Un-Signing The Signing Statements

Good:

The House rebuked President Obama for trying to ignore restrictions to international aid payments, voting overwhelmingly for an amendment forcing the administration to abide by its constraints.

House members approved an amendment by a 429-2 vote to have the Obama administration pressure the World Bank to strengthen labor and environmental standards and require a Treasury Department report on World Bank and International Monetary Fund (IMF) activities. The amendment to a 2010 funding bill for the State Department and foreign operations was proposed by Rep. Kay Granger (R-Texas), but it received broad bipartisan support.

The conditions on World Bank and IMF funding were part of the $106 billion war supplemental bill that was passed last month. Obama, in a statement made as he signed the bill, said that he would ignore the conditions.

They would "interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with international organizations and foreign governments, or by requiring consultation with the Congress prior to such negotiations or discussions," Obama said in the signing statement [...]

President George W. Bush had used signing statements to ignore a number of provisions in bills that he signed into law, frustrating Democrats in Congress. One Bush signing statement allowed the administration to ignore a provision banning the torture of terror detainees in situations threatening the nation's security.

Frank and Rep. Mark Kirk (R-Texas) said that one way they could get presidents to stop issuing signing statements casting aside laws would be to refuse to fund their priorities. The amendment passed Thursday seeks to nullify Obama's signing statement by withholding funds from any agreement involving the Treasury Department that doesn't follow the conditions set out in the supplemental bill.

"The signal we send to the Treasury is very clear: Ignore statute at your peril," Kirk said.

As long as the executive is given a power, he or she will probably keep using it. It's up to the legislative branch to assert their authority. Of course this never happened with a Republican in the White House, as the GOP sees their role in those situations as human shields. But I really don't care about partisanship when it comes to reining in the runaway executive and restoring balance to the branches of government. Congress has a lot more power than they've been using over the years, and while this is a small point, I'm happy if it leads to signing statements going the way of the dodo bird.

...I was hinting at this, but David Waldman fleshes it out:

Pretty much as predicted, Congressional Democrats find their spine in standing up to expansive executive power as soon as there's a Democrat in the White House. Actually confronting a Republican president about it was apparently too politically difficult for them to contemplate. Why? Because Republicans would have voted against it, meaning that standing up for institutional prerogatives and the separation of powers is a politicized issue. It's "partisan bickering" when Democrats say this about Republican presidents, but "bipartisan agreement" when they say it about Democrats, because it's only when it's said about Democrats that Republicans agree that there ought to be a separation of powers.

Which of course means that such a separation only has a hope of existing as the founders intended when there's a Democrat in the White House. Which hasn't been all that often since the advent of the Nixonian "Imperial Presidency," mind you.

Closing Guantanamo

Yesterday's leak that the incoming Obama Administration is seriously drawing plans to close the prison at Guantanamo Bay, Cuba is very welcome news. But it's not uniformly welcome.

There are, of course, problems here. The AP's reporting suggests Obama is considering a "hybrid process" between the military commissions and the full process enjoyed by U.S. citizens. If there's anything the military commissions process should have taught, it's that reinventing the legal system doesn't work, as evidenced by the bevy of military lawyers who have resigned in protest of the commissions. The concern, stripped of euphemism, is that the evidentiary basis for many trials of Guantanamo detainees -- including, in many cases, torture -- would never be admissible in any court worthy of the name. That's the Bush administration's legacy. But it can't be the basis for cheapening our legal system.

This is a very delicate problem that is not of Obama's making. You have hundreds of detainees, many of them tortured, who would clearly be dismissed in a regular trial because the evidence against them would be inadmissable. And yet even the prisoners who were innocent of any terrorism (and there are many) would hold animus against the United States; I mean, who wouldn't?

Yet Obama is showing the right instincts here. Guantanamo defames out country with every day that it's open. As Anthony Romero of the ACLU says, closing it would be a powerful signal on the change in direction for the country.

Our top issue — closing down Gitmo and shutting down the military commissions — can be done as soon as he lifts his left hand, picks up the new presidential pen and signs an executive order closing Gitmo and ending the military commissions once and for all. Call me naive, but I honestly believe he wants to do it. He promised us that on the campaign trail, and I believe it was more than an empty promise. I believe he knows what he needs to do to restore the America we believe in, to get us on back on track, to give us back our America, an America we never stopped believing in but have sorely missed for the past eight years.

With a stroke of his pen on Day One, a good, courageous president can do that — as long as he listens to himself and to our pleas. As long as he doesn't listen to the centrist and DLC types who tell him, "It's too complicated." "It's tougher than it looks." "Take your time." "We need message discipline — you don't want to do what Clinton did with gays in the military. The nation wasn't ready."

The ACLU took out a full-page ad in the New York Times requesting that Obama close gitmo. And they have a new website, CloseGitmo.com, featuring a video from Brave New Films:



The best thing about what closing Guantanamo would signal is that it would be an action to willingly give up some of the power of the executive. This is highly unusual, as the Congress would typically need to take that power back with the force of law. We are living in a time of an imperial Presidency which grows stronger with every Administration, and we've seen how dangerous that imbalance can be.

The assertion and expansion of presidential power is arguably the defining feature of the Bush years. Come January, the current administration will pass on to its successor a vast infrastructure for electronic surveillance, secret sites for detention and interrogation and a sheaf of legal opinions empowering the executive to do whatever he feels necessary to protect the country. The new administration will also be the beneficiary of Congress’s recent history of complacency, which amounts to a tacit acceptance of the Bush administration’s expansive views of executive authority. For that matter, thanks to the recent economic bailout, Bush’s successor will inherit control over much of the banking industry. “The next president will enter office as the most powerful president who has ever sat in the White House,” Jack Balkin, a constitutional law professor at Yale and an influential legal blogger, told me a few weeks ago.

Whether in a time of war or a time of peace, we need a strong tripartite system that respects civil liberties and restrains the power of each branch. We need lawmakers who have self-interest again. We need a court system that is not a rubber stamp. Closing Guantanamo offers an olive branch from the executive to the other two branches, telling them to fulfill their roles. And hopefully, they'll meet the challenge. Otherwise, we'll continue to rely on the judgment of one man to safeguard the moral authority of a nation. That won't work.

Strike Up The Band, We Got Ourselves a Contempt Proceeding

We'll see how far they get with it, but Patrick Leahy is planning a vote in the Senate Judiciary committee on Thursday for contempt citations, which has been a slightly more anticipated event on Capitol Hill than the Sopranos finale.

Senate Judiciary Chairman Patrick Leahy (D-Vt.) has scheduled a committee vote Thursday on contempt resolutions against White House Chief of Staff Josh Bolten and former presidential political guru Karl Rove for failing to respond to subpoenas.

Under Judiciary Committee rules, the vote could be postponed for a week, but Leahy said he intends to move the criminal contempt resolutions as soon as possible. Last week, he rejected the White House's executive privilege claim in preventing Rove and Bolten from appearing before his panel, calling it "overbroad, unsubstantiated, and not legally valid," setting the stage for Thursday's showdown.

At least one of the top Democrats on the Committee is ready for this fight. The perpetual weak knees of the Democrats whenever anything close to challenging the President comes up is likely still operative, but not for Sheldon Whitehouse:

"There has not been a lot of case law on this subject. We've been going on for a long time off of Department of Justice [attorney general] opinions, and a certain amount of tradition, and how settlements and agreements in the past have shaken out. But the Bush administration has shown why it's actually important that there be a legal line drawn to hold them to, because they've redrawn all the executive lines. I think it'd be good for the process to get a court decision for once and for all on the subject so everybody knows where we stand. It'll eliminate a lot of the back and forth in the future."

It's important for these Senators to understand that this is a historic moment, with the relevance of their offices at stake. If they can't bother to fight for the separation of powers and the ability of the legislative branch to check the executive, what will they ever fight for? Whitehouse, at least, seems to get this, and is willing to push even beyond the current Administration's tenure to get a ruling for posterity.

Whitehouse doubted that the process -- the committee holding the White House in contempt, the full Senate following suit, the subsequent court fight and its resolution -- could be completed before the Bush administration ends. But he said he would see it through to its conclusion regardless of who's president. "It might be, frankly, that with the Bush administration out we'd get a better decision," he said. "We might have an administration that isn't trying to protect anything, and is just interested in the legal question."

It's not that Whitehouse expects that a court ruling on executive privilege will end executive-legislative struggles over its scope. But it would at least set a stable set of boundaries for its legitimate exercise, rather than leaving subsequent administrations free to expand it even further, he said. "The boundary of that debate has been expanded dramatically by the Bush administration, and it's important to get it back to where we're discussing things around some common principles that the court can establish," he said. "It should narrow the disagreement considerably if you've got an established legal framework in which you're having the discussion."

Right now we have a President who thinks that the only legitimate exercise the Congress should be allowed to serve is as an ATM. Today's press conference was not about Iran, it was about bellyaching over Iraq funding. What this contempt proceeding is about, in addition to getting to the truth of the US Attorney scandal, is reasserting the role of the Congress in our form of government. Nothing can be more important.

P.S.: It's amusing to me that Karl Rove is waddling around on his "please buy my book" tour, telling anyone who will listen about internal White House discussions on the 2002 Iraq resolution, and who was driving the debate in Washington, yet when the Congress wants him to answer questions on another Administration matter, suddenly he claims executive privilege. It's essentially privilege as a convenient blanket.

I Did Not See This One Coming

Fred Thompson has almost sane views on executive power:

Thompson agreed that he didn't share the views of Vice President Cheney when it comes to the supremacy of the executive branch.

"No, I think the constitution in times of war, especially, is very definitive about that," he said. "The president is the commander in chief, but the Congress has the power of the budget. The power of the purse. So everything has to go through that prism. So it’s divided power in the constitution. Our founding fathers divided that up. Divided it up at the federal level, the idea being that things like Watergate should be made very difficult to happen. So no one branch of the government can misuse power."

Thompson described checks and balances as "a constant tug and pull. Controversy and differences of opinion over legitimate national security concerns is not a bad thing. Every branch needs to stand up for itself. And I saw that as, in effect, an attorney for the executive branch, and then as a legislator."

Now, there's less than meets the eye here. Later in the interview, he says he agrees with the Bush Administration on "issues of surveillance," which after all was what Watergate was about. Plus, he tries hard to frame Congress' power as solely through the funding mechanism, while saying vaguely that "All the executive authority rests in the president." In Thompson's view, if the Congress disagrees with something the executive does, they can refuse to fund it. Of course, this isn't Congress' only power, they write the laws and have the explicit power to declare war. But Thompson tries to elide that basic Constitutional reading.

What this does show is that, even in the case of a so-called "skeptic" of unitary executive theory, the next President is going to have a big toolbox of new powers and isn't going to be too concerned about giving them away. That holds whether the President is a Republican or a Democrat. And so it's up to the Congress to assert themselves - in ways other than just through funding - to ensure that the balance of power is tilted back toward equilibrium.