Highlights of This Page
US using Iranian terrorist group to foment insurrection inside Iran. Iraqi National Assembly elects Nouri al-Maliki as Prime Minister. Bush uses signing statements to break, ignore laws with impunity.
See my Update Information page for an explanation of why this and other pages between September 2004 and September 2006 are not yet complete.
- April: Valerie Plame Wilson, who left the CIA at the end of 2005, and her husband Joseph Wilson file a civil lawsuit against Dick Cheney, Karl Rove, Lewis Libby, and unnamed White House officials.
The Wilsons claim that these officials violated their constitutional rights by conspiring to "discredit, punish, and seek revenge" them in the combination of the Wilson smear campaign orchestrated by Rove and the White House, and in the resulting "Plamegate" CIA leak scandal. Plame is also writing a memoir, tentatively titled Fair Game, the term Rove used with MSNBC's Chris Matthews to describe what he considered her. (Michael Isikoff and David Corn)
- April 2: Condoleezza Rice and her British counterpart, Foreign Minister Jack Straw, fly to Baghdad to pressure interim prime minister Ibrahim al-Jafari to drop his bid to become Iraq's first permanent prime minister.
Iraq war and occupation
Al-Jafari, a Shi'ite with strong connections to Moqtada al-Sadr and a favorite of the Iranian government, has no support among either the Sunnis or the Kurds, and is viewed by the US and others as a weak leader. In their meeting with al-Jafari, Rice says bluntly, "Time to step aside." Al-Jafari will not commit to doing anything. In a press conference after the meeting, when Rice is asked what she will do if she doesn't see a new government taking shape in five weeks, she replies, "I can assure you that I'm not going to wait five weeks."
- National security advisor Stephen Hadley's chief for Iraq, Meghan O'Sullivan, and US ambassador to Iraq Zalmay Khalilzad meet with al-Jafari after Rice and Straw leave. They press the fact that under the new Iraqi constitution, the prime minister must form a government with the support and participation of all three communities -- Sunni, Shi'ite, and Kurd. Al-Jafari has so far refused to work with anyone but his own Shi'ites. Al-Jafari disputes that assessment. Neither the US nor Britain intends to allow Iraq to have a prime minister so in the pocket of al-Sadr and the Iranians. But at the moment, al-Jafari is standing firm in his intentions to become Iraq's first real prime minister. He will reluctantly step aside on April 20. (Bob Woodward)
- April 3: The American Bar Association votes unanimously to investigate Bush's use of signing statements to duck, ignore, and flaunt laws passed by Congress which he feels he does not have to obey.
The ABA approves the creation of a bipartisan legal panel staffed with some of America's most respected lawyers and jurists, including a former federal appeals court chief judge, a former FBI director, and several prominent scholars, all of whom will evaluate Bush's assertions that he has the power to ignore laws that conflict with his interpretation of the Constitution. (See earlier items about Bush's unconstitutional use of signing statements.)
- ABa president Michael Greco says he proposed the task force because he believes the scope and aggressiveness of Bush's signing statements may raise serious constitutional concerns. The ABA, Greco says, has a duty to speak out about such legal issues to the public, the courts, and Congress: "The American Bar Association feels a very serious obligation to ensure that when there are legal issues that affect the American people, the ABA adopts a policy regarding such issues and then speaks out about it. In this instance, the president's practice of attaching signing statements to laws squarely presents a constitutional issue about the separation of powers among the three branches."
- Panel member Mickey Edwards, a former Republican Congressman, says, "I think one of the most critical issues in the country right now is the extent to which the White House has tried to expand its powers and basically tried to cut the legislative branch out of its own constitutionally equal role, and the signing statements are a particularly egregious example of that. I've been doing a lot of speaking and writing about this, and when the ABA said they were looking to take a position on signing statements, I said that's serious because those people carry a lot of weight." Retired federal judge William Sessions, who headed the FBI under Reagan and the elder Bush, says the statements raise a "serious problem" for the American constitutional system. "I think it's very important for the people of the United States to have trust and reliance that the president is not going around the law," he says. "The importance of it speaks for itself." A third panel member, former chief appellate judge Patricia Wald, says she has monitored the use of signing statements by previous administrations, but "the accelerated use in recent years presents a real question about separation of powers and checks and balances." Wald also says she is interested in studying how signing statements affect the federal bureaucracy. As a judge, she dealt with many cases involving challenges to decisions made by administrative agencies. She says that courts are deferential to such decisions because they are supposed to be made by objective specialists in the agencies. But a heavy use of signing statements could call that assumption into question. "If Congress passes a law telling the people in the bureaucracy that 'this is what you should do,' and the president signs it but attaches a statement saying 'I don't want you to do it,' how is that going to affect the motivation of the bureaucracy?" she asks.
- Panel member Stephen Salzburg, a George Washington University law professor, says that signing statements themselves are neither unconstitutional nor legally binding. "The president can say anything he wants when he signs a bill," says Saltzburg, but "what does it say about respect for the Constitution and for the notion of checks and balances to have the president repeatedly claim the authority not to obey statutes, which he is signing into law?"
- Other panel members include Harold Koh, dean of Yale Law School and a former official in the Reagan and Clinton administrations; Kathleen Sullivan, former dean of Stanford Law School; Charles Ogletree, a Harvard law professor; former Democratic legal counselor Mark Agrast, and former DOJ official and Senate legal counsel Thomas Susman. The task force is chaired by Neal Sonnett, a former federal prosecutor who earlier this year chaired a similar ABA panel of bipartisan specialists who studied the legality of Bush's warrantless spying program. The task force is scheduled to produce its final report during the summer, and the entire ABA House of Delegates will vote on whether or not to adopt its findings in August. (Boston Globe)
- April 9: The Bush administration is studying various options in preparing for military strikes against Iran.
War with Iran
Officials say the preparations are merely part of the administration's broader strategy to use coercive diplomacy to pressure Tehran into abandoning its supposed nuclear weapons development program, a program that an August 2005 National Intelligence Estimate says is at least ten years away from being able to field a nuclear weapon. Critics say that any such strike would not be effective in the long term, and would merely push Iran to work harder to develop a nuclear bomb.
- Some of the strategies under consideration include air strikes against targets such as the uranium enrichment plant at Natanz and the uranium conversion facility at Isfahan. Other plans cover a more comprehensive air strike strategy designed to lay waste to Iran's military. In the White House's new National Security Strategy, released last month, it labeled Iran as the most serious challenge to the US posed by any country.
- Many military officers and specialists believe that Bush's saber rattling will just inflame international opinion even more against the US, particularly in the Muslim world, and make US forces in Iraq more vulnerable to Iranian retaliations. "My sense is that any talk of a strike is the diplomatic gambit to keep pressure on others that if they don't help solve the problem, we will have to," says Kori Schake, who worked on Bush's National Security Council staff and now teaches at West Point. Others believe is is merely bluster. "The Bush team is looking at the viability of airstrikes simply because many think airstrikes are the only real option ahead," says former Pentagon policy official Kurt Campbell.
- While Bush officials are working with, or pretending to work with, its European allies on a diplomatic solution, the administration is coming under increasing pressure from Israel to do something tangible about Iran, which it perceives as an imminent threat to its existence.
- Bush has been careful never to rule out the possibility of a military strike against Iran in his public rhetoric, particularly if it ever does anything against Israel, and Dick Cheney and UN ambassador John Bolton have gone even farther, issuing numerous veiled threats against Iran. Bush has also spoken with several Republican senators about the viability of regime change in Iran.
- The US has flown numerous reconnaissance missions over Iran, using unmanned surveillance drones, since 2004, and has inserted several combat teams inside Iran to collect intelligence and military targeting data. Israel has gone farther, training its military for a heavy strike at the Natanz nuclear power plant and other targets, but US strategists do not believe Israel has the capability of destroying Israel's nuclear capacity without using its own nuclear arsenal. In return, Iran has worked to reinforce and "harden" its key nuclear and military sites, and has made a show of testing missiles.
- Many US strategists say that if the US really wants to obliterate Iran's nuclear capability, it will have to use nuclear weapons itself. Retired Air Force colonel Sam Gardiner, an expert in wargames and targeting who teaches at the National Defense University, recently gamed an attack against Iran, and said that to achieve any measure of success, the US would have to conduct at least five days' worth of attacks that successfully hit at least 400 different targets. 75 of those targets would require penetrating weapons. Special Operations forces on the ground would be required. Joseph Cirincione of the Carnegie Endowment for International Peace says that any attack would only firm up Iranian resolve to develop weapons. "Whatever you do," he says, "is almost certain to accelerate a nuclear bomb program rather than destroy it." (Washington Post)
US using Iranian terrorist group to foment insurrection inside Iran
- April 13: The press learns that the Pentagon has ordered the "outsourcing" of special operations in Iraq to a violent Iranian guerrilla group with Communist leanings that has been labeled a terrorist organization by the US government.
War with Iran
The group is a right-wing terror organization called the Mujahedeen-e Khalq (MEK), which is being "run" in two southern regional areas of Iran, the Sunni stronghold of Baluchistan and the Shi'ite enclave of Khuzestan. Both regions have been rocked by a series of deadly attacks in recent months. The orders to use MEK in Iraq originated shortly after the March 2003 invasion; they came from Defense Secretary Donald Rumsfeld and gained the critical support of Dick Cheney. Opposition from the State Department, National Security Council and then-National Security Advisor, Condoleezza Rice, had little impact.
- "The MEK is run by a husband and wife team who were given bases in northern Baghdad by Saddam," says an unnamed counterterrorism official. "The US army secured a key MEK facility 60 miles northwest of Baghdad shortly after the 2003 invasion, but they did not secure the MEK and let them basically be because [then Deputy Defense Secretary Paul] Wolfowitz was thinking ahead to Iran." About 3,500 MEK fighters were captured and detained shortly after the invasion. The official continues, "We disarmed [the captured MEK] of major weapons but not small arms. Rumsfeld was pushing to use them as a military special ops team, but policy infighting between their camp and Condi, but she was able to fight them off for a while." Another intelligence source says the policy infighting ended last year when Rumsfeld, under pressure from Cheney, came up with a plan to "convert" the MEK by having them simply quit their organization. "These guys are nuts," says the source. "Cambone and those guys made MEK members swear an oath to Democracy and resign from the MEK and then our guys incorporated them into their unit and trained them." Stephen Cambone is the Undersecretary of Defense for Intelligence.
- The idea of rearming and deploying MEK fighters, who are part of a violent terrorist organization that has struck at Iranian and US targets, alarmed many in the intelligence and military communities, but Rumsfeld, under orders from Cheney, went forward: he ordered that the group begin undertaking special ops missions into Iran to pave the way for a potential US military strike against that country. The idea seems to be, according to a UN official, that the MEK special ops -- or terrorist strikes -- will foment an insurgency among Iranian Sunnis against the Iranian government. "They are doing whatever they want, no oversight at all," says an intelligence source. The UN official puts it more bluntly: "We are already at war." MEK fighters have taken part in operations within Iran that have included the use of unmanned drones operated by American forces.
- Saddam Hussein had used the MEK for acts of terror against non-Sunni Muslims and had assigned domestic security detail to the MEK as a way of policing dissent among his own people. It was under the guidance of MEK 'policing' that Iraqi citizens who were not Sunni were routinely tortured, attacked and arrested.
- It may be the British who slow the use of the MEK to prepare for a strike against Iran. British Foreign Secretary Jack Straw has called an American strike on Iran "inconceivable," while Prime Minister Tony Blair, more cautious, has said he's keeping all his options open. Asked about the MEK, a senior British intelligence official says that the British are not yet sure of what the situation on Iran's southern border is, but vehemently condemns any joint activity with the terrorist organization. "We don't know who precisely is carrying out those attacks in the south but we believe it is MEK," he says. He confirms that there is at least one US unit inside Iran gathering information, but says he isn't sure that that unit is involved with MEK. "The people who are inside Iran are from a US Special mission unit," the source says. "They are called by codenames, but would not be involved in the bomb blasts. They want to get in, get the intelligence and go out with anyone knowing they have been there. But the bomb blasts might be diversions away from the operations by this US special mission unit. The British are definitely not involved in any of this. ...We have very strict rules and can't go consorting with terrorists. We did it in Northern Ireland. No more." (Raw Story)
"I'm the decider, and I decide what is best. And what's best is for Don Rumsfeld to remain as the Secretary of Defense." -- George W. Bush, April 18, 2006
- April 18: During a rambling press conference where he repeatedly touts his commitment to change and his bold decisiveness,
Iraq war and occupation
Donald Rumsfeld is asked about the initial plans to send around 400,000 US troops to Iraq, a decision widely known to have been personally vetoed by Rumsfeld in favor of a much smaller force. But in the conference, Rumsfeld blames former US military commander General Tommy Franks. "...General Franks called me and said stop the force flow," Rumsfeld says. "He didn't need more." Rumsfeld says he went with the recommendations of his ground commander. It is a breathtakingly blatant rewriting of the facts; worse, Rumsfeld asks for, and receives, verification of his revisionism from General Peter Pace, the deputy chair of the Joint Chiefs, during the conference. (Bob Woodward)
- April 20: Dick Cheney and the Defense Department have hired Iranian arms merchant and con man Manucher Ghorbanifar as their "man on the ground," in order to report on any interaction and attempts at negotiations between Iranian officials and US ambassador to Iraq, Zalmay Khalilzad, according to three intelligence sources.
War with Iran
Cheney, Donald Rumsfeld, and their neoconservative allies in the Pentagon do not want any productive dialogue between Iran and the US, and Ghorbanifar's job is, apparently, to ensure that Cheney and Rumsfeld are given enough information about Khalilzad's negotiations to successfully derail them and keep the US and Iran at loggerheads. Asked if Ghorbanifar was essentially being employed as a spy, one former senior counterintelligence official says, "You could put it that way."
- While some elements of the Bush administration and the State Department wish to broaden dialogue with Iran, in order to defuse tensions in the Middle East, lessen Iran's alleged influence among Iraqi Shi'ite insurgents, and keep closer tabs on Iran's burgeoning nuclear power program, Cheney is the point man for a hawkish, neoconservative element in the administration that wants to keep relations between Iran and the US as confrontational and dangerous as possible. Many suspect that Cheney, Rumsfeld, and their allies and colleagues wish to foment a war with Iran.
- It is certain that, while Bush officials say that the Iranians are blocking its attempts at opening diplomatic talks, the opposite is true. All three intelligence sources say that it is the US, not Iran, that is blocking attempts to open talks, an assertion confirmed by UN Security Council sources. For example, earlier in April 2006, Iran's UN ambassador, Javad Zarif, published an op-ed in the New York Times calling for talks and promising that Iran is committed to nuclear nonproliferation. But instead of responding positively, Bush officials have continued to answer Iran with belligerent, groundless accusations and veiled threats.
- Interestingly, House Intelligence Committee Chairman Peter Hoekstra, a Republican, approved using Ghorbanifar as an intermediary. Hoekstra attended at least one meeting in Paris with fellow House Republican Curt Weldon and Defense Department official Harold Rhode to meet with Ghorbanifar. (See the December 2001 page for more information about previous meetings between Rhode, Ghorbanifar, and other American and foreign officials to discuss regime change in Iran.) "Hoekstra okayed these channels," says an intelligence source. "He gave his blessing." (See the April 2003 item about Weldon's previous meetings with either Ghorbanifar or Ghorbanifar's associate Fereidoun Mahdavi, whom Weldon nicknamed "Ali," and who apparently successfully used Weldon to pass a raft of disinformation to the Bush administration. Hoekstra and Weldon met with "Ali" in July 2005, accompanied by Iran-Contra go-between Vaughn Forrest; the participants met again in either the spring or summer of 2006, though word of that meeting has been kept closely guarded.
- Ghorbanifar is best remembered for his own shadowy role in facilitating contacts between the Reagan adminstration and the Iranian regime of the Ayatollah Khomeini when Reagan officials secretly negotiated an arms-for-hostage deal with the Iranians, a deal that was later uncovered as part of the Iran-Contra scandal. But Ghorbanifar is also known to have played some part, however unclear, in the more recent attempt to use fraudulent documents to push the assertion that Iraq attempted to buy weapons-grade uranium from Niger. He has long been marked as a fabricator and a liar by the CIA. As for Forrest, his current connection may be through Hoekstra. "Vaughn Forrest [has] for years done the work for the House Subcommittee on Terrorism, a group funded entirely by the Republican members of Congress, not an official Congressional committee," says a a former high-ranking intelligence official, referring to the group more accurately known as the House Task Force on Terrorism and Unconventional Warfare. "They have been conduits for Likud propaganda crap, and allegedly [Forrest's close associate Yosef] Bodansky has received some funding from Likud." Of Hoekstra, another intelligence official asks incredulously, "Who elected Hoekstra to run sources? And how is Hoekstra from his position able to judge whether or not this information given [to him] by a fabricator is accurate or not?" (Raw Story, Raw Story)
Iraqi National Assembly elects Nouri al-Maliki as Prime Minister
- April 21: The Iraqi National Assembly chooses Nouri al-Maliki, a stiff, cerebral Shi'ite, as the country's new prime minister.
Iraq war and occupation
US intelligence knows very little about al-Maliki. He was in exile from the Hussein regime for 23 years, apparently spending most of his time in Syria and Iran, and was a spokesman for the powerful Shi'ite Dawa Party and the deputy to transitional prime minister Ibrahim al-Jafari. Four days later, al-Maliki meets with Donald Rumsfeld, Condoleezza Rice, and Zalmay Khalilzad in Baghdad. He says he intends on improving relations between the Shi'ites, Sunnis, and Kurds; that will lessen the violence rocking his country. He also wants to oversee improvements in basic services such as electricity, water, and sewage. He says he does not trust the Iraqi police, and intends to revamp and overhaul the corruption-riddled Ministry of the Interior, which oversees the police. Before long, Rumsfeld opens, indirectly, the subject of US withdrawal of troops. "It's way too early to be talking about that," al-Maliki protests. Rice leaves Baghdad impressed with al-Maliki's determination to take responsibilities on his own shoulders, and tells Bush on her return that al-Maliki is the first Iraqi leader to say, "This is on me."
- Rice's communications advisor, Jim Wilkinson, stays with al-Maliki as a liason between the State Department and the Prime Minister's office. Almost immediately, they run into bureaucratic snags. Al-Maliki has brought in Dr. Salah Abdulrazzak as his spokesman, along with Abdulrazzak's family; rightfully fearing for their lives, he requests that they be found living quarters in the Green Zone. Wilkinson has to fight merely to get Abdulrazzak a room at the Al-Rashid Hotel. Wilkinson then runs into static in his attempts to get al-Maliki's chief of staff and spokesmen credentials to allow them into the Green Zone. Six or eight weeks, he is told; Wilkinson has to throw a fit and get Khalilzad involved to get the men credentials in a reasonable amount of time. Wilkinson scrounges computers for al-Maliki's office, battles to get phones installed, and even has to give al-Maliki's office pens and paper from his own office supplies. Al-Maliki tells Wilkinson that he can only invite around 10% of the National Assembly to his inauguration because the large hall that the ceremony will be held in lacks air conditioning. Wilkinson manages to get the embassy and the military to cooperate in installing an air conditioning system. Wilkinson's first impression of al-Maliki is that the new prime minister is very competent as a manager, and says all the right things, but can't get a read on what his new policies might be.
- Wilkinson discusses with al-Maliki the innate contradiction in the US presence there: while Bush and Rice continue to insist that victory is essential in Iraq for the stability of the Middle East and, indeed, for the future of civilization, the internal pressure in the military is to get out as quickly as possible. Wilkinson finally tells al-Maliki that his government is Iraq's last chance to get it right; if he can't show his people why democracy is better, can't get services up and running, and can't tighten security, it will collapse. "I'm not sure what Plan B is," Wilkinson says. Will al-Maliki be judged by American mistakes, Wilkinson wonders, and will America be judged by his? And what, exactly, will defeat Islamic terrorism? On the other side of the debate, Rice's Iraq policy coordinator, Jim Jeffrey, thinks the whole idea of the al-Maliki government being Iraq's last chance for democracy is bunk. All it takes to win, he thinks, is the willpower of the US to force a victory. The US only lost in Vietnam because they turned and fled. If the US leaves, either the country descends into anarchy or becomes an extremist "rogue nation" like Iran. And, of course, there is Iraq's oil. The US isn't leaving, Jeffrey determines, no matter whether al-Maliki stands or falls. (Bob Woodward, T. Christian Miller)
"I can look you in the eye and tell you I feel I've tried to solve the problem diplomatically to the max, and would have committed troops both in Afghanistan and Iraq knowing what I know today." -- George W. Bush, April 24, 2006
Bush uses signing statements to break, ignore laws with impunity
- April 30: In his more than five years as president, Bush has used "signing statements" to claim the authority to disobey and ignore over 750 laws that he himself has signed into law, claiming that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution.
The Boston Globe's Charlie Savage examines Bush's use of signing statements in this and others of a series of articles, which in 2007 will win a Pulitzer Prize for reporting. (Note: Savage refrains from making editorial comments and observations throughout his series. The editor of this site does not. Some of the more assertive language in this item, as with others throughout this site, is mine and not the original author's.)
- Bush has claimed that, among other laws, he can ignore 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. This is part of his administration's broader attempt to assert the "unitary executive" theory of the presidency, which in essence says that an American president is, like a king or dictator, essentially above the law. According to this theory, the president supersedes laws passed by Congress, and can enforce them, follow them, ignore them, or break them at his pleasure. Naturally, Constitutional scholars disagree, noting that 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.
- Some former administration officers advance the specious argument that Bush is doing nothing worrisome because, in many instances, he isn't actually refusing to obey a law, he is just reserving the right to do so if he wants to. But they ignore the recent disclosures of Bush's illegal, warrantless domestic spying program, in which Bush ignored the law that requires warrants to tap the phones of American citizens. And that is just one example. Many legal specialists say that Bush is anything but reluctant to bypass laws he believes he has the constitutional authority to override. When Bush -- or more specifically, Bush, along with his legal advisors and his vice president, Dick Cheney -- feels that a law infringes on his power under the Constitution as the head of the executive branch and as commander in chief of the military, he does not hesitate to ignore or actually break a law. Although other presidents have occasionally engaged in such actions, Bush has gone much farther than any of his predecessors in asserting his powers of office.
- Indeed, 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. Law professor Phillip Cooper, an expert on Bush's claims of executive power, says that 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," he says. "This is really big, very expansive, and very significant."
- Until recently, Congress and the mainstream media paid little attention to Bush's assumptions of unlimited power. (Isolated, liberal voices in both sectors have been raising a ruckus about Bush's drive towards all-consuming executive power for years.) But that has changed in recent months, with increasing levels of publicity surrounding the domestic surveillance program, Bush's refusal to uphold the Congressional ban on torture, and his refusal to give Congress detailed reports on how he is using the USA Patriot Act. Savage, the Globe reporter responsible for this and other reports, was refused access to White House or Department of Justice lawyers to explain Bush's claims; instead, Savage was merely steered to previous responses to questions about Bush's assertions that he could ignore sections of the Patriot Act. At the time, White House spokespersons said that Bush was merely 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."
- Those statements are anything but accurate. No president has ever used signing statements in such a broad, sweeping manner, and the phrase "in a manner that is consistent with the Constitution" is problematic at best because, legal scholars say, Bush is setting himself up as the ultimate authority on Constitutional interpretation. I can do it because I say the Constitution gives me the authority, Bush is saying with his actions, and he is doing so in an unprecedented fashion.
- Bush has yet to veto a bill in his five and a half years in office. Instead, he signs the bills that pass the Republican-controlled Congress into law, often in lavish signing ceremonies filled with praise for the bills and their sponsors. Then, after the cameras are off and the lawmakers have left, Bush quietly files a signing statement in which he asserts his intention not to follow the law. These statements are recorded in the Federal Register. Savage reports, "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." Political science professor Christopher Kelley says, "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."
- Bush has been particularly quick to bypass and ignore laws involving the military. Under the Constitution, Congress, not the president, has 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 drug-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 does not have to obey laws requiring him to tell Congress before diverting money from authorized programs into secret operations, such as the "black sites" used to house, interrogate, and torture suspected terrorists.
- Congress has 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 passed the provision in August 2004, before the existence of Bush's domestic spying program became public knowledge, and passed it again after the program was revealed in December 2005. Bush signed both provisions into law, and then declared that, as commander in chief, he does not have to obey the law, and it is for him and only him to decide whether the military can use such intelligence.
- In October 2004, the ongoing revelations of torture and abuse from Abu Ghraib led to Congress's passage of a series of new rules and regulations for military prisons. Bush signed each provision into law, then said he doesn't have to follow those laws as commander in chief. 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." Instead, Bush asserted that he can ignore any or all of those 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.
- As egregrious as the other examples are, the last one is particularly interesting. Bush seems to have a particular aversion to allowing any real oversight to take place, especially if such oversight has to do with the occupation of Iraq. When Congress created the position of inspector general for the Iraq occupation in November 2003, a position that required the IG to notify Congress if a US official refused to cooperate with his inquiries, Bush said that the IG could not give any information to Congress without permission from the administration.
- Oversight in general seems to be anathema for Bush. Many of the laws he has stated he can ignore 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. It contained eleven other requirements for reports about such issues as civil liberties, security clearances, border security, and counternarcotics efforts. After signing the bill, Bush issued a signing statement saying he could withhold all the information sought by Congress. And Congress's creation of the Department of Homeland Security in 2002 mandated that oversight committees must be given information about vulnerabilities at chemical plants and the screening of checked bags at airports, and said that Congress must be shown unaltered reports about problems with visa services prepared by a new immigration ombudsman. Bush asserted the right to withhold the information and alter the reports.
- Bush has also said he could ignore and even nullify laws creating "whistleblower" job protections for federal employees that would stop any attempt to fire them as punishment for telling a member of Congress about possible government wrongdoing. When Congress passed a huge energy package in August, for example, it strengthened whistle-blower protections for employees at the Department of Energy and the Nuclear Regulatory Commission. Lawmakers wanted to ensure that Bush appointees were less able to intimidate nuclear specialists and keep them from testifying about safety issues regarding the planned nuclear waste site at Nevada's Yucca Mountain. But when Bush signed the energy bill, he issued a signing statement declaring that the executive branch could ignore the whistle-blower protections.
- Bush's signing statements have not been restricted to laws that he himself signed into law. The whistleblower statement signaled that he felt no compunction to obey laws that have been on the books for years before he took office. Same with the domestic spying program; in that case, Bush violated a surveillance law enacted 23 years before he took office.
- Law professor and executive-power expert David Golove says Bush has cast a cloud over "the whole idea that there is a rule of law," because no one can be certain of which laws Bush thinks are valid and which he thinks he can ignore. "Where you have a president who is willing to declare vast quantities of the legislation that is passed during his term unconstitutional, it implies that he also thinks a very significant amount of the other laws that were already on the books before he became president are also unconstitutional."
- Bush is also jealous of his own supremacy when the law, or the courts, have assigned other executive branch officials the power to act independently of the president in certain instances, even when the Supreme Court has ruled in favor of those assignations. For example, the court has upheld laws creating special prosecutors free of Justice Department oversight and insulating the board of the Federal Trade Commission from political interference, but Bush said in a signing statement that the Constitution lets him control any executive official, no matter what a statute passed by Congress might say. In November 2002, for example, Congress, seeking to generate independent statistics about student performance, passed a law setting up an educational research institute to conduct studies and publish reports "without the approval" of the Secretary of Education. Bush was having none of it, and decreed that the institute's director would be "subject to the supervision and direction of the secretary of education."
- Affirmative action rulings have also earned a signatory smirk from Bush. In 2003, the Supreme Court upheld a race-conscious university admissions program over the strong objections of Bush, who argued that such programs should be struck down as unconstitutional. Bush has also taken exception -- at least nine times -- to provisions that seek to ensure that minorities are represented among recipients of government jobs, contracts, and grants. Each time, he singled out the provisions, declaring that he would construe them "in a manner consistent with" the Constitution's guarantee of "equal protection" to all -- which many legal scholars say amounts to an argument that the affirmative-action provisions represent reverse discrimination against whites.
- Golove says that to the extent Bush is interpreting the Constitution in defiance of the Supreme Court's precedents, he threatens to "overturn the existing structures of constitutional law," which seems to be exactly the point. A president who ignores the court, backed by a Congress that is unwilling to challenge him, Golove says, can make the Constitution simply "disappear."
- Such signing statements have been used on occasion as far back as the 19th century. But the first modern president to make extensive use of signing statements was Ronald Reagan, after his Attorney General, Edwin Meese, decided that signing statements could be used to increase the power of the president. Savage explains: "When interpreting an ambiguous law, courts often look at the statute's legislative history, debate and testimony, to see what Congress intended it to mean. Meese realized that recording what the president thought the law meant in a signing statement might increase a president's influence over future court rulings. Under Meese's direction in 1986, a young Justice Department lawyer named Samuel A. Alito Jr. wrote a strategy memo about signing statements. It came to light in late 2005, after Bush named Alito to the Supreme Court. In the memo, Alito predicted that Congress would resent the president's attempt to grab some of its power by seizing 'the last word on questions of interpretation.' He suggested that Reagan's legal team should 'concentrate on points of true ambiguity, rather than issuing interpretations that may seem to conflict with those of Congress.'"
- George H.W. Bush challenged the law 232 times in his four years in office; during Bill Clinton's eight years, he issued 140 challenges. Many of these involved longstanding legal ambiguities and points of conflict between the president and Congress. But Reagan, the elder Bush, and Clinton made far more use of the presidential veto, rather than signing a bill into law and then issuing an edict saying that he didn't have to obey it. The veto is far more aboveboard and open, and gives Congress a chance to modify the bill or override their decision. Instead, George W. Bush has abandoned the veto and, by use of the signing statement (which has no basis in law whatsoever), has attempted to cut Congress out of the process, abandoning even the caution counseled by Alito in 1986. In his five-plus years, Bush has already issued over 750 challenges, an astonishing number, and is the first president since Thomas Jefferson to have stayed in office this long without issuing a veto. "What we haven't seen until this administration is the sheer number of objections that are being raised on every bill passed through the White House," says Kelley. "That is what is staggering. The numbers are well out of the norm from any previous administration."
- There are examples to back the assertions by Bush defenders that the signing statements are little more than political chest-thumping by his lawyers who are determined to defend Bush's prerogatives. For example, citing his power to "withhold information" in September 2002, Bush declared that he could ignore a law requiring the State Department to list the number of overseas deaths of US citizens in foreign countries. Nevertheless, the department has still put the list on its website. But the examples are few and of little impact.
- Harvard law professor Jack Goldsmith, who until 2005 oversaw the Justice Department's Office of Legal Counsel for the administration, says the statements do not change the law; they just let people know how the president is interpreting it. "Nobody reads them," says Goldsmith. "They have no significance. Nothing in the world changes by the publication of a signing statement. The statements merely serve as public notice about how the administration is interpreting the law. Criticism of this practice is surprising, since the usual complaint is that the administration is too secretive in its legal interpretations." Goldsmith's sugary objections are ingenuous and misleading. Cooper points out that the signing statements are indeed being closely read -- and followed -- by the bureaucrats who actually implement new laws. Lower-level officials will follow the president's instructions even when his understanding of a law conflicts with the clear intent of Congress, crafting policies that may endure long after Bush leaves office, he says. "Years down the road, people will not understand why the policy doesn't look like the legislation," he says. And in many cases, critics contend, there is no way to know whether the administration is violating laws or merely preserving the "right" to do so. Many of the laws Bush has challenged involve national security, where it is almost impossible to verify what the government is doing. Since the disclosure of Bush's domestic spying program, many people have expressed alarm about his sweeping claims of the authority to violate laws.
- Republicans and Democrats alike in Congress have objected, to varying degrees, of Bush's attempts to categorically and unilaterally usurp power through his use of signing statements. Commenting on Bush's unwillingness to obey the ban on torture, GOP senator Lindsey Graham said, "I do not believe that any political figure in the country has the ability to set aside any...law of armed conflict that we have adopted or treaties that we have ratified." Of Bush's attempt to ignore the oversight provisions of the Patriot Act, Democratic senator Patrick Leahy accused Bush of trying to "cherry-pick the laws he decides he wants to follow." House Democrats Jane Harman and John Conyers wrote a letter to Attorney General Alberto Gonzales demanding that Bush rescind his claim and abide by the law, saying in part, "Many members who supported the final law did so based upon the guarantee of additional reporting and oversight. The administration cannot, after the fact, unilaterally repeal provisions of the law implementing such oversight.... Once the president signs a bill, he and all of us are bound by it."
- Legal experts fear that the only check on Bush's claims to near-absolute power is the political fallout he may -- or may not -- have to endure. The courts have little chance of reviewing Bush's assertions, especially in the secret realm of national security matters. "There can't be judicial review if nobody knows about it," warns law professor and former Justice Department official Neil Kinkopf. "And if they avoid judicial review, they avoid having their constitutional theories rebuked." Without court involvement, only Congress can check a president who goes too far. But Bush's fellow Republicans control both chambers, and they have shown limited interest in launching the kind of oversight that could damage their party. "The president is daring Congress to act against his positions, and they're not taking action because they don't want to appear to be too critical of the president, given that their own fortunes are tied to his because they are all Republicans," says law professor Jack Beermann. "Oversight gets much reduced in a situation where the president and Congress are controlled by the same party." Golove says, "Bush has essentially said that 'We're the executive branch and we're going to carry this law out as we please, and if Congress wants to impeach us, go ahead and try it.'" Former Reagan-era deputy attorney general Bruce Fein says that the American system of government relies upon the leaders of each branch "to exercise some self-restraint." But Bush has declared himself the sole judge of his own powers, he says, and then ruled for himself every time. "This is an attempt by the president to have the final word on his own constitutional powers, which eliminates the checks and balances that keep the country a democracy," Fein says. "There is no way for an independent judiciary to check his assertions of power, and Congress isn't doing it, either. So this is moving us toward an unlimited executive power." (Boston Globe)