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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.

Thursday, June 29, 2006

Media, others finally recognizing the President's seizure of law-breaking powers

There is no question that the President's radical theories of law-breaking and executive power are now, finally, being unambiguously discussed and even debated by the Congress and the national media (beyond The Boston Globe's Charlie Savage). Due in large part to the Judiciary Committee hearings held by Sen. Arlen Specter regarding the President's practice of issuing "signing statements" proclaiming his right to break various laws, the type of discussion which we ought to have had long ago -- about whether we want to change the type of government we have in order to vest unlimited executive power in President Bush (and then subsequent presidents) -- is finally starting to emerge. Even conventional wisdom-spouting Jeff Greenfield on CNN reported:

The "Boston Globe" counts more than 750 instances where the president has reserved the right to ignore any statute that conflicts with his interpretation of the Constitution. Critics, including the libertarian Cato Institute, accused the president of a, quote, "push for power unchecked by either the courts or Congress."

This is not an issue Democrats should fear. Quite the contrary, as polls show an increasing dislike and distrust of one-party Republican rule. Americans generally believe in balanced and restrained power and dislike unchecked rulers and extremism. If this administration believes in anything, it is unchecked power and extremism, and virtually every major issue of controversy -- from the administration's systematic, unprecedented attacks on a free press to its claimed right to violate the law -- illustrates the excesses and dangers which inevitably arise when one political faction can exercise power without meaningful restraints.

The Bush administration and its Congressional allies have clearly fallen victim to the hubris that comes from operating without limits, and Americans know this and are clearly disturbed by it. They want limits on one-party rule, and a Democratic takeover of one or both houses of Congress is, Democrats can and should argue, the only way to restore checks and balances to our government. The Supreme Court's decision today in Hamdan v. Rumsfeld -- which held that (a) courts retain the right to rule on the legality of military tribunals at Guantanamo; (b) the President exceeded his authority in the creation of those tribunals; and (c) the rules of the tribunals violate both military justice law and the Geneva Convention -- should serve to further highlight how extremist and lawless this administration has become (more on this very significant decision later, once I have had a chance to read it).

With the media slowly awakening to these issues, some Senators seem to recognize just how profound a threat this administration has become. Here is Sen. Patrick Leahy at the Judiciary Committee hearing, stating the case as clearly as it should be:

"We are at a pivotal moment in our Nation's history, where Americans are faced with a President who makes sweeping claims for almost unchecked Executive power. . . .

"[T]ime and again, this President has stood before the American people, signed laws enacted by their representatives in Congress, while all along crossing his fingers behind his back."

Former Reagan Justice Department official and life-long conservative Bruce Fein said this:

"Presidential signing statements are extra-constitutional and riddled with mischief. . . I would further recommend that Congress enact a statute seeking to confer Article III standing on the House and Senate collectively to sue the President over signing statements that nullify their handiwork, at least in circumstances where there is no other plausible plaintiff who would enjoy standing. . . . . If all other avenues have proved unavailing, Congress should contemplate impeachment. . . . "

And as Savage reports, there is now widespread discussion that Congress could sue the President over the signing statements, seeking a judicial declaration that the President does not have the right under our system of government to break the law. Unlike at other hearings, the low-level Bush lawyer sent to defend the "signing statements" received little support from the Senators on the Judicary Committee: "Throughout the hearing, Boardman received little friendly questioning from the dais beyond that of Senator John Cornyn, Republican of Texas . . ."

Senate Democrats recognized the significance of the hearings -- which forced a much more widespread public discussion of these issues than we have previously had, by far, and which even forced the White House to try to defend the President's practice of declaring his power to break the law:

The Democrats repeatedly praised Specter, as a Republican, for holding the hearing. The ranking Democrat, Senator Patrick Leahy of Vermont, said that the administration and its defenders were showing "utter contempt" for the concerns of Congress about Bush's expansive theory about his own constitutional powers.

Despite the uneven attendance, the hearing served to focus greater attention on the administration's legal claims. At the White House, Press Secretary Tony Snow denied that Bush was using signing statements as backdoor way to "win" on issues after failing to persuade Congress to write legislation to his liking.

Snow also insisted that the president was merely fixing "relatively minor" constitutional flaws that Congress had "unwittingly" included in bills during the lawmaking process.

As I have said countless times, the more open and public discussion of these issues, the better. Americans know instinctively that we do not have a system of Government where the President can sign a Congressionally enacted law and then claim the right-- and exercise the right -- to break the law. The President's assertion of these powers reflects an arrogance of power and a pretense to monarchical entitlements which Americans simply dislike.

Having said that, it is the case, I believe, that there is an undue emphasis on the significance of signing statements. By themselves, signing statements have no legal or constitutional significance. The issuance of signing statements changes nothing. They do not create presidential powers nor do they confer rights of any kind. They are really nothing more than declarations of presidential belief, documents which state how the President understands a particular law.

In that regard, I believe these signing statements actually perform a critically important service. They bring out into the open the theories of monarchical power which this administration has adopted. By expressly stating in the signing statements that he has the right to violate these law, the President is explicitly acknowledging that he has seized these powers. The signing statement itself is not the instrument by which he has seized those powers, but is merely a reflection -- an overt acknowledgment -- of the fact that the President has, in fact, seized those powers. It is the powers themselves, and not the statements in which they are asserted, that are so significant.

But there is no doubt that public debate over the President's extremist theories is, finally, intensifying, and that is a development that should be celebrated by anyone who believes that we ought to adhere to our constitutional traditions. The President has been able to claim unlimited powers only because most Americans have been unaware that he has done so. Defending these theories out in the open is not something this administration wants to do -- why would it? -- and now that the press is beginning to understand what is truly at stake, the opportunity exists to force them to do so.

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