THE NEXT ACT
Is a damaged Administration less likely to attack Iran, or more?by SEYMOUR M. HERSH
A month before the November elections, Vice-President Dick Cheney was sitting in on a national-security discussion at the Executive Office Building. The talk took a political turn: what if the Democrats won both the Senate and the House? How would that affect policy toward Iran, which is believed to be on the verge of becoming a nuclear power? At that point, according to someone familiar with the discussion, Cheney began reminiscing about his job as a lineman, in the early nineteen-sixties, for a power company in Wyoming. Copper wire was expensive, and the linemen were instructed to return all unused pieces three feet or longer. No one wanted to deal with the paperwork that resulted, Cheney said, so he and his colleagues found a solution: putting “shorteners” on the wire—that is, cutting it into short pieces and tossing the leftovers at the end of the workday. If the Democrats won on November 7th, the Vice-President said, that victory would not stop the Administration from pursuing a military option with Iran. The White House would put “shorteners” on any legislative restrictions, Cheney said, and thus stop Congress from getting in its way.
The Bush Administration has all but ignored Congress for the last six years. They’ve gotten used to doing whatever they want to, pretty much with impunity. Cheney’s casual comment about "shorteners" is no small joke. One of the ways they "shorten" Congress is with Signing Statements, add-ons by President Bush that basically neutralize Congressional Bills. John Dean reviewed Bush’s use of Signing Statements back in January. I thought I’d repost it for review. I expect we’ll be seeing a lot of "shorteners" in the coming days. If this is a topic you care about, I’d suggest reading the whole thing and bookmarking it. The arrogant duo seems to think Congress is an advisory body at best, and this strikes me as the place where the contemporary Civil War in America is going to be fought…
By JOHN W. DEAN
Presidential signing statements are old news to anyone who has served in the White House counsel’s office. Presidents have long used them to add their two cents when a law passed by Congress has provisions they do not like, yet they are not inclined to veto it. Nixon’s statements, for example, often related to spending authorization laws which he felt were excessive and contrary to his fiscal policies…
Relying On Command, Rather Than Persuasion
Phillip Cooper is a leading expert on signing statements. His 2002 book, By Order of the President: The Use and Abuse of Executive Direct Action, assesses the uses and abuses of signing statements by presidents Ronald Reagan, George H.W. Bush and Bill Clinton. Cooper has updated his material in a recent essay for the Presidential Studies Quarterly, to encompass the use of signing statements by now-President Bush as well…
Bush has quietly been using these statements to bolster presidential powers. It is a calculated, systematic scheme that has gone largely unnoticed (even though these statements are published in the Weekly Compilation of Presidential Documents) until recently, when President Bush’s used a signing statement to attempt to nullify the recent, controversial McCain amendment regarding torture, which drew some media attention.
Pumping Up the Bush Presidency With Signing Statements
…As Phillip Cooper observes, the President’s signing statements are, in some instances, effectively rewriting the laws by reinterpreting how the law will be implemented. Notably, Cooper finds some of Bush’s signing statements – and he has the benefit of judging them against his extensive knowledge of other President’s signing statements — "excessive, unhelpful, and needlessly confrontational."
The Constitutional and Practical Problems With Bush’s Use of Signing Statements
Given the incredible number of constitutional challenges Bush is issuing to new laws, without vetoing them, his use of signing statements is going to sooner or later put him in an untenable position. And there is a strong argument that it has already put him in a position contrary to Supreme Court precedent, and the Constitution, vis-à-vis the veto power.
Impact Of Presidential Signing Statements
The immediate impact of signing statements, of course, is felt within the Executive Branch: As I noted, Bush’s statements will likely have a direct influence on how that branch’s agencies and departments interpret and enforce the law.
It is remarkable that Bush believes he can ignore a law, and protect himself, through a signing statement. Despite the McCain Amendment’s clear anti-torture stance, the military may feel free to use torture anyway, based on the President’s attempt to use a signing statement to wholly undercut the bill.
This kind of expansive use of a signing statement presents not only Presentment Clause problems, but also clashes with the Constitutional implication that a veto is the President’s only and exclusive avenue to prevent a bill’s becoming law. The powers of foot-dragging and resistance-by-signing-statement, are not mentioned in the Constitution alongside the veto, after all. Congress wanted to impeach Nixon for impounding money he thought should not be spent. Telling Congress its laws do not apply makes Nixon’s impounding look like cooperation with Congress, by comparison.
In short, Bush’s signing statements, which are now going over the top, are going to cause a Congressional reaction. It is inevitable. If Republican lose control of either the House or Senate – and perhaps even if they don’t, if the subject is torture or an egregious violation of civil liberties — then the Bush/Cheney administration will wish it had not issued all those signing statements.
Indeed, the Administration may be eating its words – with Congress holding the plate out, and forcing the unconstitutional verbiage back down. That, in the end, is the only kind of torture Americans ought to countenance.
Interested readers may also want to consult several recent Findlaw columns that have addressed President Bush’s use of signing statements. Edward Lazarus noted Bush’s use of a signing statements as an example of his "interpret[ing] away constraints on his power," such as Senator John McCain’s amendment prohibiting American forces from engaging in torture and the applications of the Foreign Surveillance Intelligence Act to electronic surveillance of Americans. Jennifer Van Bergen addressed signing statements in the broader context of the Bush’s Administration’s embrace of the so-called "unitary executive" concept, the claim that a president totally controls the executive branch and has standing equal to the courts in interpreting the constitution as it relates to his branch.
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