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Is Bush Violating the Law?

By Dan Froomkin
Special to washingtonpost.com
Thursday, February 1, 2007; 12:58 PM

What do President Bush's "signing statements" really signify? When the president asserts his right to ignore legislation passed by Congress --- such as the ban on torture --- is he then acting on that assertion? Or is it just harmless ideological bluster?

When the Boston Globe's Charlie Savage first wrote about Bush's use of these stealthy statements more than a year ago, neither the Washington press corps nor the Republican-controlled Congress expressed any enthusiasm about getting to the bottom of this important Constitutional riddle.

But elections do have consequences.

And as Savage writes in today's Boston Globe: "The new chairman of the House Judiciary Committee, John Conyers Jr. of Michigan, said yesterday that he is launching an aggressive investigation into whether the Bush administration has violated any of the laws it claimed a right to ignore in presidential 'signing statements.'

"Bush has claimed that his executive powers allow him to bypass more than 1,100 laws enacted since he took office. But administration officials insist that Bush's signing statements merely question the laws' constitutionality, and do not necessarily mean that the president also authorized his subordinates to violate them.

"Conyers said the president has no power 'to ignore duly enacted laws he has negotiated with Congress and signed.' . . .

"The Michigan Democrat made his remarks at the committee's first oversight hearing since Democrats took control of Congress, which Conyers devoted to signing statements. He called the hearing a kickoff to his plans to use the coming session to probe the administration's 'growing abuse of power.'"

William Douglas writes for McClatchy Newspapers: "In written testimony, Assistant Attorney General John P. Elwood said that Bush has never used signing statements as an attempt to 'override' enacted laws.

"But several legal experts and lawmakers contend that some of the president's signing statements have that potential. Some point to a signing statement regarding the McCain amendment, which forbids U.S. torture of prisoners.

"After he signed the amendment into law with fanfare in December 2005, Bush quietly issued a signing statement from his Texas ranch saying that he would view the law 'in a manner consistent with the constitutional authority of the president . . . as commander in chief.'

"He added that his approach 'will assist in achieving the shared objective of the Congress and the president . . . of protecting the American people from further terrorist attacks.'

"The Bush White House maintains that because the nation is in an indefinite war on terror, Bush's constitutional authority as commander in chief has virtually no boundary. His language in the signing statement on the McCain amendment was widely viewed as reserving himself the right to ignore it."

Here is the prepared text of Conyers's opening statement: "I intend to ask the Administration to identify each and every statutory provision they have not agreed with in signing statements, and to specify precisely what they have done as a result. For example, if the President claims he is exempt from the McCain Amendment ban on torture, I want to know whether and where he has permitted it. And we want to know what has he done to carry out his claims to be exempt from many other laws, such as oversight and reporting requirements under the PATRIOT Act, numerous affirmative action obligations, and the requirement that government obtain a search warrant before opening the mail of American citizens.

"I am also going to ask my staff, along with Ranking Member Smith's staff, to meet with the Department of Justice and the White House so we can get to the bottom of this matter, and to be blunt, we are not going to take no for an answer. We are a co-equal branch of government, and if our system of checks and balances is going to operate, it is imperative that we understand how the Executive Branch is enforcing -- or ignoring -- the bills that are signed into law."

Written testimony from yesterday's witnesses can be found here.

And as I mentioned in yesterday's column, the William and Mary School of Law is holding a major symposium on Saturday titled " The Last Word? The Constitutional Implications of Presidential Signing Statements."

For some reason, there was no mention of this important story today in either The Washington Post, the New York Times or the Los Angeles Times.

Warrantless Wiretaps Watch

Speaking of possible violations of the law, Dan Eggen writes in The Washington Post: "The Justice Department turned over documents about the government's controversial domestic spying program to select members of Congress yesterday, ending a two-week standoff that included pointed threats of subpoenas from Democrats.

"The deal appears to resolve the latest conflict between Congress and the administration over the National Security Agency's surveillance effort, and it provides new evidence of the administration's more accommodating approach to the Democrats who now control Congress. . . .

"Under yesterday's accord, announced by Attorney General Alberto R. Gonzales, more than three dozen lawmakers will have access to the secret court orders governing the spying program that were issued Jan. 10 and the applications from the Justice Department that preceded them. . . .

"But Gonzales and other Bush administration officials also indicated that they had no intention of making the orders and related documents available to the public. The lawmakers and staff who view the records will be subject to strict statutes that bar disclosure of classified information. Congressional aides said it was unclear how much new information could be shared with the public. . . .

"One key question is whether the new approach resembles traditional criminal procedures -- which require the government to obtain a separate warrant for each individual it wants to monitor -- or whether it allows eavesdropping on a more broadly defined group of people. Several sources who have been briefed on the program have described it as a hybrid of the two."

It's become accepted journalistic shorthand to say that the previous NSA spying program no longer exists, having been replaced by a new program that meets court muster. But as I first noted in my January 19 column, that's certainly not the way Bush himself sees things. In an under-the-radar broadcast interview, Bush put it this way: "Nothing has changed in the program except for the court has said we analyzed it, it is a legitimate, it is a legitimate way to protect the country."

And yesterday, in an interview with members of the Wall Street Journal editorial board, Bush continued in that vein.

Today's lead Wall Street Journal editorial states that "we've been critical of Mr. Bush, notably on his decision to abruptly change gears and subject his NSA warrantless wiretap program to judicial review. So we asked why he had made that decision after 13 months of insisting that those wiretaps were a Presidential prerogative?

"'Scrap the program' is not accurate,' he insisted. 'The program exists. And now we've had a program ratified by the judiciary which is going to make it easier for a future President to have this program in place. . . . It had nothing to do with diminution of Presidential authority. It had everything to do with getting a second branch of government to support that which I have done.'"

More From That Interview

The Journal editorial notes that Bush "sat down for 45 minutes with a few members of this newspaper's editorial board. If Mr. Bush is beaten down by the polls and his party's loss of Congress, he isn't showing it. . . .

"As he weaves between comments both on and off the record, Mr. Bush betrays little doubt about the direction of his policies, regardless of the politics."

Here are a few excerpts, including Bush acknowledging that Congress has the authority to limit the war in Iraq down if it wishes. (The Wall Street Journal types sounded positively disappointed.)

"WSJ: There's a lot of discussion in Congress about putting caps on troop levels or defunding or saying you can't deploy, as commander in chief, troops in Baghdad. Do you think Congress has the constitutional authority . . . .

"GWB: I think they have the authority to defund, use their funding power . . . .

"WSJ: You do?

"GWB: Oh yeah, they can say 'We won't fund.' That is a constitutional authority of Congress. . . .

"WSJ: Can they put caps on total deployments in Iraq?

"GWB: They can . . . through the purse. In others, I don't know if they're going to. And I don't want to predict. But they have the right to try to use the power of the purse to determine policy."

The Cavuto Interview

Bush found another friendly interlocutor in Fox News commentator Neil Cavuto yesterday.

Here's Cavuto asking Bush how he feels about congressional Republicans turning against him on the war.

Cavuto: "They were all with you, Mr. President, when times were good. And even fellow part members, when times got difficult, they all abandoned you. . . . "

Bush: "Oh, I wouldn't say, I don't -- "

Cavuto: "Does that -- "

Bush: "I don't feel abandoned. And what do you expect? When times are good, there's millions of authors of the plan. When times are bad, there's one author, and that would be me."

After asking Bush about Senator Barack Obama's proposal that all troops be out of Iraq by March 2008 (Bush, of course, said he is against timetables), Cavuto asked: "How do you think the troops would feel about a President Obama?"

Bush: "Oh, I don't know. He ain't -- look -- he hasn't got elected yet. He ain't even got the party's nomination either. He's an attractive guy, he's articulate, I've been impressed with him, I've seen him in person, but he's got a long way to go to be president."

Here is video of the Cavuto interview, parts one, two, and three.

On Katrina

Bush has not mentioned Hurricane Katrina recovery efforts in his major speeches of late, leading critics to suggest he is out of touch with the continuing ordeals of New Orleans and Gulf Coast residents.

Washington Post columnist Eugene Robinson, for instance, wrote last week: "How nice that the White House has been able to move beyond the trauma of September 2005 -- wind and water, death and destruction, poverty and race."

And, indeed, Bush does not seem too troubled by what's going on. Asked about federal disaster response by Cavuto, Bush had this to say:

"I think the federal bureaucracy responded pretty quickly for Katrina -- and New York. We set up the funds, we put people in place, the monies were spent, the monies were distributed." He shrugs. "And where there is -- I mean, I'm confident there's some places where the money's been slowly spent, and we're constantly listening to members of the Congress to make sure that we are able to free monies that the bureaucracy is, you know, withholding money or slowing up the expenditure of money."

The view from the ground, say from New Orleans and Mississippi, suggests otherwise.

Iran Watch

U.S. News reports that "Democrats on Capitol Hill are increasingly concerned that President Bush will order air strikes against targets in Iran in the next few months or even weeks. . . . Democratic insiders tell the Political Bulletin that they suspect Bush will order the bombing of Iranian supply routes, camps, training facilities, and other sites that Administration officials say contribute to American losses in Iraq. Under this scenario, Bush would not invade Iran with ground forces or zero in on Iranian nuclear facilities. But under the limited-bombing scenario, Bush could ask for a congressional vote of support, Democratic insiders predict, which many Democrats would feel obliged to endorse or risk looking like they weren't supportive of the troops. Bombing Iran would also take attention away from the troubled situation in Iraq and cause a rally-round-the-president reaction among Americans, at least for a while."

Paul Richter writes in the Los Angeles Times: "The Bush administration has postponed plans to offer public details of its charges of Iranian meddling inside Iraq amid internal divisions over the strength of the evidence, U.S. officials said."

The New York Times editorial board writes: "Given America's bitter experience in Iraq, one would think that President Bush could finally figure out that threats and brute force aren't a substitute for a reasoned strategy. But Mr. Bush is at it again, this time trying to bully Iran into stopping its meddling inside Iraq. . . .

"Mr. Bush's bullying may play well to his ever shrinking base. But his disastrous war in Iraq has done so much damage to America's credibility -- and so strained its resources-- that it no longer frightens America's enemies. The only ones really frightened are Americans and America's friends."

Congress v. Bush

Shailagh Murray and Jonathan Weisman write in The Washington Post: "Democratic and Republican opponents of President Bush's troop-buildup plan joined forces last night behind the nonbinding resolution with the broadest bipartisan backing: a Republican measure from Sen. John W. Warner of Virginia.

"Senate Majority Leader Harry M. Reid (D-Nev.) announced the shift, hoping to unite a large majority of the Senate and thwart efforts by the White House and GOP leaders to derail any congressional resolution of disapproval of Bush's decision to increase U.S. troop levels in Iraq by 21,500. . . .

"White House spokeswoman Dana Perino responded to the announcement by saying: 'The president wants to win in Iraq -- he's proposed a comprehensive plan to do so, and he's asked Congress to give the plan a chance to work. . . . These resolutions send mixed signals to our troops and our enemy.'"

Scooter Libby Watch

Richard B. Schmitt writes in the Los Angeles Times: "A former Time magazine reporter said Wednesday that it was President Bush's political advisor, Karl Rove, who first revealed to him that the wife of an administration critic worked for the CIA. . . .

"Cooper, then Time magazine's White House correspondent, began reporting what he saw as a major battle between Wilson and the Bush administration over whether the president had misled the public about the march to war. He subsequently spoke with Rove on July 11."

Amy Goldstein and Carol D. Leonnig write in The Washington Post: "The next day, Cooper said, he asked Libby whether Wilson's wife worked at the CIA.

"According to Cooper, Libby said 'words to the effect, "Yeah, I've heard that, too," ' though Libby did not name her."

Neil A. Lewis writes in the New York Times: "Patrick J. Fitzgerald, the chief prosecutor, said Wednesday he wanted to introduce evidence to explore one of the case's most intriguing mysteries: a note from Mr. Libby to Ms. Miller giving her permission to testify.

"In the September 2005 note, Mr. Libby told Ms. Miller, who was in jail at the time, that she was no longer bound by her pledge of confidentiality and that she should testify before the grand jury. He added, cryptically, that the aspen trees in Colorado change color at the same time because they are bound at the roots.

"Mr. Fitzgerald said Wednesday, while conferring with the judge while the jury was out of the room, that the note was an effort to persuade Ms. Miller to lie to the grand jury and back up Mr. Libby's story, saying it demonstrated Mr. Libby's 'consciousness of guilt.'

"Judge Walton pointed out that Ms. Miller's testimony had not helped Mr. Libby, however, and had contributed to the indictment against him.

"'We don't think that the letter worked,' Mr. Fitzgerald said."

Here's a copy of that letter, which reads in part: "You went into jail in the summer. It is fall now. . . . Out West, where you vacation, the aspens will already be turning. They turn in clusters, because their roots connect them."

Matt Apuzzo writes for the Associated Press: "Special Prosecutor Patrick Fitzgerald appears to be saving NBC newsman Tim Russert as his last witness in the perjury trial of former White House aide I. Lewis 'Scooter' Libby.

"In the meantime, Fitzgerald may let Libby himself do the talking.

"Fitzgerald has said he plans to play excerpts from Libby's grand jury testimony at trial."

Greg Miller writes in the Los Angeles Times that "in many respects, it is the ugly mutual exploitation that goes on every day in Washington between powerful government officials and influential members of the media that is on trial in U.S. District Court in Washington. . . .

"The trial has also reinforced stereotypes that reporters in Washington and the officials they cover are part of an elite crowd that has little in common with average readers."

And James Gordon Meek writes in the New York Daily News: "Several top White House figures - from Vice President Cheney on down - told others that the wife of Iraq war critic Joseph Wilson was a CIA operative, testimony at Lewis (Scooter) Libby's trial has revealed. . . .

"According to witness testimony, trashing Wilson and Plame was a top priority in 2003 for several of Bush's closest aides.

"The vice president, Libby, Bush political guru Karl Rove, Cheney spokeswoman Cathie Martin, ex-Deputy Secretary of State Richard Armitage, former Bush spokesman Ari Fleischer, current White House counselor Dan Bartlett and other government officials all talked about Plame's job, witnesses have said."

Bush on Income Inequality

Michael Abramowitz and Lori Montgomery write in The Washington Post: "President Bush acknowledged Wednesday that there is growing income inequality in the United States, addressing for the first time a subject that has long concerned Democrats and liberal economists.

"'The fact is that income inequality is real -- it's been rising for more than 25 years,' Bush said in an address on Wall Street. 'The reason is clear: We have an economy that increasingly rewards education and skills because of that education.' . . .

"Democrats said Bush's speech is a reaction to the success of their agenda and to growing anger among voters who feel they are being left behind."

But there is income inequality -- and there is income inequality. Bush was only acknowledging one form: The growing income gap between skilled and unskilled workers. In shorthand, that's the gap between the poor and everyone else.

But Bush demonstrated no awareness of the income inequality problem that many consider much more troubling: The growing chasm between the super-rich and the rest of America, including the middle class.

That's a gap that Bush has encouraged through tax cuts heavily skewed toward the wealthy.

For instance, as the Center on Budget and Policy Priorities recently reported: "The new CBO data document that income inequality continued to widen in 2004. The average after-tax income of the richest one percent of households rose from $722,000 in 2003 to $868,000 in 2004, after adjusting for inflation, a one-year increase of nearly $146,000, or 20 percent. This increase was the largest increase in 15 years, measured both in percentage terms and in real dollars. . . .

"The new data also highlight the degree to which income gains over the past quarter-century have become increasingly concentrated at the top of the income scale. Since 1979 -- the first year for which the CBO date are available -- income gains among high-income households have dwarfed those of middle- and low-income households."

Here's the text of Bush's speech.

Tom Raum writes for the Associated Press: "The booming economy that President Bush paints is a far cry from the worrisome one increasingly portrayed by Democratic presidential candidates and party leaders.

"To them, there are worker insecurities, stagnant wage growth and soaring costs for health care and college.

"The vision of rival economies already is a main issue for the 2008 presidential and congressional races. Economists say both sides are right -- and wrong. It just depends on what numbers you summon. . . .

"'The president is right. The economy in aggregate is performing very well. So he's right to claim that the economy, looking from above, looks very good,' [Mark Zandi, chief economist at Moody's Economy.com] said. 'Democrats are also right. The fruits of this strong economy have largely accrued to higher income wealthier households.'"

In his interview with Cavuto, Bush lashed out against those who advocate increasing taxes on the rich, saying that's not what those advocates really mean.

Bush: "That's the old saw, you know, raise the taxes on the rich. And, when you try to raise taxes on the rich, you also raise taxes on small business owners, sole-proprietorships, Subchapter S corporations. You know, it turns out that these tax increases are going to have to reach fairly far down the income level to meet the spending appetite of the Democrats.'"

Executive Pay

Bush did take one, anemic shot at the super-wealthiest of the super-wealthy yesterday.

As Jim Rutenberg writes in the New York Times: "President Bush yesterday called on corporate boards to hold their chief executives more accountable by tying their pay to performance -- a new message from a president who is closely allied to the business community. . . .

"'America's corporate boardrooms must step up to their responsibilities,' he said. 'You need to pay attention to the executive compensation packages that you approve.'

"Mr. Bush's comments, made at one of Wall Street's great landmarks, Federal Hall National Memorial, were met with silence from an otherwise friendly crowd gathered to hear what the White House billed as a 'State of the Economy' speech."

But, writes Rutenberg: "Mr. Bush said he did not believe that the government should interfere in corporate governance, a swipe at Democratic plans to push legislation requiring shareholder votes on pay packages. Rather, he said he supported new rules by the Securities and Exchange Commission requiring greater disclosure of executive pay packages."

And this isn't actually anything new from Bush. As Demian McLean wrote for Bloomberg News back in October: "President Bush said he is 'astounded' by the size of some executive pay packages and urged companies to tie salaries to performance, while stopping short of advocating government action."

Intel Watch

Jeff Bliss writes for Bloomberg: "The Bush administration has failed to carry out the 9-11 Commission's recommendations aimed at improving the U.S. intelligence network, panel members said."

Michael Isikoff and Mark Hosenball write for Newsweek: "The Senate Intelligence Committee and the CIA may be headed for a new confrontation over an old issue: why an internal report documenting the agency's failures in the run up to the September 11 terror attacks is still being withheld from the public."

Mary Cheney Speaks

Katharine Q. Seelye writes in the New York Times: "Mary Cheney, the lesbian daughter of Vice President Dick Cheney, for the first time yesterday publicly defended her decision to become pregnant and asserted that same-sex couples were equally capable of raising children as heterosexual couples."

Cheney "gestured to her middle -- any bulge disguised by a boxy jacket -- and asserted: 'This is a baby. This is a blessing from God. It is not a political statement. It is not a prop to be used in a debate by people on either side of an issue. It is my child.'

"Ms. Cheney, 37, was speaking at Barnard College in Manhattan in a panel discussion sponsored by Glamour magazine. . . .

"Her father became testy last week during a CNN interview when the host, Wolf Blitzer, asked what he thought of conservatives, specifically James C. Dobson, founder of Focus on the Family, who are critical of his daughter's pregnancy. In refusing to answer, Mr. Cheney told his interviewer that he was 'over the line.'

"Ms. Cheney said in a brief interview after the panel discussion that she was not speaking for her father but that when she saw the CNN interview, she also felt Mr. Blitzer had crossed a line. 'He was trying to get a rise out of my father,' she said."

Late Night Humor

Jon Stewart explains the Libby trial.

Cartoon Watch

Mike Luckovich on how long can he go? Stuart Carlson on Planet Cheney

'We Are the Deciders'

In her final syndicated column, Molly Ivins, who died yesterday after a long battle with breast cancer, wrote as follows:

"We are the people who run this country. We are the deciders. And every single day, every single one of us needs to step outside and take some action to help stop this war. Raise hell. Think of something to make the ridiculous look ridiculous."

The Texas Observer has collected some of her writings and, now, tributes.

Ivins was a sharp-tongued iconoclast who referred to Bush as "Shrub." She was brilliant and brave and a great role model for all of us journalists who strive to cut through spin and obfuscation -- and tell it like it is. She'll be terribly missed.

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