Sept. 5, 2006
Congress, Fight Back More And Harder!
Prospect: From Signing Statements To Surveillance, Stop Bush
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No past president has issued such statements nearly as often, or with the same intent to nullify restrictions on his power, as President Bush has. (AP)
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Interactive Domestic Surveillance The debate over the Bush administration's controversial wiretapping program.
Hamdan may also prompt renewed efforts to strip the courts of habeas corpus jurisdiction over detentions at Guantanamo, where approximately 450 prisoners are still imprisoned without charge. Hamdan rejected the administration's argument that a law enacted last year, the Detainee Treatment Act, eliminated habeas for prisoners at Guantanamo. The administration, along with some lawmakers, including South Carolina Senator Lindsey Graham, may now try to override these rulings by making a habeas repeal explicit. If they succeed, Guantanamo will revert to a legal black hole and the stage will be set for yet another major Supreme Court showdown.
Congress is also expected to turn to the issue of domestic surveillance. The administration's game plan here is similar: Dodge court rulings rebuffing its claims of unchecked executive power by seeking even greater authority from Congress.
The current controversy first erupted in December, when The New York Times reported the existence of a warrantless electronic surveillance program run by the National Security Agency that eavesdrops without court approval on Americans' international telephone and Internet communications. A subsequent story in USA Today provided additional details on NSA spying, describing the use of data-mining techniques to analyze the phone call records of tens of millions of Americans. These revelations, moreover, may only be the tip of the iceberg.
The administration responded to lawsuits challenging the NSA's warrantless surveillance by invoking the "state-secrets" privilege, claiming that the suits would compromise national security if allowed to go forward. In July, a federal judge in California rejected this argument, observing that district courts routinely handle classified information without putting the country at risk. And, just last month, a federal judge in Detroit ruled that the NSA domestic spying program violated the Foreign Intelligence Surveillance Act of 1978, which regulates intelligence agency surveillance, as well as the Fourth Amendment's prohibition against illegal searches and seizures.
Senator Specter, however, has already introduced a bill that would gut existing checks on domestic spying. The bill short-circuits current legal challenges to the NSA program by providing for their transfer to the specialized FISA court, which was established for the very different purpose of reviewing individual warrant applications. The proposed legislation would then give the FISA court authority to dismiss the suits for any reason at all. It also permits the FISA court to approve entire surveillance programs, substituting one-time wholesale review for the individualized consideration the court now gives to each warrant application. In addition, the proposed legislation states that the president has "inherent authority" to conduct surveillance, an escape clause permitting the president to commit perpetual end-runs around FISA's strictures.
Another possible area of legislative action is presidential signing statements, remarks that accompany the president's signing of a bill into law. No past president has issued such statements nearly as often, or with the same intent to nullify restrictions on his power, as George W. Bush has. When, for example, Congress passed the Detainee Treatment Act prohibiting cruel, inhuman, and degrading treatment of all prisoners in U.S. custody, the president still reserved the right to independently interpret and apply that law -- in other words, to waive the anti-torture ban whenever he deemed necessary. In July, a blue-ribbon task force of the American Bar Association issued a report criticizing the president's use of signing statements for undermining the proper relationship between the branches of government.
Indeed, though Bush has put himself above the law by creating military show-trials, mistreating detainees, and spying on Americans, it is his abuse of signing statements that has so far roused a slumbering Congress to fight back. Senator Specter has already introduced a bill that would give members of Congress the right to sue in court to challenge the president's issuance of signing statements. Lawmakers may be moved less by principle in this case than merely their sense that the president has transgressed institutional prerogatives. It's a bit dispiriting to see Congress stand up to the president only to protect its own turf rather than the rule of law. But after five years in which it has failed to do even that much, it's at least a start.
By Jonathan Hafetz
Reprinted with permission from The American Prospect, 5 Broad Street, Boston, MA 02109. All rights reserved.
| The American Prospect is America's leading liberal magazine of politics, a blend of essay, criticism, investigation,commentary, and in-depth analysis. |
Best-selling author Mitch Albom on his first nonfiction work since "Tuesdays with Morrie."
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See all 47 CommentsAG Alberto Gonzalez is no longer "house counsel" for the Bush family and he should not be allowed to operate as such.
To bad for us, most of the above protections from presidential abuse will not be put in check with the RUBBER STAMP united GOP. That's why we need to VOTE these mindless talking point passing Republicans out of power, and replace them with folks who can think freely and listen. If we don't we'll be high on money and low on cash for the rest of our lives. Remember this: The days are long but the weeks are fast. So the next time cursory leaders want to take power in the United States, I'm not going to let them use up a tenth of my life doing it.
Please President Bush, follow our laws!
Please President Bush, follow our laws!
To President Bush: Follow the laws!
To President Bush: Follow the laws!
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See all 47 Comments