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.

Wednesday, May 03, 2006

Specter to hold hearings on Bush's lawbreaking powers

We are treated today to a small though vivid illustration of how our democracy is supposed to work. On Sunday, The Boston Globe's Charlie Savage published a lengthy and exceedingly detailed article reporting that "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."

Today, Republican Sen. Arlen Specter, Chair of the Senate Judiciary Committee, vowed to hold hearings on this rather startling (though not exactly new) presidential lawbreaking crisis in our country. According to Savage's article today (h/t CLG):

The chairman of the Senate Judiciary Committee, accusing the White House of ''very blatant encroachment" on congressional authority, said yesterday he will hold an oversight hearing into President Bush's assertion that he has the power to bypass more than 750 laws enacted over the past five years.

''There is some need for some oversight by Congress to assert its authority here," Arlen Specter, Republican of Pennsylvania, said in an interview. ''What's the point of having a statute if . . . the president can cherry-pick what he likes and what he doesn't like?"

Specter said he plans to hold the hearing in June. He said he intends to call administration officials to explain and defend the president's claims of authority, as well to invite constitutional scholars to testify on whether Bush has overstepped the boundaries of his power.

To recap: a Republican Senator is vowing to hold hearings because the President of the United States has embraced theories which maintain that he has the right to break the law and has, consistent with those theories, been breaking the law repeatedly and deliberately. Maybe some journalists other than Savage and The Boston Globe could tell their readers about that extremely significant fact.

In preparing his story, Savage sought, and obtained, a response from the White House to Specter's announcement, and -- as a good journalist should -- then promptly informed his readers of the false and misleading nature of the White House's claims:

Dana Perino, a White House spokeswoman, said via e-mail that if Specter calls a hearing, ''by all means we will ensure he has the information he needs." She pointed out that other presidents dating to the 19th century have ''on occasion" issued statements that raise constitutional concerns about provisions in new laws.

But while previous presidents did occasionally challenge provisions in laws while signing them, legal scholars say, the frequency and breadth of Bush's use of that power are unprecedented.

Bush is also the first president in modern history who has never vetoed a bill, an act that gives public notice that he is rejecting a law and can be overridden by Congress. Instead, Bush has used signing statements to declare that he can bypass numerous provisions in new laws.

That the President has seized the power to break the law isn't news to everyone. Senator Feingold, for instance, introduced a Resolution to censure the President precisely because he is engaging in ongoing illegal behavior. Sen. Feingold explained at the time what ought to have needed no explanation - that we simply do not have the option of allowing the President to violate the law with impunity if we want to continue to be a country that lives under the rule of law. That move provoked disapproval and even scorn from virtually all of the national press and from most members of the Senate, including those within his own party and from Sen. Specter himself.

But perhaps Specter -- who just last week threatened to cut off funding for the NSA program if the Administration continues its obstruction of Congressional investigations into that program -- has had enough. As Savage pointed out in his article last Sunday: "For the first five years of Bush's presidency, his legal claims attracted little attention in Congress or the media." Up until now, most people chose to ignore the fact that the President was acting in accordance with these radical theories of lawlessness.

But the more out in the open those theories become, the less possible it will to ignore them. It is hard to imagine even Americans who are apathetic (or, as in Specter's case, craven and meek) expressing indifference over the fact that the President has -- literally and expressly -- declared himself to be outside of, and above, the law.


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