Takeover, page 31
Many of the laws Bush said he could bypass—including the McCain Torture Ban—involved the military and intelligence agencies. On at least four occasions during the Bush-Cheney tenure, Congress passed laws forbidding U.S. troops from engaging in combat in Colombia, where the U.S. military was advising the government in its struggle against narcotics-funded Marxist rebels. It also capped the number of troops and civilian government contractors the United States could deploy to Colombia. After signing each bill into law, Bush used a signing statement to inform the military that he need not obey any of the Colombia restrictions because he was commander in chief. The combat ban and troop cap, he declared, would be interpreted merely “as advisory in nature.”
Bush also said he could bypass laws requiring him to tell Congress before diverting money from an authorized program in order to start a secret operation, such as funding for new “black sites,” where suspected terrorists were secretly imprisoned around the world. Congress also twice passed laws forbidding the military from using intelligence that was not “lawfully collected,” including any information on Americans that was gathered in violation of the Fourth Amendment’s protections against unreasonable searches. Congress first passed this provision in August 2004, when the National Security Agency’s warrantless surveillance program was still a secret, and it passed it again after the program’s existence was disclosed in December 2005. On both occasions, Bush used signing statements to tell the military that only the commander in chief could decide whether the use of such intelligence was acceptable.
In December 2006, Congress passed a postal service bill that restated an existing ban on opening first-class mail without a warrant, unless the letter or package is suspected of containing a letter bomb. Bush’s signing statement said that the executive branch could nevertheless open mail without a warrant when “specifically authorized by law for foreign intelligence collection.”22 This qualifier rendered the warrant requirement effectively meaningless, since in the warrantless-wiretapping controversy, the administration had asserted it was authorized by the “law” of the president’s inherent constitutional powers to intercept phone calls without a judge’s approval.
In October 2004, five months after the Abu Ghraib torture scandal in Iraq came to light, Congress passed a bill containing a series of new rules and regulations for military prisons. Bush signed the bill, turning each of the sections into laws, and then he said he could ignore them all. One provision made clear that military lawyers can give their commanders independent advice on such issues as what would constitute torture. Bush ordered the military lawyers not to contradict his administration’s politically appointed lawyers. Another post–Abu Ghraib law required the Pentagon to retrain military prison guards on the requirements for humane treatment of detainees under the Geneva Conventions, to perform background checks on civilian contractors in Iraq, and to limit such contractors’ involvement in “security, intelligence, law enforcement, and criminal justice functions.” Bush told the armed forces that as the commander in chief, he was not bound to obey the requirements—and by extension, since they were all part of the same “unitary” executive branch, neither were they.
Yet another post–Abu Ghraib law created the position of inspector general for Iraq. Bush sharply reduced the impact of this law by writing in his signing statement that the inspector general “shall refrain” from investigating any intelligence or national security matter, or any crime the Pentagon says it prefers to investigate for itself. He had placed similar limits on an inspector-general position created by Congress in November 2003 for the initial stage of the U.S. occupation of Iraq. The earlier law empowered the inspector general to notify Congress if a U.S. official refused to cooperate, but Bush told the inspector general that he could not give any information to Congress without permission from the administration.
Many of the other laws Bush asserted he could bypass imposed requirements on him to provide information to congressional oversight committees. In December 2004, for example, Congress passed an intelligence bill requiring the Justice Department to tell it how often, and in what situations, the FBI was using special national-security wiretaps on U.S. soil. The bill also contained language requiring the Justice Department to give oversight committees copies of administration memos outlining any new interpretations of domestic-spying laws. It further contained eleven other sections requiring reports about such issues as civil liberties, security clearances, border security, and counternarcotics efforts. After signing the bill, Bush issued a signing statement telling the executive branch that he could withhold all the information sought by Congress.
It went on. Also in December 2004, Bush signed a law saying that, when requested, scientific information “prepared by government researchers and scientists shall be transmitted [to Congress] uncensored and without delay.” Bush then told researchers in a signing statement that he could order them to withhold any information from Congress if he decided its disclosure could impair foreign relations, national security, or the workings of the executive branch.
Likewise, when Congress created the Department of Homeland Security in 2002, it said oversight committees must be given information about vulnerabilities at chemical plants and with regard to the screening of checked bags at airports. The Homeland Security Act also said Congress must be shown unaltered reports about problems with visa services prepared by a new immigration ombudsman. But Bush instructed the executive branch that the president had a constitutional right to withhold the information and alter the reports.
In December 2006, Congress passed a law prohibiting the United States from transferring nuclear technology to India if that country violated international nonproliferation guidelines. Bush said only he got to determine what the country’s foreign policy would be, so he would view the required ban merely as “advisory.”
Bush also challenged laws that set minimum qualifications for who could be placed in important executive branch positions—positions often created by Congress. In October 2006, Congress passed a law in response to the revelation during Hurricane Katrina that Bush’s choice to head the Federal Emergency Management Agency, Michael Brown, had been a politically connected hire whose prior experience was in managing a horse-racing association, not emergency management. The law said the president must nominate a candidate who has “a demonstrated ability in and knowledge of emergency management” and “not less than five years of executive leadership.” Bush said that only he, as head of the executive branch, got to decide who to appoint to offices, so he could ignore the requirement.23
On several other occasions, Bush informed the executive branch that he was not bound to obey laws creating “whistle-blower” job protections for federal employees—laws in which Congress had assured the workers that they could not be fired or otherwise punished for telling a member of Congress about possible government wrongdoing. For example, when Congress passed a massive energy package in August 2005, it strengthened whistle-blower protections for employees at the Department of Energy and the Nuclear Regulatory Commission. Congress added the provision in the bill because lawmakers believed Bush appointees were intimidating nuclear specialists so that they would not testify about safety issues related to a planned nuclear-waste repository at Yucca Mountain in Nevada. The administration supported the facility, but both senators from Nevada—Republican John Ensign and Democrat Harry Reid—opposed it. After Bush signed the energy bill, he issued a signing statement declaring to the executive branch that he could ignore the whistle-blower protections.
Although the Supreme Court had rejected the Unitary Executive Theory as false, Bush invoked it eighty-two times during his first term alone, targeting many laws that gave government officials duties that might conflict with presidential control.24 In November 2002, Congress sought to generate independent statistics about student performance. The lawmakers passed a statute setting up an educational research institute to conduct studies and publish reports “without the approval” of the secretary of education. When Bush signed the bill containing the research law, he instructed the executive branch to interpret it to mean the precise opposite of what Congress had written. Citing his authority to supervise a unitary executive branch, Bush decreed in his signing statement that the institute’s director would be “subject to the supervision and direction of the Secretary of Education.”
Similarly, the Supreme Court had repeatedly upheld affirmative action programs, as long as they did not include quotas. (In 2003, the Court voted 5–4 to uphold a race-conscious university admissions program over the strong objections of Bush, who argued that any such program should be struck down as unconstitutional.) Yet despite the Court’s rulings, Bush took exception at least nine times to provisions that sought to ensure that minorities were represented among recipients of government jobs, contracts, and grants. In December 2004, for example, Congress passed a law requiring the new national intelligence director to recruit and train women and minorities to be spies, analysts, and translators in order to ensure diversity in the intelligence community. Bush signed the bill containing the new law but directed the executive branch to construe it “in a manner consistent with” the Constitution’s guarantee of “equal protection” to all, thus pressing forward with his view that affirmative action programs amount to unconstitutional reverse discrimination—this even though the Supreme Court had recently rejected that precise argument.
5.
The gap between the legal claims in the Bush-Cheney signing statements and mainstream understandings of the Constitution threw new light on a potentially enormous problem lurking in the Constitution: If a president has the power to instruct the government not to enforce laws that he alone has declared to be unconstitutional, then he can free himself from the need to obey laws that he alone says restrict his actions unconstitutionally—even when the Supreme Court, were it given an opportunity to review his theory, would be unlikely to agree with it.
Legal disputes involving the balance of power between the president and Congress are very difficult to get before a court. As Supreme Court justice Robert Jackson noted in 1952, the office of the presidency is “relatively immune from judicial review.”25 Unlike in some other countries, in the American system of law, a court cannot offer an “advisory opinion” that resolves some abstract dispute. Instead, a specific victim of a law or policy, over whom courts have jurisdiction, must file a lawsuit for a question to get before the Supreme Court. But nobody has legal standing to sue over most of the important laws that Bush challenged. There is no individual victim, for legal purposes, if, hypothetically, a president sends more troops to Colombia than a statute allows. There might be a “victim” if a detainee is tortured in violation of the torture ban, but if that detainee is not a U.S. citizen and is not on U.S. soil, it would be very difficult for a civilian court to obtain jurisdiction to hear the case. In addition, the White House could invoke the State Secrets Privilege to get any such lawsuit dismissed without a ruling on the underlying legal dispute.
There were other difficulties for those inclined to attempt to push back against the Bush-Cheney signing statements. A misstatement of the law alone is not a crime, for example. Someone can falsely declare that he has a right to take a television home from the store without paying for it, but unless he actually follows through on that threat and steals the TV, there is nothing to prosecute. Moreover, it was very difficult to know which of the laws challenged Bush was actually violating—if any. The most important laws that Bush challenged nearly always involved classified foreign affairs and national security matters, where the executive branch’s actions are secret from the public and often from a majority in Congress. Thus, his actions were often limited only by what his handpicked lawyers told him he could not do in their confidential advice. “There can’t be judicial review if nobody knows about it,” said Georgia State’s Neil Kinkopf. “And if they avoid judicial review, they avoid having their constitutional theories rebuked.”26
Allies of the Bush-Cheney administration argued that concerns about its signing statements were overblown, noting that just because the president had reserved a right to bypass a law didn’t mean that he went on to disobey it. Indeed, in some cases, the administration clearly ended up following laws that Bush said he could bypass. For example, citing his power to “withhold information” in September 2002, Bush declared that he could ignore a law requiring the State Department to list the number of deaths of U.S. citizens in foreign countries. Nevertheless, the department still put a list on its website.
Skeptics replied that the administration had damaged credibility when it came to its assurances about what it was doing behind closed doors. At a government-sponsored rally to support the Patriot Act in 2004, for example, Bush told the public that “any time you hear the United States government talking about wiretap, it requires—a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so.”27 But it later emerged that since 9/11, the government had been secretly intercepting phone calls and e-mails on U.S. soil without court orders.
Moreover, the Government Accountability Office (the agency formerly known as the General Accounting Office, which had changed its name in 2004 to better reflect its mission) later sampled a small number of the laws Bush had challenged. Although it did not look at any of the more controversial laws involving classified national security matters, the GAO found that agencies went on to disobey six out of sixteen provisions. For example, one such law required the border patrol to move its checkpoints for illegal immigrants near Tucson every seven days. In a signing statement, Bush asserted that only the president can decide how to deploy law enforcement officers, and he instructed the border patrol to view the law as merely “advisory.” The border patrol had gone on to disobey the law, explaining to the GAO that it was only “advisory.” In response to the report, a White House spokesman said, “The signing statements certainly do and should have an impact. They are real.”28
Bruce Fein, a deputy attorney general in the Reagan administration, said the American system of government relies upon the leaders of each branch “to exercise some self-restraint.” But Bush had declared himself the sole judge of his own powers and then ruled for himself every time. “This is an attempt by the president to have the final word on his own constitutional powers, which eliminates the checks and balances that keep the country a democracy,” Fein said. “There is no way for an independent judiciary to check his assertions of power, and Congress isn’t doing it, either. So this is moving us toward an unlimited executive power.”29
Fein was not the only member of the Reagan legal team who criticized the way in which the Bush-Cheney legal team used signing statements. Even Calabresi, the coauthor of the original 1985 memo urging Meese to expand the use of signing statements, said that the Bush-Cheney team was no longer using the device in the way he originally had had in mind. A president, Calabresi concluded, should be able to decline to execute a law only when he has a “good faith” belief that it’s unconstitutional—when it’s “clear” to everyone that the law is invalid. “It can’t be a really contested matter of constitutionality,” he explained. “That’s the tricky thing. It is clear that the president is not supposed to have a power to just suspend laws, or to just take a law that was on the books and freeze it.”30
Moreover, Calabresi said, if a president is confronted with a bill that he believes is unconstitutional, his first duty in most cases is to veto the bill unless the country would be severely hurt by the failure to enact other provisions of the bill immediately. Calabresi said it is a “bad idea” for a president to regularly sign bills into law and then to issue signing statements declaring that portions of the bill are unconstitutional. “I think what the administration has done in issuing no vetoes and scores of signing statements is not the right way to approach this,” Calabresi said.
And Douglas Kmiec, who headed the Office of Legal Counsel in Reagan’s second term and was another key player in overseeing the growth of signing statements, said he disapproved of what he called the “provocative” and sometimes “disingenuous” manner in which the Bush-Cheney administration used signing statements. Kmiec, who is now a Pepperdine University law professor, said the Reagan team’s goal was to leave a record of the president’s understanding of new laws only in cases where an important statute was ambiguous. He rejected the idea of using signing statements to contradict the clear intent of Congress, as Bush and Cheney did. Presidents should either quietly tolerate provisions of bills they don’t like or they should veto the bill, he said, adding that he thought the Bush-Cheney administration’s use of signing statements had gone too far, needlessly antagonizing Congress. “The president is not well served by the lawyers who have been advising him,” Kmiec said.31
6.
On June 4, 2006, the board of governors for the American Bar Association, meeting in flood-ravaged New Orleans, voted unanimously to investigate whether Bush had exceeded his constitutional authority when he asserted in his signing statements that he had the constitutional authority to ignore laws. The ABA president, Michael Greco, a Boston lawyer who had served on former Republican Massachusetts governor William F. Weld’s Judicial Nominating Council, appointed a blue-ribbon and bipartisan task force of legal luminaries—including former officials from all three branches of government, prominent scholars, and a retired FBI director—to carry out the inquiry.*
