Congressional Record: July 28, 2006 (Senate)
Page S8404-S8407
PRESIDENTIAL SIGNING STATEMENTS
Mr. LEAHY. Mr. President, today, I sent a letter to President Bush.
In it I urged him to cease and desist from what has become an abuse of
Presidential signing statements. I first began drawing attention to
these matters 4 years ago, in 2002. I hoped they would end at that
time; instead, the abuses have mounted. Outstanding reporters, such as
Charles Savage of the Boston Globe, have taken note of this important
matter. They have reported on particular examples of egregious signing
statements by which the President attempts to rewrite our laws.
Editorial boards across the country have become increasingly critical,
and I would say increasingly alarmed.
This week, a distinguished bipartisan task force of the American Bar
Association, made up of Republicans and Democrats, all across the
political spectrum, released a unanimous report that was highly
critical of the President's practice as ``contrary to the rule of law
and our constitutional system of separation of powers.''
With my letter today, I am trying to point the President to a better
way. I urge him to raise any constitutional concerns he has with
legislation with those of us in Congress while the legislation is
pending and early in the process. If we agree with his analysis, we
will work together to fix it. But, ultimately, under the Constitution,
Congress writes the laws, not the President. Article I of the
Constitution gives Congress the powers to write the laws. Article II of
the Constitution requires the President to faithfully execute those
laws. His oath of office very specifically says he will faithfully
execute the laws, not make them.
I speak on this topic again today because of its immediate importance
to the reauthorization and revitalization of the Voting Rights Act that
we unanimously passed last week. The President signed it into law
yesterday. It was 98 to 0 in the Senate. It was passed by an
overwhelming bipartisan margin in the other body. I felt privileged to
be there when the President signed that law. I talked with him prior to
the signing and again after he signed. I complimented him for the words
he used in the ceremony when he signed the law. He sounded like a man
fully on board and supportive of the findings, purposes and provisions
of the law. I said after the signing, while I was there at the White
House, that what really struck me the most was the President's saying
his administration would ``vigorously enforce the provisions of this
law and we will defend it in court.'' I praised President Bush for this
statement. I did so again yesterday when the Judiciary Committee met.
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I am told that next week the President will issue a Presidential
signing statement on the Voting Rights Act reauthorization. I am urging
that this not be one of those infamous signing statements where he says
something else, seeks to undercut the law, reinterpret it or in any way
reduce his responsibility for fully and vigorously enforcing the law
and defending and upholding its provisions in legal challenges--the
Voting Rights Act especially. This act is something we don't just do
for our generation, we do it for our children and our grandchildren in
all parts of this country.
What greater right do we have as Americans than the right to vote? We
fought a revolution to have that right. We praise other nations when
they toss off the shackles of dictatorship and can now vote. Yet in
this country, for many decades, generations, large groups of people,
because of the color of their skin, were not allowed to vote.
Artificial obstructions were placed in the way so they could not vote.
We came together, Republicans and Democrats, to say these people would
be allowed to vote. The color of their skin will not make a difference.
Their ethnic background will not make a difference. They will be able
to vote. That is what was signed yesterday on the lawn of the White
House.
The Constitution places the lawmaking power, ``All Legislative
Powers,'' in the Congress. That is an Article I power. I believe our
Founders made article I to, first and foremost, put the Congress first;
the President came next.
We are at a pivotal moment in our Nation's history, where Americans
are faced with a President who makes sweeping claims for almost
unchecked Executive power.
This administration is now routinely using signing statements to
proclaim which parts of the law the President will follow, which parts
he will ignore, and which he will reinterpret. This is what I have
called ``cherry picking.'' It is wrong.
This President also used signing statements to challenge laws banning
torture, laws on affirmative action, and laws that prohibit the
censorship of scientific data. In fact, time and time again, this
President has stood before the American people and signed laws enacted
by their representatives in Congress, while all along crossing his
fingers behind his back. I don't want the Voting Rights Act to fall
into this area.
Under our constitutional system of Government, when Congress passes a
bill and the President signs it into law, that should be the end of the
story. At that moment, the President's constitutional duty is to ``take
care that the Laws be faithfully executed.'' In fact, that is his duty,
which he acknowledged yesterday with respect to the Voting Rights Act.
I commend him for that because his article II power, Executive power,
is to execute the laws. He doesn't have a legislative power.
I remind the President and this administration of this--and I have
been here with six Presidents, Democrats, and Republicans, and I have
never seen anything like this in my 32 years in the Senate. I have
never seen such a case where an administration has a sense that it is a
unitary executive. It is not a unitary executive. The legislative power
is vested in the Congress. The judicial power is vested in the
judiciary. The power to execute the laws is in the administration. But
the Constitution and the President's oath of office say I ``shall
faithfully execute.''
When the President uses signing statements to unilaterally rewrite
the laws enacted by the people's Representatives in Congress, he
undermines the rule of law and our constitutional checks and balances
designed to protect the rights of the American people.
These signing statements are a diabolical device, but this President
will continue to use and abuse them if the Republican-controlled
Congress lets him. So far, the Congress has done exactly that.
I say this with all due respect to my friends on the other side of
the aisle. The Republican-controlled Congress has become a rubberstamp.
It does not show the checks and balances that it should. Actually, the
President has not been helped because he is falling into the trap of
assuming that whatever he does is going to be rubberstamped by the
Republican-controlled Congress. I think America can do better. I think
America should have a choice. I think America should have a voice. I
don't think America should have a rubberstamp for a Congress because
whether it is torture, warrantless eavesdropping on American citizens,
or the unlawful treatment of military prisoners, the Republican-led
Congress has been willing to turn a blind eye and rubberstamp the
questionable actions of this administration, regardless of the
consequences to our Constitution and civil liberties.
Mr. President, I mentioned that this issue of signing statements is
something that has concerned me since 2002. That was also the year that
the Bush-Cheney administration was writing secret legal memoranda
seeking to justify another form of lawlessness by postulating an
unfounded and unconstitutional Commander in Chief override to our laws,
and they did this to justify the use of torture.
When that memorandum was exposed to the light of day, not by the
rubberstamp Congress, but by the press, the administration had to
withdraw it. But we read in a front-page story in the Washington Post
today of another ominous development. Apparently, the Bush-Cheney
administration lawyers are meeting with Republicans and the Republican-
controlled Congress to write immunities and amnesties into the law and
to renege on this country's commitment to human rights and the Geneva
Convention.
Mr. President, I say, for shame. To think that you can use a
rubberstamp Congress to renege on this country's proud commitment to
human rights is another aspect of the lawlessness of this
administration. But it will succeed if the Republican-led Congress
continues to act as a wholly owned subsidiary of the White House,
instead of fulfilling its responsibility as a separate and independent
branch of Government intended by the Founders and established by the
Constitution to serve as a check on the Executive. I helped write the
war crimes law that the Bush-Cheney administration is trying to
undermine. In 1996 and 1997, we acted with the support of the
Department of Defense to include expressly in our laws culpability for
violating human rights in the Geneva Conventions. The United States did
that so we could serve as a world leader and as a moral leader.
We have set standards for conduct that we demand others around the
world follow. We cannot credibly ask others to meet standards we are
unwilling to meet ourselves. Why diminish the moral leadership of the
United States by trying to quietly carve out an exception for us,
telling the rest of the world to do this but then saying we won't? We
have insisted on human rights and the rights of Americans, civilian and
military, throughout the world. Let's not tell the rest of the world:
It is do as we say, not as we do. More recently, we have seen Abu
Ghraib reported detainee abuses, investigations into the deaths of
detainees and civilians in war zones, and indictments of American
service personnel and contractors. These have all combined to stain
America's reputation and role. We must not retreat from the fight for
human rights. We must not ``cut and run'' from our responsibilities as
the world leader and the world's only superpower.
The American military men and women are the finest in the world. They
have been trained to respect human rights, and they do so. They need
not fear laws against brutality and inhumanity. We, the United States,
helped develop and then endorse the Geneva Conventions to set standards
to protect our own troops. To walk away from these protections would be
to ``cut and run'' and walk away from our men and women in uniform.
Pulling a thread from this cloak of protection risks beginning a
process of unraveling the entire fabric to the detriment of our troops
and to the great shame of the United States.
It is disheartening to read that the highest law enforcement officer
in the country is leading an effort to undercut the rule of law. Rather
than enforce the law as he is sworn to do, he is reportedly seeking to
undermine it. Instead of ignoring the laws we have long honored, our
leaders should be obeying them, not obfuscating or creating loopholes
in them. They should be saying nobody, not even the President of the
United States, is above the law. The Attorney General of the United
States
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is not an in-house counsel to the President or consigliere to the Vice
President and Secretary of Defense. His constitutional responsibility
is to enforce the law. They seem to have forgotten this, and I am
speaking today to remind them of their sworn duty.
Mr. President, before yielding the floor, I ask that a series of
items be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Committee on the Judiciary,
Washington, DC, July 28, 2006.
President George W. Bush,
The White House,
Washington, DC.
Dear President Bush: This week a distinguished Task Force
on Presidential Signing Statements and the Separation of
Powers Doctrine of the American Bar Association reported. The
Task Force unanimously opposed a President's issuance of
signing statements to claim the authority to state the
intention to disregard or decline to enforce all or part of a
law he has signed, or to interpret such a law in a manner
inconsistent with the clear intent of Congress as ``contrary
to the rule of law and our constitutional system of
separation of powers.'' The Senate Judiciary Committee held a
hearing on the matter last month. I have spoken to the issue
on a number of occasions, including this week on the floor of
the Senate.
You have produced more signing statements containing
challenges to bills you have signed into law than all prior
Presidents in our history combined. I understand that you
have produced more than 800 challenges to the bills you have
signed into law, including many challenges related to your
theory of the ``unitary executive.''
I write to urge you to cease and desist from this practice.
I urge you to recognize that our Constitution vests ``All
legislative Powers'' in the Congress and that the President's
constitutional responsibility is to ``take Care that the Laws
be faithfully executed.''
I offer the following constructive suggestion. Rather than
wait until a bill is passed, why not provide those of us
elected to Congress with any constitutional concerns you may
have regarding pending legislation at the earliest
opportunity. That would allow legislators to consider your
concerns during the legislative process.
Respectfully,
Patrick Leahy,
Ranking Democratic Member.
____
[From the New York Times, May 5, 2006]
Veto? Who Needs a Veto?
One of the abiding curiosities of the Bush administration
is that after more than five years in office, the president
has yet to issue a veto. No one since Thomas Jefferson has
stayed in the White House this long without rejecting a
single act of Congress. Some people attribute this to the
Republicans' control of the House and the Senate, and others
to Mr. Bush's reluctance to expend political capital on
anything but tax cuts for the wealthy and the war in Iraq.
Now, thanks to a recent article in The Boston Globe, we have
a better answer.
President Bush doesn't bother with vetoes; he simply
declares his intention not to enforce anything he dislikes.
Charlie Savage at The Globe reported recently that Mr. Bush
had issued more than 750 ``presidential signing statements''
declaring he wouldn't do what the laws required. Perhaps the
most infamous was the one in which he stated that he did not
really feel bound by the Congressional ban on the torture of
prisoners.
In this area, as in so many others, Mr. Bush has decided
not to take the open, forthright constitutional path. He
signed some of the laws in question with great fanfare, then
quietly registered his intention to ignore them. He placed
his imperial vision of the presidency over the will of
America's elected lawmakers. And as usual, the Republican
majority in Congress simply looked the other way. Many of the
signing statements reject efforts to curb Mr. Bush's out-of-
control sense of his powers in combating terrorism. In March,
after frequent pious declarations of his commitment to
protecting civil liberties, Mr. Bush issued a signing
statement that said he would not obey a new law requiring the
Justice Department to report on how the F.B.I. is using the
Patriot Act to search homes and secretly seize papers if he
decided that such reporting could impair national security or
executive branch operations.
In another case, the president said he would not instruct
the military to follow a law barring it from storing
illegally obtained intelligence about Americans. Now we know,
of course, that Mr. Bush had already authorized the National
Security Agency, which is run by the Pentagon, to violate the
law by eavesdropping on Americans' conversations and
reading Americans' e-mail without getting warrants.
We know from this sort of bitter experience that the
president is not simply expressing philosophical reservations
about how a particular law may affect the war on terror. The
signing statements are not even all about national security.
Mr. Bush is not willing to enforce a law protecting employees
of nuclear-related agencies if they report misdeeds to
Congress. In another case, he said he would not turn over
scientific information ``uncensored and without delay'' when
Congress needed it. (Remember the altered environmental
reports?) Mr. Bush also demurred from following a law
forbidding the Defense Department to censor the legal advice
of military lawyers. (Remember the ones who objected to the
torture-is-legal policy?) Instead, his signing statement said
military lawyers are bound to agree with political appointees
at the Justice Department and the Pentagon.
The founding fathers never conceived of anything like a
signing statement. The idea was cooked up by Edwin Meese III,
when he was the attorney general for Ronald Reagan, to expand
presidential powers. He was helped by a young lawyer who was
a true believer in the unitary presidency, a euphemism for an
autocratic executive branch that ignores Congress and the
courts. Unhappily, that lawyer, Samuel Alito Jr., is now on
the Supreme Court.
Since the Reagan era, other presidents have issued signing
statements to explain how they interpreted a law for the
purpose of enforcing it, or to register narrow constitutional
concerns. But none have done it as profligately as Mr. Bush.
(His father issued about 232 in four years, and Bill Clinton
140 in eight years.) And none have used it so clearly to make
the president the interpreter of a law's intent, instead of
Congress, and the arbiter of constitutionality, instead of
the courts.
Like many of Mr. Bush's other imperial excesses, this one
serves no legitimate purpose. Congress is run by a solid and
iron-fisted Republican majority. And there is actually a
system for the president to object to a law: he vetoes it,
and Congress then has a chance to override the veto with a
two-thirds majority. That process was good enough for 42
other presidents. But it has the disadvantage of leaving the
chief executive bound by his oath of office to abide by the
result. This president seems determined not to play by any
rules other than the ones of his own making. And that
includes the Constitution.
____
[From the Tennessean.com, July 3, 2006]
President Can't Ignore Laws He Doesn't Like
When children lie or make promises they have no intention
of keeping, they cross their fingers behind their back in a
gesture that means ``not really.''
The signing statement is President Bush's equivalent of
crossed fingers. He signs bills passed by Congress, then
attaches his own language saying how and whether he intends
to enforce them.
Last week, members of Congress from both sides of the aisle
took after the president for his use of signing statements.
The Bush administration defends the practice, saying
presidents as far back as James Monroe have used signing
statements. That is technically correct but woefully
misleading.
Signing statements began as a way for presidents to signal
their interpretation of legislation. But President Bush has
issued signing statements affecting 750 statutes--more than
all other presidents combined. And his statements can only be
read as signaling his intention to ignore provisions in the
laws. He attached signing statements to a bill banning
torture, a measure requiring the administration to supply
data on the use of the Patriot Act and a bill governing
affirmative action.
Lawmakers were particularly irked that Mr. Bush, who hasn't
vetoed a single bill in six years, seems to be using signing
statements instead of vetoes. If he vetoed legislation he
opposed, the bill would return to Congress for further debate
and an attempted override vote. Congress would get a chance
to fight the president's position. With a signing statement,
there is no debate, no second vote and no fight.
There is just government by fiat.
The irony in the signing statement issue is that the Bush
administration has gotten virtually everything it has sought
from Congress. With few exceptions--the torture ban being
one--President Bush could have persuaded Republican lawmakers
to include or omit certain provisions, crafting legislation
to his liking on the front end.
But such a public and candid approach would have required
some degree of congressional debate and public discussion.
That may not be this president's style, but it is the
democratic way. Congress should not let him get away with
this power grab.
____
[From the Boston Globe July 25, 2006]
Ending Back-Door Vetoes
Over the last five years, congressional leaders have barely
squawked as President Bush signed bills and then quietly but
explicitly declared his intention to discount key provisions
of them. He has attached such statements to more than 800
laws, at last count. Left unchallenged, the president's so-
called ``signing statements'' would represent a unilateral
change to the structure of the U.S. government, a change that
no one outside the White House played any role in enacting.
Yesterday, a bipartisan task force of the American Bar
Association concluded that these statements violate the
constitutional separation of powers. And the panel called for
federal legislation that would allow for judicial review of
any statement in which the president claims the authority to
disregard all or part of a law.
The bar association's House of Delegates has yet to vote on
the recommendations, but
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endorsing them should be virtually automatic for a group of
lawyers. Whether the White House or congressional leaders
will act on the proposal is another story. For decades,
presidents asked the bar association, which represents the
nation's lawyers, to evaluate the credentials of judicial
nominees, but the current President Bush put an end to that
practice. His administration treats the bar association as
just another interest group, to be humored or ignored as he
pleases.
But the task force has a point. Bush has employed signing
statements more often and more aggressively than any of his
predecessors, as the Globe's Charlie Savage documented in a
series of articles this spring. The laws in question touch on
fundamental values, such as whether U.S. military
interrogators should be allowed to torture detainees.
The administration's defenders say the president is merely
objecting to unconstitutional provisions specifically, ones
that infringe on the rightful powers of the executive within
otherwise desirable legislation. But even if the Bush
administration were correct on that point, back-door vetoes
only relieve Congress of its obligation to make laws that are
constitutional. The task force notes that deciding
constitutionality is up to the federal courts. ``The
Constitution is not what the President says it is,'' the
panel's report declares.
Congress was right to prohibit the use of torture by
American interrogators. If the president opposed that ban, he
had the right to veto it. That, of course, would have looked
bad, both at home and around the world. But while a veto-by-
signing-statement might have been more convenient
politically, no part of the Constitution gives the president
the right to have it both ways to enforce parts of laws that
magnify the power of the executive branch and then ignore the
rest.
____
[From the Boston Globe, May 30, 2006]
Equal Power Failure
No congressional dander was raised when the Bush Pentagon
incarcerated hundreds of uncharged men at Guantanamo Bay,
Cuba. Spaniel-like, the lawmakers hustled up legislation that
attempted to legitimize some of the illegal jailings long
after the fact.
Did electronic surveillance of American citizens, in direct
violation of the law Congress passed in 1978 setting clear
guidelines for such activity, provoke outrage on Capitol
Hill? No problem, said the leaders. We will allow the
attorney general to duck questions on it, and promote the
general who implemented it.
How about the shameful torture and humiliation of prisoners
in Iraq? Congress barely worked up enough gumption to express
its disapproval. And then, when President Bush attached a
``signing statement'' to the anti-torture legislation, saying
he really wasn't buying it, Congress yawned.
And when the Globe's Charlie Savage reported that Bush had
added such statements to more than 750 bills, claiming the
right to disobey their mandates, Congress tucked in its tail
and went to sleep.
Or so it seemed.
Now it is clear that the lawmakers simply viewed these
actions as trifling infringements of their prerogatives. They
were just waiting for the right issue to come along so that
they could assert boldly and forcefully the co-equality of
the legislative branch. They were looking for something they
considered big. And they found it.
One of their own, Representative William J. Jefferson,
Democrat of Louisiana, was accused of taking a $100,000
bribe, $90,000 of which was found in his freezer. When the
response to FBI subpoenas was slow, agents got a warrant and
raided his Capitol office. Republican and Democratic leaders
howled in unison, but for what reason?
First, it is pretty clear that Congress has no immunity
from criminal searches. The Constitution does say members are
``privileged from arrest during their attendance at the
session,'' but not in cases of ``treason, felony, and breach
of the peace.'' Floor debate is protected; bribery is not.
Second, the chorus of objections to the FBI raid was a
bipartisan public relations blunder. The public has a low
enough opinion of the skulduggery that goes on all over
Washington without Congress officially declaring Capitol Hill
a cop-free zone.
Most frustrating is Congress's choice of irritants. Many
Americans will cheer if Congress stands up on two feet and
defends its constitutionally sacrosanct right to legislate.
This right is under serious attack, but the attack is coming
from the president of the United States, not from a few FBI
gumshoes.
____
[From the Washingtonpost.com, Friday July 28, 2006]
Signing Off
Across a wide range of areas, President Bush has asserted a
grandiose vision of presidential power, one to which Congress
has largely acquiesced. From domestic surveillance to holding
detainees in the war on terrorism, the administration has
generally ignored the legislature, brushed aside inconvenient
statutes and proceeded unilaterally. All of this, as we have
argued many times, warrants grave concern and a strenuous
response. But it is worth separating that issue from the
ongoing controversy over the president's aggressive use of
what are called ``signing statements''--those formal
documents that accompany the signing of a bill into law.
Ever since the Boston Globe reported this year that the
president had used such statements to question the
constitutionality of more than 750 provisions of law, critics
across the political spectrum have been up in arms. The
Senate Judiciary Committee held hearings, and this week a
task force of the American Bar Association issued a report
accusing the president of usurping legislative powers.
President Bush brought this skirmish on himself. He has
used signing statements--which indicate that he will
interpret new laws so as to avoid the constitutional problems
he has flagged within them--far more frequently than other
presidents. In some areas, he has used them to articulate
deeply troubling views of presidential authority. Most
infamously, in signing the amendment by Sen. John McCain (R-
Ariz.) banning American personnel from using ``cruel, inhuman
or degrading'' treatment on detainees, he stated that his
administration would interpret the new law ``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''--apparently reserving for himself the
power to override the prohibition.
Still, it is important not to let Mr. Bush's ugly signing
statements bring the presidential practice into disrepute.
Signing statements are actually a useful device for
transparent and open government.
Presidents have long used signing statements to identify
particular provisions of law as potentially unconstitutional.
They have just as long declined to enforce provisions of law
they regarded as unconstitutional. Particularly since the
Carter and Reagan administrations, the use of signing
statements has been on the upswing, and that's generally a
good thing. These statements give the public and Congress
fair warning about which laws the president intends to ignore
or limit through interpretation. They thereby permit
criticism and more vibrant debate. And they have no legal
consequences over and above the president's powers to
instruct the executive branch as to how to interpret a law--
which he could do privately in any case.
While Mr. Bush has been particularly aggressive about
issuing signing statements, a great many break no new ground
but merely articulate constitutional views that the executive
branch has held across many administrations. The problem is
not that Mr. Bush reserves the right to state his views; it
is the dangerous substance of the views he sometimes states.
Mr. LEAHY. Mr. President, I yield the floor, and I suggest the
absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. DAYTON. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. DAYTON. Mr. President, may I inquire, are we in a period of
morning business?
The ACTING PRESIDENT pro tempore. The Senate is in morning business,
with Senators allowed to speak for up to 10 minutes.
____________________