Imagine a president who violates numerous laws that predate his presidency. Imagine that Congress redundantly and repeatedly re-bans that criminal behavior. Imagine a president who repeatedly throws out the new bans with signing statements and continues to violate the same laws. This is the heart of the matter of the Bush "signing statements." It is an unprecedented use of signing statements. And it is something that too many of us are unaware of and too many others aware of but apparently unwilling to face.
Borrowing heavily from various authors and lawyers, I've drafted the nine articles of impeachment of George W. Bush and the six articles of impeachment of Richard B. Cheney that are found at the bottom of this article. I am not a lawyer or a politician, but merely an offended American. My intent here is to select the offenses that most threaten our democratic system of government. I am offended most of all by one of the offenses mentioned below in Article V for the impeachment of Bush and in Article IV for the impeachment of Cheney. This offense is, if anything ever can be, a public declaration of impeachability. And it is by its very nature public, which puts the lie to the idea that further investigation is needed prior to impeachment hearings.
The U.S. Constitution requires that the president "take care that the laws be faithfully executed." And, as we all learned in elementary school, the Constitution also sets forth the manner in which a bill can become a law. In fact, elementary schools continue to teach this today, as if it were still accurate. Article I, Section 7, of the Constitution says that "every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law."
The reality has now become this: Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; he shall sign the bill in the presence of select members of the House of Representatives, Senate, and the media; during the next convenient holiday weekend he shall quietly rewrite the law with a signing statement. Congress can neither override a signing statement nor challenge it in court; but courts can cite signing statements in their opinions as though they have the force of law, which they do.
Signing statements are not new. James Monroe wrote the first one. But they were rare until Ronald Reagan's presidency. The 322 pre-George W. Bush signing statements challenged, by one count, some 600 provisions of law. In most cases these challenges were not declarations of the right to violate the law. When President Clinton used a signing statement to announce his belief that it was unconstitutional to discharge members of the military for testing positive for HIV, he instructed his Attorney General not to defend the law if it were challenged, but also made clear that he would enforce the law as long as it remained on the books. Clinton's lawyers expressed the view that a President could not refuse to enforce a law until the Supreme Court had ruled against it.
In striking contrast, Bush's lawyers have maintained that the President can refuse to enforce a law until the Supreme Court rules in favor of it. Deputy Assistant Attorney General John Elwood made this claim under oath before the House Judiciary Committee this past February.
By the count of a lawyer who has studied the matter in detail, Bush has used 147 signing statements to challenge over 1,140 provisions in about 150 federal bills. But where Bush has truly broken new ground is in the types of provisions he has challenged and the way in which he has challenged them.
First, Bush has violated numerous laws that predate his presidency. To take just two examples of many, he has spied in violation of the Fourth Amendment and the Foreign Intelligence Surveillance Act, and tortured in violation of the Eighth Amendment, the Fifth Amendment, federal statutory law, the Universal Declaration of Human Rights, the Convention Against Torture, the International Covenant on Civil and Political Rights, the Inter-American Declaration on the Rights and Duties of Man, and the Third and Fourth Geneva Conventions. In the case of the spying, Bush lied about it for years, got caught, confessed, and continued spying. In the case of torture, the White House has developed papers claiming the right to do so, and continues to do so in the face of global outrage.
Second, Congress has passed bills redundantly criminalizing Bush and Cheney's criminal activities. In several cases it has done so more than once in an apparent effort to make the law stick through repetition. Congress has banned torture twice during the Bush presidency. And Congress has banned the use of funds for illegal spying programs twice during the Bush presidency.
Third, Bush has thrown out the new bans on his criminal behavior through the use of signing statements. In the case of the funds for illegal spying, see the signing statements Bush wrote after signing the Defense Appropriations Bills for 2005 and 2006.
Congress said: "None of the funds provided in this Act shall be available for integration of foreign intelligence information unless the information has been lawfully collected and processed during the conduct of authorized foreign intelligence activities: Provided, That information pertaining to United States persons shall only be handled in accordance with protections provided in the Fourth Amendment of the United States Constitution as implemented through Executive Order No. 12333."
Bush said: "Also, the executive branch shall construe section 8124, relating to integration of foreign intelligence information, in a manner consistent with the President's constitutional authority as Commander in Chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch."
That may sound like gibberish, but at least 143 times in 147 signing statements, Bush claims the power of a fictional being he and Cheney's lawyers invented, the "unitary executive." This creature does not exist in the Constitution, but is worthy of notice because he claims absolute power, a substance well known to corrupt absolutely.
In the case of torture, the first Detainee Treatment Act was contained in H.R. 2863, the "Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006." That bill was signed on December 5, 2005, and is now Public Law 109-148. The second Detainee Treatment Act was part of H.R. 1815, the "National Defense Authorization Act for Fiscal Year 2006." That bill was signed on January 6, 2006, and is now Public Law 109-163. The second of these is better known and included the McCain Amendment banning all torture.
Bush (and more so Cheney) had been lobbying against the torture ban, but publicly admitted defeat and signed the bill. Over New Year's weekend, the White House quietly posted a signing statement on its website, and the Boston Globe reported on it. Senator John McCain, having won a very public contest to ban torture, said little about Bush's quiet reversal of the outcome. McCain limited himself to issuing a joint statement with Senator John Warner which read in its entirety:
"We believe the President understands Congress's intent in passing by very large majorities legislation governing the treatment of detainees included in the 2006 Department of Defense Appropriations and Authorization bills. The Congress declined when asked by administration officials to include a presidential waiver of the restrictions included in our legislation. Our Committee intends through strict oversight to monitor the Administration's implementation of the new law."