several times and then finally said, 'I haven't spoken to him about the use of particular terminology.'

"At yesterday's briefing , Snow retracted his statement and apologized. 'I overstepped my brief there, and so I created a little trouble for Josh Bolten in the interview,' Snow said. 'And I feel bad about it.' "

Sorry, Bunnies

Here's a post from the satirical Sadly, No! blog about some bunnies who took another one of Snow's statements about stem-cell research a little too literally.

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