Wednesday, January 04, 2006

Alito helps Bush make a fool of McCain
We all cheered when Sen. John McCain managed to get both houses of Congress to pass veto proof legislation requiring the executive branch to obey our existing laws banning torture. After threatening a veto, President Bush stepped back and let Vice President Cheney play the heavy, leaving his undisclosed hiding place to bluster on about our need to torture. No amount of fear mongering or threats worked and a bi-partisan, bi-cameral coalition kept the anti-torture wording in the defense appropriation bill and sent it to Bush for his signature. Without mentioning the word veto, Bush quietly signed the bill. And that seemed to settle the issue. Until this morning.
When President Bush last week signed the bill outlawing the torture of detainees, he quietly reserved the right to bypass the law under his powers as commander in chief.

After approving the bill last Friday, Bush issued a "signing statement" -- an official document in which a president lays out his interpretation of a new law -- declaring that he will view the interrogation limits in the context of his broader powers to protect national security. This means Bush believes he can waive the restrictions, the White House and legal specialists said.


Some legal specialists said yesterday that the president's signing statement, which was posted on the White House website but had gone unnoticed over the New Year's weekend, raises serious questions about whether he intends to follow the law.

A senior administration official, who spoke to a Globe reporter about the statement on condition of anonymity because he is not an official spokesman, said the president intended to reserve the right to use harsher methods in special situations involving national security....

I probably paid more attention in my high-school government class than most people. Yes, I had a crush on the teacher, but I was also genuinely interested in the subject. So for those of you who were sleeping in government, let me assure you, they never taught us that the President has the right to add "unless I don't feel like it" to the laws that Congress passes. The President signs them as he gets them or vetoes them. Those are the only choices.

Where did Bush even get the idea that he could do that? It seems that this idea comes from the mind of noted legal scholar, Judge Samuel Alito, Jr.
In the 1980s, the Reagan administration, like other White Houses before and after, chafed at the reality that Congress's reach on the meaning of laws extends beyond the words of statutes passed on Capitol Hill. Judges may turn to the trail of statements lawmakers left behind in the Congressional Record when trying to glean the intent behind a law. The White House left no comparable record.

In a Feb. 5, 1986, draft memo, Alito, then deputy assistant attorney general in the Office of Legal Counsel, outlined a strategy for changing that. It laid out a case for having the president routinely issue statements about the meaning of statutes when he signs them into law.

Such "interpretive signing statements" would be a significant departure from run-of-the-mill bill signing pronouncements, which are "often little more than a press release," Alito wrote. The idea was to flag constitutional concerns and get courts to pay as much attention to the president's take on a law as to "legislative intent."

"Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress," Alito wrote.

Alito's statement makes it all sound very benign. For the last generation, conservatives have shown a great deal of interest in shutting down interpretation of the constitution and of the laws. This is really what "original intent" and the various assaults on the idea of "activist judges" have been all about.

This impulse comes from an emotional state and a legal philosophy. Emotionally, conservatives are very uncomfortable with shades of grey; they want clear black and white distinctions. To them, the law and constitution mean what the writers intended and only that. This translates into a legal philosophy that makes the courts subordinate to the other two branches of the federal government. The courts do not interpret the law; they merely apply it as received from the legislature and executive.

Alito's program made a dramatic change to the traditional conservative philosophy, though a change that also draws on a deep conservative heritage. On element of the argument for limiting the courts is that the three branches of the federal government are not actually equal; they are arranged in a hierarchy that can be divined by their order of appearance in the Constitution. Congress appears first in the Constitution, is most directly responsive to the will of the people, and is therefore on top. The President carries out the laws given to him by Congress and the courts apply the laws in criminal and civil disputes.

Alito's innovation was to raise the President to a position equal to the Congress in giving guidance to the courts. The courts in looking the intent of the lawmakers, should give credence to the intent of the President in signing the bill, just as the do to the intent of the writers of the bill and the other legislators who voted for the bill. Ironically, this might go against the original intent of the writers of the Constitution, many of whom really did want the Congress to be superior to the President.

Alito's innovation opens the door to another strain of conservatism, one that should be extremely offensive to liberals, moderates, libertarians, and even to the rest of the conservative spectrum. This is the authoritarian branch of conservatism based on the yearning for a strong father figure who will "lead" with a firm and stern hand.

Although the Bush White House has used 9/11 and the Global War on Terror to make a shameless grab for power, their desire to expand the power of the Presidency was obvious before the attack. The most obvious manifestations of this were their drive to escape oversight and permanently place their actions behind a veil of secrecy. Think, for example of Cheney's energy task force and Bush's executive orders placing presidential records off limits to researchers and tightening up guidelines for approving Freedom of Information requests.

Bush's signing statement is part of the next step in this process of expanding the presidency.
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.

While many people's first impression from this may be the sheer childishness of it--we had a fair debate on the subject in Congress, all of the peoples' representatives had an opportunity to participate, Bush lost, and his response is, "I don't have to do what you say unless I feel like it"--the deeper issues are very serious and have very bad implications for the future of the republic. This is a follow up to the same argument that his people have used to justify the NSA wiretapping. The White House is arguing that the President's role as Commander in Chief allows him to ignore any law he wants to as long as his lawyers can make a national security argument for ignoring it.

Leave aside all of the very emotional and important arguments for and against the two issues directly involved (torture and eavesdropping) and consider the abstract constitutional issue. Is the President entitled to ignore the law? Before you answer, consider that the current war is being portrayed as a generation long struggle, like the Cold War. Other presidents after Bush will have this power. Presidents from both parties will have this power. Should President Hillary Clinton or Ralph Reed have this power?

There is nothing in a principled conservative argument of original intent to support Bush's position. The founding fathers were very wary of arbitrary power. The clause in the Constitution giving the President Commander in Chief power (Article II, Section 3) reads in its entirety "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." That's it.

If Bush is allowed to ignore the laws of the land, what limits remain on his power. He is ignoring two of the most sacred principles of American democracy: that we a country governed by laws, not kings, and that those in power respect the results of legal votes (in this case, a vote in Congress) even when they think a bad choice has been made. In theory, if this is allowed, what is to prevent Bush from canceling elections in 2008 on the national security justification that he could wage the War on Terror better than any one else.

We don't even need to be conspiracy monger and believe that he intends to do that. We can fully trust Bush not to abuse this power and to only break the law to go after bad guys and still see that it is a bad idea. The important question is, once he has set this legal precedent, can we trust every future president not to abuse it? Again, can we trust President Hillary Clinton or Ralph Reed with this power?

Democracy depends for its survival on an institutionalized system of checks and balances and on its participants acting in good will to accept defeat. The Bush administration, using arguments supplied in part by Alito, is asking us to exempt them from both of these principles. If we--Congress and the people--let this pass, future generation will curse us and we will deserve their curses.

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