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"Bush challenges hundreds of laws
President cites powers of his office
By Charlie Savage, Globe Staff | April 30, 2006

WASHINGTON -- President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution.

Among the laws Bush said he can ignore are military rules and regulations, affirmative-action provisions, requirements that Congress be told about immigration services problems, ''whistle-blower" protections for nuclear regulatory officials, and safeguards against political interference in federally funded research.

Legal scholars say the scope and aggression of Bush's assertions that he can bypass laws represent a concerted effort to expand his power at the expense of Congress, upsetting the balance between the branches of government. The Constitution is clear in assigning to Congress the power to write the laws and to the president a duty ''to take care that the laws be faithfully executed." Bush, however, has repeatedly declared that he does not need to ''execute" a law he believes is unconstitutional.

Former administration officials contend that just because Bush reserves the right to disobey a law does not mean he is not enforcing it: In many cases, he is simply asserting his belief that a certain requirement encroaches on presidential power.

But with the disclosure of Bush's domestic spying program, in which he ignored a law requiring warrants to tap the phones of Americans, many legal specialists say Bush is hardly reluctant to bypass laws he believes he has the constitutional authority to override.

Far more than any predecessor, Bush has been aggressive about declaring his right to ignore vast swaths of laws -- many of which he says infringe on power he believes the Constitution assigns to him alone as the head of the executive branch or the commander in chief of the military.

Many legal scholars say they believe that Bush's theory about his own powers goes too far and that he is seizing for himself some of the law-making role of Congress and the Constitution-interpreting role of the courts.

Phillip Cooper, a Portland State University law professor who has studied the executive power claims Bush made during his first term, said Bush and his legal team have spent the past five years quietly working to concentrate ever more governmental power into the White House.

''There is no question that this administration has been involved in a very carefully thought-out, systematic process of expanding presidential power at the expense of the other branches of government," Cooper said. ''This is really big, very expansive, and very significant."

For the first five years of Bush's presidency, his legal claims attracted little attention in Congress or the media. Then, twice in recent months, Bush drew scrutiny after challenging new laws: a torture ban and a requirement that he give detailed reports to Congress about how he is using the Patriot Act.

Bush administration spokesmen declined to make White House or Justice Department attorneys available to discuss any of Bush's challenges to the laws he has signed.

Instead, they referred a Globe reporter to their response to questions about Bush's position that he could ignore provisions of the Patriot Act. They said at the time that Bush was following a practice that has ''been used for several administrations" and that ''the president will faithfully execute the law in a manner that is consistent with the Constitution."

But the words ''in a manner that is consistent with the Constitution" are the catch, legal scholars say, because Bush is according himself the ultimate interpretation of the Constitution. And he is quietly exercising that authority to a degree that is unprecedented in US history.

Bush is the first president in modern history who has never vetoed a bill, giving Congress no chance to override his judgments. Instead, he has signed every bill that reached his desk, often inviting the legislation's sponsors to signing ceremonies at which he lavishes praise upon their work.

Then, after the media and the lawmakers have left the White House, Bush quietly files ''signing statements" -- official documents in which a president lays out his legal interpretation of a bill for the federal bureaucracy to follow when implementing the new law. The statements are recorded in the federal register.

In his signing statements, Bush has repeatedly asserted that the Constitution gives him the right to ignore numerous sections of the bills -- sometimes including provisions that were the subject of negotiations with Congress in order to get lawmakers to pass the bill. He has appended such statements to more than one of every 10 bills he has signed.

''He agrees to a compromise with members of Congress, and all of them are there for a public bill-signing ceremony, but then he takes back those compromises -- and more often than not, without the Congress or the press or the public knowing what has happened," said Christopher Kelley, a Miami University of Ohio political science professor who studies executive power.


Military link
Many of the laws Bush said he can bypass -- including the torture ban -- involve the military.

The Constitution grants Congress the power to create armies, to declare war, to make rules for captured enemies, and ''to make rules for the government and regulation of the land and naval forces." But, citing his role as commander in chief, Bush says he can ignore any act of Congress that seeks to regulate the military.

On at least four occasions while Bush has been president, Congress has passed laws forbidding US troops from engaging in combat in Colombia, where the US military is advising the government in its struggle against narcotics-funded Marxist rebels.

After signing each bill, Bush declared in his signing statement that he did not have to obey any of the Colombia restrictions because he is commander in chief.

Bush has also said he can bypass laws requiring him to tell Congress before diverting money from an authorized program in order to start a secret operation, such as the ''black sites" where suspected terrorists are secretly imprisoned.

Congress has 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 Bush's warrantless domestic spying program was still a secret, and passed it again after the program's existence was disclosed in December 2005.

On both occasions, Bush declared in signing statements that only he, as commander in chief, could decide whether such intelligence can be used by the military.

In October 2004, five months after the Abu Ghraib torture scandal in Iraq came to light, Congress passed a series of new rules and regulations for military prisons. Bush signed the provisions into law, then 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. But Bush declared that military lawyers could not contradict his administration's lawyers.

Other provisions 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 ban such contractors from performing ''security, intelligence, law enforcement, and criminal justice functions." Bush reserved the right to ignore any of the requirements.

The new law also created the position of inspector general for Iraq. But Bush wrote in his signing statement that the inspector ''shall refrain" from investigating any intelligence or national security matter, or any crime the Pentagon says it prefers to investigate for itself.

Bush had placed similar limits on an inspector general position created by Congress in November 2003 for the initial stage of the US occupation of Iraq. The earlier law also empowered the inspector to notify Congress if a US official refused to cooperate. Bush said the inspector could not give any information to Congress without permission from the administration.


Oversight questioned
Many laws Bush has asserted he can bypass involve requirements to give information about government activity to congressional oversight committees.

In December 2004, Congress passed an intelligence bill requiring the Justice Department to tell them how often, and in what situations, the FBI was using special national security wiretaps on US soil. The law also required the Justice Department to give oversight committees copies of administration memos outlining any new interpretations of domestic-spying laws. And it contained 11 other requirements for reports about such issues as civil liberties, security clearances, border security, and counternarcotics efforts. Continued..."

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Originally posted by AnthonyT:

Is this accurate? Is this web source reliable?

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When Democratic members of the House learned that the Senate and Speaker Hastert had sent the President legislation that was substantially different that what the House had passed - different to the tune of $2 billion dollars -- they were understandably upset. They had already been shut out of the process: The entire legislative package of cuts had largely been agreed upon behind closed doors, without any Democrats present - now standard procedure in the GOP controlled Congress -- and the vote in the House had been taken after midnight, which is another ploy frequently relied upon by the GOP leaders. But this added injury to insult: The legislation that had gone to the President, was materially different from the legislation upon which they had voted!

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Originally posted by SignyM:
I'm not sure if it's included in THIS article, but the latest - and breathtaking- abrogation of the law was shen Bush recently signed a bill inot law that had NOT been passed in the same form by both the House and Senate.

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Originally posted by jmb9039:
It is scary. I think a lot of Bush supporters forget that when they blindly support what he does, they are supporting a precident (one that future presidents can use and abuse) not just Bush.
JMB9039

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Originally posted by SignyM:
I don't know how Bush supporters justify his actions to themselves, let alone how they justify it to others. It's really NOT "politics as usual", it's a naked and wholly unconstitutional (and I don't mean that metaphorically, Bush is breaking the law as set forth in the Constitution) power grab that could only be clearer if Bush refused to step down at the end of his term.

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Originally posted by Hero:
In this case Bush is acting as President and Commander-in-Chief and Chief Executive and Senior Big Guy, etc. Liberals, unable to cope with or accept the 2000 election have attacked his legitimacy and intentions from day one, even in the wake of 9/11.

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Originally posted by Hero:
We support the President because we agree with his actions (I note for the record that there are also disagreements about what actions he did or did not take, I can fully support the actions I know of and reserve judgement for those I do not...as for those he didn't do but is often accused of, I neither support nor deny those actions) and we disagree that they are unconstitutional.

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Its all political. In the early days of Clinton a lot of the right-wing fringe had similar misgivings about Clinton and how he was going to suspend the Constitution and refuse to step down. Sure, Clinton sabotaged the Gore campaign and the economy in a blatent attempt to propel Hillary to power in 2004, but he were not the evil dictator the militia types feared.

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In this case Bush is acting as President and Commander-in-Chief and Chief Executive and Senior Big Guy, etc. Liberals, unable to cope with or accept the 2000 election have attacked his legitimacy and intentions from day one, even in the wake of 9/11.

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Originally posted by jmb9039:

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Originally posted by Hero:
We support the President because we agree with his actions (I note for the record that there are also disagreements about what actions he did or did not take, I can fully support the actions I know of and reserve judgement for those I do not...as for those he didn't do but is often accused of, I neither support nor deny those actions) and we disagree that they are unconstitutional.

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For the love of all things holy, stop. You are embarrasing yourself. Basically, what you've said it you chose not to acknolwedge what he may have done wrong and only to support what you think he did right...

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Its all political. In the early days of Clinton a lot of the right-wing fringe had similar misgivings about Clinton and how he was going to suspend the Constitution and refuse to step down. Sure, Clinton sabotaged the Gore campaign and the economy in a blatent attempt to propel Hillary to power in 2004, but he were not the evil dictator the militia types feared.

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Hey you made a funny! Nice conspiracy theory. I'm sure you feel Fahrenheit 911 was all conspiracy but your thoughts on Clinton are fact. That’s how you refer to opinion, right HERO? As fact? And suspend the Constitution? Step Down? The entire impeachment was a show. Face it. Even the republicans didn't give a rat's behind if Clinton lied or not; they wanted to embarrass him publicly.

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In this case Bush is acting as President and Commander-in-Chief and Chief Executive and Senior Big Guy, etc. Liberals, unable to cope with or accept the 2000 election have attacked his legitimacy and intentions from day one, even in the wake of 9/11.

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Right, that's why we are upset with Bush, because we lost the election. It couldn't be his blatant disregard for the Constitution, his shoot first mentality with foreign relations, his inablity to understand complex issues, his imposing of Christian beliefs on America, his "stay the course" attitude that disregards facts, his choice to put business over environment and health... shall I continue?

You said it right at the end though "he'll go off to the ranch" To Bush, this is just a job, he makes his money, enjoys his power and in the end just goes home. He doesn't care about the people of this country or the future of our society. And yes, that's an opinion just so you don't get the two confused again.

Don't follow a leader just because you voted for him or he is of your party. Follow a leader because they are a good leader. Be open to change your mind.

JMB9039

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Originally posted by jmb9039:
Right, that's why we are upset with Bush, because we lost the election. It couldn't be his blatant disregard for the Constitution, his shoot first mentality with foreign relations, his inablity to understand complex issues, his imposing of Christian beliefs on America, his "stay the course" attitude that disregards facts, his choice to put business over environment and health
JMB9039

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"I don't know how Bush supporters justify his actions to themselves, let alone how they justify it to others. It's really NOT "politics as usual", it's a naked and wholly unconstitutional (and I don't mean that metaphorically, Bush is breaking the law as set forth in the Constitution) power grab that could only be clearer if Bush refused to step down at the end of his term."

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Paper: Washington Post
Title: ADMINISTRATION BACKING NO-WARRANT SPY SEARCHES
Author: R. Jeffrey Smith
Date: July 15, 1994
Section: A SECTION
Page: a19

The Clinton administration, in a little-noticed facet of the debate on intelligence reforms, is seeking congressional authorization for U.S.spies to continue conducting clandestine searches at foreign embassies in Washington and other cities without a federal court order.

The administration's quiet lobbying effort is aimed at modifying draft legislation that would require U.S. counterintelligence officials to get a court order before secretly snooping inside the homes or workplaces of suspected foreign agents or foreign powers.

The legislation grew out of a legal debate surrounding the government's secret surveillance of CIA official Aldrich H. Ames, who pleaded guilty in April to charges of spying for the former Soviet Union. Key evidence in the case was collected during secret searches of Ames's office and home in June and October 1993, both without a federal warrant.

The Constitution's Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects" unless the government obtains a warrant based on probable cause of criminal activity. According to the American Civil Liberties Union (ACLU), that made the search of Ames's house -- and other secret searches by the government -- probably illegal.

But government officials decided in the Ames case that no warrant was required because the searches were conducted for "foreign intelligence purposes," a goal of such vital national security interest that they said it justified extraordinary police powers.

Government lawyers have used this principle to justify other secret searches by U.S. authorities, including "black bag jobs" long conducted at foreign embassies. The number of such secret searches conducted each year is classified, but knowledgeable sources say only a handful involve U.S. citizens such as Ames and a dozen or so involve foreigners or foreign establishments.

The principle has never been rigorously tested in court, however, and in the aftermath of the Ames case, Justice Department lawyers started worrying that such warrantless searches of private homes could be held unconstitutional. Their concerns were exacerbated when Ames's lawyer, Plato Cacheris, threatened to litigate the issue.

The government's remedy was to help draft legislation giving physical searches for "foreign intelligence purposes" a stronger legal underpinning, by requiring approval from a special court established in 1978 under the Foreign Intelligence Surveillance Act. The court consists of seven district court judges who now only authorize federal electronic surveillance of U.S. citizens.

As approved by the Senate Select Committee on Intelligence in June, however, the bill's requirements extend not only to searches of the homes of U.S. citizens but also -- in the delicate words of a Justice Department official -- to "places where you wouldn't find or would be unlikely to find information involving a U.S. citizen."

Places such as foreign embassies, for example. So the Justice Department, acting on behalf of the FBI, told Capitol Hill it wants these searches to continue with Attorney General Janet Reno's approval, rather than that of the special seven-judge court.

The government also wants to narrow the definition of a physical search, now given in the draft bill as an "examination of the interior of a property by technical means." Its preferred alternative would allow the government to use classified electronic surveillance techniques, such as infrared sensors to observe people inside their homes, without a court order.

The ACLU argues that giving warrantless physical searches a stronger legal underpinning will promote their wider use. "Black bag jobs were one of the worst civil liberties abuses of the Cold War," ACLU official Kate Martin told the House Permanent Select Committee on Intelligence at a hearing yesterday. "Instead of now approving them, the Congress should outlaw them."

Deputy Attorney General Jamie S. Gorelick yesterday countered that while the Clinton administration believes the president "has inherent authority to conduct warrantless searches for foreign intelligence purposes," it believes legislation requiring court orders could "provide additional assurances {to intelligence authorities} that their activities are proper and necessary.

Author: R. Jeffrey Smith
Section: A SECTION
Page: a19

Copyright 1994 The Washington Post

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"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

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Originally posted by AnthonyT:
This does seem to be very disturbing.

The idea that the president can ignore laws at will is disturbing.

If this is a provision of presidential power that is outlined in the constitution, we may need to revisit it.

--Anthony

"Liberty must not be purchased at the cost of Humanity." --Captain Robert Henner

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Forget FISA what about the 5th Ammendment?

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In Kieth, the Supreme Court unanimously and unequivocally held that, even in national security investigations, the President had no constitutional authority to conduct electronic surveillance of American citizens on American soil without a judicially issued search warrant based on a finding of probable cause.

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"...is like saying "Forget the law..."

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Originally posted by SignyM:

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In Kieth, the Supreme Court unanimously and unequivocally held that, even in national security investigations, the President had no constitutional authority to conduct electronic surveillance of American citizens on American soil without a judicially issued search warrant based on a finding of probable cause.

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http://uchicagolaw.typepad.com/faculty/2006/01/bushs_spy_progr.html

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Now, one might think that the Court’s unanimous opinion in Keith resolved the issue of the Bush spy program, but it does not, because the Court put aside, as not before it, the constitutionality of government surveillance of “foreign powers or their agents.” Although the reasoning of Keith would seem to apply to foreign as well as domestic threats to the national security, at least insofar as the surveillance involves wiretapping American citizens within the United States, Keith left the question unresolved. Thus, it is possible to argue, even after Keith, that Bush’s spy program, which purportedly is directed at those who communicate with foreign-based terrorists or terrorist organizations, is not necessarily prohibited by established Supreme Court precedent.

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Originally posted by SignyM:
But Presidents more than any other branch chip away at the Constitution, which is why this current President's unparalleled use of signing statements is so troubling. And now... back to work for me.

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Originally posted by SignyM:
Even further in the article the author basically refutes the intepretation that spying on foreign agents is substantially different from spying on citizens where they may overlap because of- among other reasons- lack of internal controls over who is defined as a foreign agent. He goes on to say that no court has ever approved warrantless searches of American citizens. My exerpt - unlike yours- was entirely reflective of the author's point.

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Originally posted by SignyM:
What, did you think I was going to defend Clinton? heh heh heh!!! )

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Originally posted by AnthonyT:
But the idea that the President can choose to neither Execute it nor Veto it seems like the system is broken.

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Originally posted by jmb9039:
Of course a huge difference is that Clinton was spying on foreign nationals, embassies, the like. Bush is spying on American citizens. Big difference.

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"The legislation grew out of a legal debate surrounding the government's secret surveillance of CIA official Aldrich H. Ames, who pleaded guilty in April to charges of spying for the former Soviet Union. Key evidence in the case was collected during secret searches of Ames's office and home in June and October 1993, both without a federal warrant."

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"foreign nationals, embassies, the like"

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No. The program Bush authorized is limited to listening to international calls were one party is a known terrorist or terrorist supporter.

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Signals intellegence of the enemy in time of war is a Presidential power, the legality of signals intellegece specifically goes back to FDR during WW2. That the other party is an American citizen coincidental.

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Essentially it comes down to a reasonable expectation of privacy. If you are calling overseas to talk with a known terrorist, you have no reasonable expectation of privacy. If you are innocent and make the call unawares then its not likely they will come breaking down your door. No harm...no foul. If you are conspiring...then you deserve to be caught.

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Citizen to citizen, domestic calls are not monitored. Only in Congress who have not been briefed say otherwise and there is no evidence that such monitoring is going on.

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What, did you think I was going to defend Clinton? heh heh heh!!! -signy
Well, you already did that. I was just checking to see if you could remain consistent.-Finn

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There are nuances to the power structure and they change over time depending upon the political strength of those who hold the offices in question.

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Originally posted by SignyM:

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There are nuances to the power structure and they change over time depending upon the political strength of those who hold the offices in question.

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Wow, and that from a lawyer. So much for being a nation of laws!

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"Furthermore, are you actually intending to imply by this statement that you condone Aldrich Ames behavior?"

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"...hundreds of calls they have listened in on none (that's right none) have resulted in arrests..."

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"..Of course with no oversight how do we know that is what is going on.."

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"The Constitution's Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects" unless the government obtains a warrant based on probable cause of criminal activity. According to the American Civil Liberties Union (ACLU), that made the search of Ames's house -- and other secret searches by the government -- probably illegal."

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