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. [[Page S8405]] 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 [[Page S8406]] 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 [[Page S8407]] 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. ____________________