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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Sunday, April 30, 2006

Media finally starting to report the President's systematic lawbreaking

(updated below)

On March 24, 2006, The Boston Globe published an article by Charlie Savage reporting that the President, after signing into law the bill which renewed the Patriot Act, issued a "signing statement" making clear that "he did not consider himself bound" to comply with various reporting provisions in the law and therefore reserved the right to violate them. The article was extraordinary because it noted that the Patriot Act signing statement was merely "the latest in a string of high-profile instances in which Bush has cited his constitutional authority to bypass a law" -- and the article tied that ideology of lawlessness to, among other things, the President's deliberate violations of FISA when ordering warrantless eavesdropping on Americans.

I discussed that Globe article in my book and described it as "an important milestone," because "it is one of the first truly comprehensive articles by an establishment media outlet to recognize the fact that the president has expressly seized the power to break the law, and is exercising that power enthusiastically and aggressively, in numerous ways." Once the reality of the president's claimed lawbreaking powers starts to be truly discussed in our national political dialogue, I believe there will finally be accountability for what this administration has done.

The Globe has today published an even more sweeping and significant article, this one also by Savage, reporting as clearly and unambiguously as I have seen on the fact that the President not only believes that he has the right to break the law but has been exercising that right with staggering frequency, in almost every area of significance (h/t Jill):

President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution.

Among the laws Bush said he can ignore are military rules and regulations, affirmative-action provisions, requirements that Congress be told about immigration services problems, ''whistle-blower" protections for nuclear regulatory officials, and safeguards against political interference in federally funded research.

Legal scholars say the scope and aggression of Bush's assertions that he can bypass laws represent a concerted effort to expand his power at the expense of Congress, upsetting the balance between the branches of government. The Constitution is clear in assigning to Congress the power to write the laws and to the president a duty ''to take care that the laws be faithfully executed" . . .

As has been clear from the beginning, and as Savage notes, the significance of the NSA scandal was never about eavesdropping. Its significance lay in the fact that the President got caught red-handed violating the law on purpose, because he believes he has the power to do so. To defend his conduct, the administration has been forced to parade those theories around out in the open, and as a result, it is only a matter of time before the public starts to realize how severe the crisis is that we have in our country:

But with the disclosure of Bush's domestic spying program, in which he ignored a law requiring warrants to tap the phones of Americans, many legal specialists say Bush is hardly reluctant to bypass laws he believes he has the constitutional authority to override. . . .

Many legal scholars say they believe that Bush's theory about his own powers goes too far and that he is seizing for himself some of the law-making role of Congress and the Constitution-interpreting role of the courts.

Phillip Cooper, a Portland State University law professor who has studied the executive power claims Bush made during his first term, said Bush and his legal team have spent the past five years quietly working to concentrate ever more governmental power into the White House.

''There is no question that this administration has been involved in a very carefully thought-out, systematic process of expanding presidential power at the expense of the other branches of government," Cooper said. ''This is really big, very expansive, and very significant."

For the first five years of Bush's presidency, his legal claims attracted little attention in Congress or the media. Then, twice in recent months, Bush drew scrutiny after challenging new laws: a torture ban and a requirement that he give detailed reports to Congress about how he is using the Patriot Act.

It is not hyperbole to say that these actions and theories are as antithetical to democracy as can be. The country intensely debates all sorts of controversial issues (torture, Patriot Act renewal, eavesdropping powers); legislative compromises are reached by the American people through their Congress, often over the objections of the President; the President signs those bills into law -- and then he simply decrees that those laws are irrelevant because he has the power to violate them at will:

Bush administration spokesmen declined to make White House or Justice Department attorneys available to discuss any of Bush's challenges to the laws he has signed.

Instead, they referred a Globe reporter to their response to questions about Bush's position that he could ignore provisions of the Patriot Act. They said at the time that Bush was following a practice that has ''been used for several administrations" and that ''the president will faithfully execute the law in a manner that is consistent with the Constitution."

But the words ''in a manner that is consistent with the Constitution" are the catch, legal scholars say, because Bush is according himself the ultimate interpretation of the Constitution. And he is quietly exercising that authority to a degree that is unprecedented in US history.

Bush is the first president in modern history who has never vetoed a bill, giving Congress no chance to override his judgments. Instead, he has signed every bill that reached his desk, often inviting the legislation's sponsors to signing ceremonies at which he lavishes praise upon their work.

Then, after the media and the lawmakers have left the White House, Bush quietly files ''signing statements" -- official documents in which a president lays out his legal interpretation of a bill for the federal bureaucracy to follow when implementing the new law. The statements are recorded in the federal register.

In his signing statements, Bush has repeatedly asserted that the Constitution gives him the right to ignore numerous sections of the bills -- sometimes including provisions that were the subject of negotiations with Congress in order to get lawmakers to pass the bill. He has appended such statements to more than one of every 10 bills he has signed.

''He agrees to a compromise with members of Congress, and all of them are there for a public bill-signing ceremony, but then he takes back those compromises -- and more often than not, without the Congress or the press or the public knowing what has happened," said Christopher Kelley, a Miami University of Ohio political science professor who studies executive power.

The entire article -- which I highly recommending reading -- details the numerous instances in which Congress has passed laws banning certain conduct, the President has signed those bills into law, only for the President not only to reserve the right to violate those laws but to then order that those laws by violated, systematically and repeatedly. As the Globe article reports with startling clarity, to describe the state of affairs we have in our country is to describe, by definition, a state of authoritarian lawlessness. We literally have a President who has been saying for years, right out in the open, that he can act without regard to the law whenever he wants, and we need to repeat that fact - and prove it - over and over until that debate is finally had. The Globe article advances that objective significantly.

It is not uncommon for a President to refrain from executing a law which he believes, and states, is unconstitutional. Other Presidents have invoked that doctrine, although Bush has done so far more aggressively and frequently. But what is uncommon - what is entirely unprecedented - is that the administration's theories of its own power arrogate unto itself not just the right to refrain from enforcing such laws, but to act in violation of those laws, to engage in the very conduct which those laws criminalize, and they do so secretly and deceitfully, after signing the law and pretending that they are engaged in the democratic process. That is why the President has never bothered to veto a law -- why bother to veto laws when you have the power to violate them at will?

I have pointed out many times before that scandals which harm or bring down a presidency do not develop overnight. Americans have to really be persuaded that there is serious and deliberate wrongdoing in order to demand that meaningful action be taken. But that is clearly starting to happen, and the Globe and Charlie Savage should be congratulated for that rarest of acts -- journalists who are fulfilling their journalistic purpose by informing Americans as to what this government really is doing.

UPDATE: One of the principal tactics used over the last five years by Bush defenders to transform the president, our public servant, into some sort of monarchical figure is the endless, craven effort to refer to him as "The Comamnder-in-Chief," in order to implicitly bestow upon him an aura of elevated, militaristic glory which renders not only disrespect towards the President, but also mere criticism of him, somehow inappropriate, even unpatriotic. In that regard, it was extremely refreshing to see Stephen Colbert's stand-up routine last night (video here - transcript here) at the White House Correspondent's Dinner. Pam Spaulding provides an excellent discussion of that event, as does Joe Gandelman.

As Pam notes, a commenter at the site of Jonah's mom, Lucianne Goldberg, said that "Steve Colbert was utterly disgusting. . . He was rude, snarky and unpatriotic toward the President and First Lady." One can be unpatriotic towards one's country, but not to the Leader, and certainly not by expresing criticism of the Leader, even to his face. The efforts to shield the President from criticisms of any sort has been one of the most significant factors enabling the lawbreaking pathology of this president, who clearly has come to see himself as a shielded king. The belief that an American citizen is unpatriotic by virtue of criticizing and opposing the president is one of the most pernicious ideas to take hold in some time. What Colbert did took real courage and - like Savage - he should be commended for reminding us of the kind of country we are supposed to have, and the kind of country we aren't supposed to have and, until this administration, never had.

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