As president-elect, in November, Obama said that he was preparing a list of about 200 executive orders issued by Bush that he, Obama, would simply reverse. I haven't seen that list yet, and this latest memo regarding signing statements suggests that they will not be included. The most Constitutional move that President Obama could make would be to toss out every signing statement that authorized violating laws and every executive order, memo, determination, finding, directive, proclamation, or other royal decree that his predecessor did not have the Constitutional right to issue. Instead, Obama has reversed a handful of Bush's orders because of "policy differences." Some of these are wonderful and lifesaving reversals, such as that regarding torture. But they involve a life-threatening maintenance of dangerous monarchical power. Congress should give the president explicit and limited rule-making powers. All rules should be publicly available. And Congress should be understood to have the power to overrule them. Outside of those restrictions, a president should not be permitted to make decrees carrying the force of law.
In the same pre-election questionnaire quoted above, Obama made an encouraging comment regarding secrecy:
"I believe the Administration's use of executive authority to over-classify information is a bad idea. We need to restore the balance between the necessarily secret and the necessity of openness in our democracy--which is why I have called for a National Declassification Center."
But Obama has, at least thus far, chosen to release only a small fraction of the Bush-Cheney crime documents known to exist. We have not seen most of the memos and not seen the Emails. Eric Holder's Justice Department has opposed releasing the Emails and urged a federal appeals court to dismiss a lawsuit against Boeing subsidiary Jeppesen DataPlan for its role in the extraordinary rendition program. Mohamed et al. v. Jeppesen had been brought on behalf of five men who were kidnapped and secretly transferred to U.S.-run prisons or foreign intelligence agencies overseas where they were tortured. The Bush administration had asserted the "state secrets" privilege, claiming the case would somehow undermine national security, and Holder's department agrees.
Holder's Justice Department has also used a "state secrets" claim to try to block a lawsuit over Bush's warrantless spying, and claimed in a brief filed in that case that only a president can decide on the use of any classified information in court (even in a closed court), a power that would allow presidents to give themselves immunity by simply classifying evidence of their crimes.
Britain's High Court of Justice ruled that evidence in the U.K. civil case of Binyam Mohamed, one of the plaintiffs in the Jeppesen case, had to remain secret because of U.S. threats to cut off intelligence sharing. Britain's Telegraph newspaper reported that "Mohamed’s genitals were sliced with a scalpel and other torture methods so extreme that waterboarding, the controversial technique of simulated drowning, 'is very far down the list of things they did'." Britain's Daily Mail reported that Mohamed "was identified as a terrorist after confessing he had visited a 'joke' website on how to build a nuclear weapon. ... [He] admitted to having read the 'instructions' after allegedly being beaten, hung up by his wrists for a week and having a gun held to his head in a Pakistani jail."
In a remarkable show of their continuing desire for Congress to exist as a functioning part of our government, and willingness to challenge a president of the same political party, leading Democrats in the House and Senate have introduced the State Secrets Protection Act, which would require court review of any "state secrets" claims. Senator Russ Feingold (D., Wisc.) also requested a classified briefing to have this particular "state secrets" claim explained to him. Of course, if he's given an explanation he'll be forbidden from sharing it with us. And, of course, Congress does not propose Congressional review, only court review, of "state secrets" claims.
However, in what I consider a remarkable rush to give presidents more power, Feingold joined with Republican Senators John McCain and Paul Ryan last week to reintroduce legislation that would effectively give presidents an unconstitutional line-item veto for spending bills. Unwilling to ban or simply stop including wasteful earmarks, senators and Congress members would like to give presidents the power to undo congressional decisions. Rather than rejecting an item with a signing statement, a president could legally "rescind" it, requiring both houses to vote again on that item alone. The same result could be achieved by requiring each house to vote on such items individually to begin with, but that wouldn't transfer power to the president and therefore doesn't look to Washington insiders like as much of a reform.
Barack Obama as a candidate for the presidency had advocated for Congressional "approval" of the treaty President Bush made with Iraq. As President-Elect, Obama favored Congressional "review." As President he went silent. President Obama immediately upon taking office began launching military strikes into Pakistan and has now escalated the occupation of Afghanistan, without anyone even suggesting that Congress be consulted in these matters. President Obama and his top officials, in their first weeks in office, supported claims of "executive privilege" allowing members of the former Bush administration to refuse to comply with Congressional subpoenas, and explicitly doing so in order to protect the "power of the presidency." Obama's lawyer conducted a negotiation of terms between the first branch of our government and a common criminal, Karl Rove, rather than hauling Rove in by force, something that Congress itself of course refuses to do as well. The result will be Rove testifying, at least in private and at least on some topics, but also the maintenance of the idea that the president can choose whether or not to allow Congress to subpoena witnesses.
I hate to sound ungrateful here. I'm delighted that Obama released seven more memos. I'm aware that those memos exhibit a reckless, lawless lunacy that outstrips anything previously seen in this country or likely to be seen in the next four years. But the powers claimed by those memos do not go away just because some other memos are written and the powers are not used. The powers go away only if something is done to deter their reappearance. One option, which really ought not to be an option, would be for the Justice Department to enforce the law.
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