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An Imminent Threat (to the Constitution)

By Dan Froomkin
Special to washingtonpost.com
Monday, July 24, 2006; 2:10 PM

A blistering report out today from a blue-ribbon legal panel dramatically establishes how President Bush's use of signing statements to assert his right to ignore legislation passed by Congress undermines the rule of law and the constitutional system of separation of powers.

The report, from an American Bar Association task force, goes a long way toward establishing the parameters for what could be a ferocious and consequential debate -- or an unparalleled acquiescence to an executive-branch power grab.

The task force members outline a clear path to the restoration of the traditional balance of powers. But will the Republican-controlled Congress step up to the plate?

And will today's coverage of the report by the traditional media lead to a continued examination of this important story? Or will the press allow what the task force describes as an imminent threat to the Constitution slide back off the national agenda?

Here is the full report . Here is some background on the panel's members . Here is a news release . I wrote at some length about signing statements last month over at NiemanWatchdog.org . Here is Charlie Savage 's seminal Boston Globe piece from April. Here is an archive of signing statements.

The Coverage

Michael Abramowitz writes in The Washington Post: "A panel of legal scholars and lawyers assembled by the American Bar Association is sharply criticizing the use of 'signing statements' by President Bush that assert his right to ignore or not enforce laws passed by Congress.

"In a report to be issued today, the ABA task force said that Bush has lodged more challenges to provisions of laws than all previous presidents combined. . . .

"The report seemed likely to fuel the controversy over signing statements, which Bush has used to challenge laws including a congressional ban on torture, a request for data on the USA Patriot Act, whistle-blower protections and the banning of U.S. troops in fighting rebels in Colombia."

Charlie Savage , the Globe reporter widely credited with bringing the story to national attention, writes today: "President Bush should stop issuing statements claiming the power to bypass parts of laws he has signed, an American Bar Association task force has unanimously concluded in a strongly worded 32-page report that is scheduled to be released today. . . .

"Citing an expansive theory of executive power that is not supported by most legal scholars, the administration has declared that the Constitution puts Bush beyond the reach of Congress in military matters and executive branch operations. . . .

"The Constitution requires the president either to veto a bill in its entirety -- giving Congress a chance to override his decision -- or to sign the bill and enforce all its components as Congress wrote them, they said.

" 'A line-item veto is not a constitutionally permissible alternative, even when the president believes that some provisions of a bill are unconstitutional. . . . A president could easily contrive a constitutional excuse to decline enforcement of any law he deplored, and transform his qualified veto into a monarch-like absolute veto,' the panel wrote."

The report states that as of July 11, Bush had raised objections to a total of 807 provisions in more than 100 laws, on the grounds that they infringed on his prerogatives.

Robert Pear writes in the New York Times: "The panel said Mr. Bush's signing statements often used the same formulaic language, with 'no citation of authority or detailed explanation.' It urged Congress to pass a law requiring the president to 'set forth in full the reasons and legal basis' for any signing statement in which he says he can disregard or decline to enforce a statute.

"In another recommendation, the panel suggested legislation to provide for judicial review of signing statements. It acknowledged that the Supreme Court had been reluctant to hear cases filed by members of Congress because lawmakers generally did not suffer the type of concrete personal injury needed to create a 'case or controversy.' But the panel said that 'Congress as an institution or its agents' should have standing to sue when the president announces he will not enforce parts of a law."

Other Ways to Say No

Sheryl Stolberg writes in the New York Times: "Conventional wisdom holds that Mr. Bush went more than five years without exercising his veto power simply because he did not have to: the Republicans who control Congress gave him everything he wanted.

"That is, for the most part, true. But Mr. Bush has also found ways of exercising control over (or circumventing) Congress without using the veto. When Mr. Bush wanted to empower federal authorities to monitor the international communications of suspected terrorists, he did so by issuing a secret executive order, avoiding a possible legislative battle -- and the potential veto that might go along with it.

"And when Congress last year passed a legislative amendment barring cruel, inhumane and degrading treatment of detainees in American custody, Mr. Bush -- who had threatened a veto but ultimately backed down -- tacked a 'signing statement' onto the measure, asserting that he could interpret the amendment as he deemed fit with his constitutional authority as commander in chief.

" 'President Bush has vetoed things without vetoing them,' said Julian Zelizer, a professor of history at Boston University. 'He's kind of found alternative ways in which he can basically say no to Congress without publicly saying no, or publicly having the confrontation.' "

And David Cay Johnston , also in the New York Times, illustrates yet another way Bush can act unilaterally: "The federal government is moving to eliminate the jobs of nearly half of the lawyers at the Internal Revenue Service who audit tax returns of some of the wealthiest Americans, specifically those who are subject to gift and estate taxes when they transfer parts of their fortunes to their children and others. . . .

"Sharyn Phillips, a veteran I.R.S. estate tax lawyer in Manhattan, called the cuts a 'back-door way for the Bush administration to achieve what it cannot get from Congress, which is repeal of the estate tax.' "

Diplomacy, Bush Style

For its cover story this week, Newsweek was granted unusual access to Bush during his recent trip -- including "four free-wheeling interviews and hundreds of candid photographs" -- even as yet another corner of the Middle East erupted in violence.

So did the magazine emerge with a case study in White House decision-making? No such luck. Apparently, that remained off limits. (Or happened off stage.)

There is some interesting stuff here, however. My takeaway from Richard Wolffe 's piece is that Bush's worldview has not evolved one bit since Sept. 11, and that while the president may have gotten better at giving the impression of being diplomatic, true diplomacy still eludes him.

Wolffe writes that "Bush thinks the new war vindicates his early vision of the region's struggle: of good versus evil, civilization versus terrorism, freedom versus Islamic fascism. He still believes that when it comes to war and terror, leaders need to decide whose side they are on.

"But after Iraq, many of those leaders find it hard to rush to Bush's side, and he has struggled to win them back. Over the past three years, since the invasion, his options have narrowed; circumstances have taught him to speak the language of diplomacy more fluently. Yet he still trusts his gut to tell him what's right, and he still expects others to follow his lead.

"For Bush, diplomacy is not the art of a negotiated compromise. It's a smoother way to get where he wants to go."

Here's the scene on the flight to the St. Petersburg summit: "Bush may deplore the loss of life, but he also sees the crisis as an extraordinary opportunity. 'I view this as the forces of instability probing weakness. I think they're testing resolve in many ways,' he tells Newsweek. . . . 'Sometimes, in order to get others to act with us,' he says, 'there has to be conditions on the ground that make the case better than I can make it.' It hasn't always turned out that way: in Iraq, conditions on the ground have long conspired against Bush and driven allies away."

But days later, when Bush is happily ensconced on Air Force One on his way home, nothing has really been resolved.

Wolffe writes: "[A]s the crisis in Lebanon deepens, Bush's allies and critics question the depth of his commitment to diplomacy. Is he really embracing the United Nations or using the slow diplomatic process to buy more time for Israeli forces to destroy Hizbullah?"

Odds and Ends

Here's Bush on his own charm: "I guess one of the things I've learned from my family, both Father and Mother -- in many ways, it's interesting, it's from Mother -- is the ability to get people to relax, to try to put people at ease."

There was plenty of reason to assume that the Russians had bugged pretty much everything, and Wolffe writes: "The only totally secure place is the president's armored, soundproofed limo, which the White House has airlifted to Russia. Whenever Bush's advisers want to strategize about Putin, they're forced to sit in the car, parked in the driveway."

And while there's nothing in this story that sheds any light on how the big decisions were made, here's one image of Bush not as the Decider, but as the (impatient) Deliverer: "Bush has a full day ahead . . . but first his aides have a long list of subjects to cover with him. In a prebriefing session they try to cram him with talking points on a vast array of issues. Bush, who hates to get bogged down in the weeds, has heard enough. 'How long do you want this list to be?' he snaps."

How Revealing?

Wolffe writes in his piece that in his interviews, Bush was "unusually relaxed, revealing a president by turns playful and pensive, stubborn and accommodating, as he grappled with the biggest foreign crisis of his second term."

But Greg Sargent blogs for the liberal American Prospect: "Despite all this access, there's no evidence at all that Bush was asked a single tough question during the 'four freewheeling interviews' granted to Newsweek. It's also unclear from the piece whether Bush even made a single meaningful decision at all during his 'handling' of this crisis, though this seems to be lost on the article's writer and editors. The point is, access like this rarely grants readers much in the way of genuine insight or understanding, and this piece is no exception."

Me, I'd like to see the interview transcripts. Did Bush duck the tough questions? Did he answer like a man who was in fact making decisions, or was being informed of them?

Pressure From the Saudis

Michael Abramowitz and Robin Wright write in The Washington Post: "The Saudi foreign minister personally urged President Bush yesterday to intervene to stop the violence in Lebanon, the most direct sign of mounting frustration among key Arab states with what they see as a hands-off U.S. posture toward Israeli strikes against Hezbollah.

"In an Oval Office meeting yesterday afternoon, Prince Saud al-Faisal said, he delivered a letter to Bush from Saudi King Abdullah asking for U.S. help in arranging an immediate cease-fire, a stance U.S. officials have repeatedly rejected on the grounds that it is premature. U.S. officials would not comment directly on the request, saying only that the two sides discussed the humanitarian situation, reconstruction and how to end the violence."

While there's no evidence that the visit will have any effect on U.S. policy, it is worth noting that Bush cut short his planned stay in Crawford to meet with the Saudis.

Fiasco

Washington Post reporter Thomas E. Ricks is out with a new book called Fiasco: The American Military Adventure in Iraq.

On Meet the Press ( transcript ; video ), host Tim Russert read a passage from the book: "This book's subtitle terms the U.S. effort in Iraq an adventure in the critical sense of adventurism -- that is, with the view that the U.S.-led invasion was launched recklessly, with a flawed plan for war and a worse approach to occupation. Spooked by its own false conclusions about the threat, the Bush administration hurried its diplomacy, short-circuited its war planning, and assembled an agonizingly incompetent occupation. None of this was inevitable. It was made possible only through the intellectual acrobatics of simultaneously 'worst-casing' the threat presented by Iraq while 'best-casing' the subsequent cost and difficulty of occupying the country.' "

Russert asked Ricks: "How long do you think we'll be there?"

Ricks: "Ten to 15 years, at least."

The Post ran excerpts today and Sunday that depict indiscriminate arrests and abuse as a widespread phenomenon, clearly the result of policies established at upper echelons.

And Human Rights Watch is out with a report entitled "No Blood, No Foul," in which soldiers describe how detainees were routinely subjected to severe beatings, painful stress positions, severe sleep deprivation, and exposure to extreme cold and hot temperatures.

How high does responsibility for all this go? We still don't know. But it may be time for the press to assume that it started at the top, and look for evidence that it didn't -- rather than the other way around.

White House v. NBC

It's not quite open war in the White House press room, but sometimes it comes close. On Friday morning, NBC Today's Show ambushed White House press secretary Tony Snow. Just before Snow began a live interview from the North Lawn, Matt Lauer showed a highly critical segment from David Gregory .

"The Middle East in flames. From Iraq to Lebanon, the region has reached a new boiling point. For the White House another crisis in a corner of the world that has consumed a presidency. . . .

"[I]t wasn't supposed to be this way. The president's foreign policy was designed do make the Middle East safer. It's not, and in Beirut the anger is directed not just at Israel, but at the US. Crisis after crisis has undermined the Bush doctrine. Preemptive war in Iraq to set an example and perhaps open a new chapter of peace. . . .

"Iraq on the brink of civil war; a rising Iran defying the world over nuclear weapons and flexing its muscles; and missile tests by North Korea in violation of diplomatic demands. Even the president's conservative allies say the world has become more unstable. 'Where,' they now ask, 'is the president's nerve?' "

As his example, Gregory quoted Max Boot of the Council on Foreign relations as saying: "We should be more aggressive in trying to make clear to Iran and Syria that their aggressive actions will have consequences."

The White House press office later that day responded to Gregory's report with one of its " Setting The Record Straight " memos entitled "President Bush's Foreign Policy Is Succeeding."

And as evidence that conservatives do stand behind Bush's policies, the press office quoted the selfsame Max Boot , who in a Los Angeles Times op-ed wrote: "Our best response is exactly what Bush has done so far -- reject premature calls for a cease-fire and let Israel finish the job."

Then on Sunday's "Meet the Press," Russert grilled White House Chief of Staff Josh Bolten about the White House's apparent endorsement of Boot's article, which also called on Israel to attack Syria. "Is that administration policy?" Russert asked.

Bolten's reply: "That, that article is -- I mean, was sent around as a, as a reflection of some of the conservative columnist support for Israel. But, no. . . . "

Specter Gets Defensive

As I've written here and there , the so-called "retreat" by the White House on domestic spying looks more like yet another example of the Senate Judiciary Committee chairman being outfoxed by that wily vice president.

The chairman himself, Arlen Specter , writes in a Washington Post op-ed: "The negotiations with administration officials and the president himself were fierce. . . .

"President Bush's record of seeking to expand Article II power has been a hallmark of his administration. The president and vice president have vociferously argued that the administration had the authority for the program without any judicial review. Bush's personal commitment to submit his program to [the Foreign Intelligence Surveillance Court] is therefore a major breakthrough."

And, he writes: "If someone has a better idea for legislation that would resolve the program's legality or can negotiate a better compromise with the president, I will be glad to listen."

Maura Reynolds write in the Los Angeles Times that Specter told her on Friday that Bush "overruled his staff" in agreeing to the deal.

Politics Watch

The Washington Post kicks off its Bellwether Project, examining the key issues in the battle for Congress.

" The Elephant in the Room " is "How Big a Problem is President Bush for the GOP?"

Nancy Benac reports for the Associated Press: "Vice President Dick Cheney on Friday pointed to the fighting between Israel and Hezbollah as fresh evidence of the ongoing battle against terrorism that underscores the need to keep President Bush's Republican allies in control of Congress."

And me, I just got an e-mail from Bush (well, me and everyone else on the Republican National Committee mailing list) stating: "Dan, nothing threatens our hard-won reforms and economic prosperity more than a Democrat victory this November."

But What Did the Other Guy Say?

The Associated Press reports: "President Bush called the latest American winner of the Tour de France, Floyd Landis, on Sunday afternoon to congratulate him and invite him to the White House.

" 'Must feel great,' Bush told the cyclist, who rode with an injured hip. 'Everybody's proud of you. You showed amazing strength and courage.' "

But blogger Josh Marhsall notes that at a press conference after his historic ride Thursday, Landis's cell phone started to ring.

"Reporter: Is that Bush?

"Landis (laughing): I doubt it. I'll hang up."

Open Microphone Redux

Al Kamen writes in The Washington Post: "A British television station says it has identified the person responsible for that open microphone catching a little unvarnished President Bush at the closing G-8 summit lunch in St. Petersburg. The culprit? Shockingly enough, they finger Russian President Vladimir Putin."

And a Los Angeles Times editorial notes that "when it came to outrage over the president's language, nothing ever really hit the fan."

This Just In

James Rainey writes in the Los Angeles Times that despite the furor over the New York Times stories about Bush's secret domestic surveillance program, the White House is actually still talking to New York Times reporters.

Doonesbury Watch

Garry Trudeau on Bush's decision-making process.

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