Obeying the Law Posted by Morton H. Halperin

While signing the bill containing the McCain anti-torture amendment this week, President Bush made explicit his view of the constitution.  It is a frightening position which threatens the separation of powers which is at the heart of our government.   

In short, the President asserts that he can decide which laws he should obey. If he believes that legislation violates what he calls the unitary presidency he will not veto the bill, but rather he will simply ignore the law. Sometimes he does that publicly and on other occasions he pretends to be following the law while secretly operating in defiance of it.

Presidential signing statements were, in fact, invented by Judge Alito, whose hearings for a Supreme Court seat starts on Monday.  The original purpose was to enable the President to participate in creating legislative history.  Now President Bush uses the statements to identify some of the provisions he plans to ignore.

There are several such assertions in this single signing statement, but I want to comment only on the provision relating to torture.  Here is what the President said about that provision:

"The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks."

In other words, if the President wants to direct the CIA to torture captives held in secret prisons around the world, he will feel free to do so.  Senators McCain and Warner reacted sharply to this extraordinary challenge to the Congress's constitutional right to enact the laws, saying this:

“We believe the President understands Congress’s intent in passing by very large majorities legislation governing the treatment of detainees included in the 2006 Department of Defense Appropriations and Authorization bills. The Congress declined when asked by administration officials to include a presidential waiver of the restrictions included in our legislation. Our Committee intends through strict oversight to monitor the Administration’s implementation of the new law.”

It is not hyperbole to say that the outcome of this struggle and one over warrantless electronic surveillance will determine whether 9/11 fundamentally changed the balance of power between the President and the Congress and truly created an imperial presidency.

As the ACLU has pointed out in hard hitting ads, on June 9, 2005, the President stated that "wiretaps and search warrants require a high level of proof and permission from a judge."  That is what FISA requires, but not what the government has done.  We now know that President Bush authorized a program of warrantless surveillance with a very low level of proof.  When the program was made public by the New York Times, the President's response was to denounce the printing of the story and defiantly assert that he intends to continue the program. Congress must stop him and hold him accountable for lying to the public and violating the  law. 

Comments

[doc]

"Congress must stop him and hold him accountable for lying to the public and violating the law. "

well, i'm with you...in theory. more, i believe the president should have been impeached a couple of years ago...but:

i'm sorry, are we from the same planet? you're suggesting that the same congress that has tacitly acceded to every whim of george the younger actually stand up and do the right thing? impeach him? even slap his hand, for krist’s sake?

you obviously live in a world where people take responsibility for their actions and behave as adults rather than this one, where most of our leaders are bent, liars, stupid, power-hungry or some ugly combination thereof…