Is Bush Signing Away the Constitution?

Last March, the U.S. 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.

Late last year, Congress approved legislation declaring that U.S. interrogators cannot torture prisoners or otherwise subject them to cruel, inhuman, and degrading treatment.

But President Bush's signing statement said the president, as commander in chief, can waive the torture ban if he decides that harsh interrogation techniques will assist in preventing terrorist attacks.

These are but two examples of more than 100 signing statements containing over 500 constitutional challenges President Bush has added to new laws passed by the Congress – many times more than any of his predecessors.

While he has never vetoed a law, many constitutional scholars say the president is, in effect, exercising a "line-item veto" by giving himself authority to waive parts of laws he doesn't like.

The practice has infuriated members of Congress in both parties because it threatens to diminish their power. They consider it an assault on the notion that the Constitution establishes the United States' three branches of government – legislative, judicial, and executive – as co-equal.

Further fueling congressional anger is 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 NSA program was revealed by the New York Times last December. Since then, newspapers have disclosed other secret programs, including amassing millions of domestic phone call records and examining perhaps thousands of financial transactions in an effort to track and interrupt possible terrorist activity.

A member of Bush's own party, Sen. Arlen Specter of Pennsylvania, chairman of the Senate Judiciary Committee, opened hearings on the subject this week. He said, "The real issue here is whether the president can cherry-pick what he likes."

And the senior Democrat on the committee, Sen. Patrick Leahy of Vermont, said, "The president hasn't vetoed any bills, but basically he has done a personal veto. He has said which laws he will not follow and … put himself above the law, even the same law he has signed."

The hearing is part of a continuing effort by many in Congress to reclaim authority that they say the president has usurped as he has expanded the power of the executive branch.

Bush claims that the constitution gives the executive branch of government "inherent power" to do "whatever it takes" to protect the people of the United States.

Testifying at the Judiciary Committee hearing on behalf of the Bush administration, Michelle Boardman, deputy assistant attorney general in the Office of Legal Counsel at the U.S. Department of Justice, said that signing statements serve a "legitimate and important function" and are not an abuse of power.

"Congress should not fear signing statements, but welcome the openness they provide," she said. "The president must execute the law faithfully, but the Constitution is the highest law of the land. If the Constitution and the law conflict, the president must choose," she said.

But many constitutional scholars disagree.

Among them is Barbara Olshansky, director of the Global Justice Initiative at the Center for Constitutional Rights, a prominent advocacy group. She told IPS, "I think it is hard evidence of [Bush'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."

She added, "Many of the laws that Bush has decided to bypass or overwrite by this method involve the military, where he once again invokes the idea that as commander in chief he can ignore any law that seeks to regulate the military."

Another opposition view came from Prof. Edward Herman of the University of Pennsylvania, who told IPS, "The brazenness of Bush's use of this practice is remarkable. But 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," he added.

Signing statements are not new – their use started with the fifth U.S. president, James Monroe (1817-1825), and from that time they were used sparingly and mostly for rhetorical purposes. Until Ronald Reagan became president in 1980, only 75 statements had been issued. Reagan and his successors, George H. W. Bush and Bill Clinton, made 247 signing statements between them.

But President Bush has taken the practice to a new level, attracting criticism both for the number of statements he has issued as well as for his apparent attempts to nullify any legal restrictions on his actions

Democratic members of both the House of Representatives and the Senate are viewing President Bush's signing statements as a dangerous overreach of presidential power – and a campaign issue for the congressional elections in November.

Last week House Democrats introduced a resolution requiring the president to notify Congress if the president "makes a determination to ignore a duly enacted provision of law."

And Senator Edward M. Kennedy, known as the "lion" of the Senate, declared this week, "For far too long, Congress has stood by and watched while President Bush has slowly expanded the unilateral powers of the presidency at the expense of the rest of the government and the people."

The U.S. legal community is also concerned. Earlier this month, the American Bar Association's board of directors formed a Task Force on Presidential Signing Statements and the Separation of Powers Doctrine to review the use of signing statements and whether or not this use is consistent with the U.S. Constitution.

Bush's signing statements have covered a wide variety of subjects, ranging from the ability of military lawyers to give independent legal advice to their commanders to timely transmission of government-funded scientific information to Congress to rules for firing a government employee whistleblower who tells Congress about possible wrongdoing.

But until President Bush's signing statement on the anti-torture legislation, the subject went virtually unreported by the U.S. press. According to Phillip Cooper, a Portland State University public administration professor who is an authority on signing statements, "I think one of the important things here is for reporters to apply their journalistic instincts to this story."

Cooper concludes that the Bush White House "has very effectively expanded the scope and character of the signing statement not only to address specific provisions of legislation that the White House wishes to nullify, but also in an effort to significantly reposition and strengthen the powers of the presidency relative to the Congress."

by William Fisher

http://www.antiwar.com/ips/fisher.php?articleid=9222

(Inter Press Service)

The High Price of American Gullibility

What explains the gullibility of Americans, a gullibility that has mired the U.S. in disastrous wars in Iraq and Afghanistan and that promises war with Iran, North Korea, and a variety of other targets if neoconservatives continue to have their way?

Part of the explanation is that millions of conservatives are thrilled at the opportunity to display their patriotism and to show their support for their country. Bush's rhetoric is perfectly designed to appeal to this desire. "You are with us or against us" elicits a blind and unquestioning response from people determined to wear their patriotism on their sleeves. "You are with us or against us" vaccinates Americans against factual reality and guarantees public acceptance of administration propaganda.

Another part of the explanation is that emotional appeals have grown the stronger as the ability of educated people to differentiate fact from rhetoric declines. The Bush administration blamed 9/11 on foreign intelligence failures; yet, the administration has convinced about half of the public that mass surveillance of American citizens is the solution!

Many Americans have turned a blind eye to the administration's illegal and unconstitutional spying on the grounds that, as they themselves are doing nothing wrong, they have nothing to fear. If this is the case, why did our Founding Fathers bother to write the Constitution? If the executive branch can be trusted not to abuse power, why did Congress pass legislation establishing a panel of federal judges (ignored by the Bush administration) to oversee surveillance? If President Bush can decide that he can ignore statutory law, how does he differ from a dictator? If Bush can determine law, what is the role of Congress and the courts? If "national security" is a justification for elevating the power of the executive, where is his incentive to find peaceful solutions?

Emotional appeals to fear and to patriotism have led close to half of the population to accept unaccountable government in the name of "the war on terrorism." What a contradiction it is that so many Americans have been convinced that safety lies in the sacrifice of their civil liberties and accountable government.

If so many Americans cannot discern that they have acquiesced to conditions from which tyranny can arise, how can they understand that it is statistically impossible for the NSA's mass surveillance of Americans to detect terrorists?

Floyd Rudmin, a professor at a Norwegian university, writing at CounterPunch.org applies the mathematics of conditional probability, known as Bayes' Theorem, to demonstrate that the NSA's surveillance cannot successfully detect terrorists unless both the percentage of terrorists in the population and the accuracy rate of their identification are far higher than they are. He correctly concludes that "NSA's surveillance system is useless for finding terrorists."

The surveillance is, however, useful for monitoring political opposition and stymieing the activities of those who do not believe the government's propaganda.

Another reason for the gullibility of Americans is their lack of alternative information to government propaganda. The independence of print and TV media disappeared in the media consolidations of the 1990s. Today a handful of large corporations own the traditional media. The wealth of these corporations consists of broadcast licenses, which the companies hold at the government's discretion. Newspapers are run by corporate executives, whose eyes are on advertising revenue and who shun contentious reporting. The result is that the traditional media are essentially echo chambers for government propaganda.

The Internet and the foreign news media accessible through the Internet are the sources of alternative information. Many Americans have not learned to use and to rely on the Internet for information.

Many Americans find the government's message much more reassuring than the actual facts. The government's message is: "America is virtuous. Virtuous America was attacked by evil terrorists. America is protecting itself by going to war and overthrowing regimes that sponsor or give shelter to terrorists, erecting in their place democracies loyal to America."

Sugarcoated propaganda doesn't present Americans with the emotional and mental stress associated with the hard facts.

In National Socialist Germany, by the time propaganda lost its grip, Germans were in the hands of a police state. It was too late to take corrective measures. Not even the military could correct the disastrous policies of the executive. In the end, Germany was destroyed. Does a similar fate await Americans?

by Paul Craig Roberts

http://www.antiwar.com/roberts/?articleid=9216