Wednesday, March 25, 2009

Two Steps Toward Monarchy

One Step Forward, Two Steps Toward Monarchy
By David Swanson

It has become almost commonplace, since the release last week of seven
"legal" opinions written in 2001 and 2002 by the Justice Department, to
remark that unbeknownst to us we came within an inch of dictatorship.
And with President Obama announcing an end to torture and a new policy
on signing statements, it is extremely common to speak as if we are
moving quickly and deliberately in the opposite direction. But this
picture is far too simplistic.

We knew a great deal about what was happening when Bush and Cheney were
president. In fact, the reason we find the latest handful of memos so
"shocking" is that we are already familiar with many of the actual
crimes and abuses they were used to justify. While the transfer of
unconstitutional powers to the president began when George Washington
held that office and has advanced over the centuries, it did take a
dramatic leap forward during the reign of Bush-Cheney. We were indeed
within a foot, if not an inch, of outright dictatorship, but we were
well aware of it. Many chose to avert their gaze for a variety of
reasons. Chief among them were approval of presidential power, loyalty
to Republicans, and loyalty to Democrats who chose not to rock the boat.

The picture is also too simplistic because there is far more smoke than
fire in President Obama's retreat from imperial power, and there is a
fundamental defect in our assumption that limiting presidential power
can and should be done by a president, rather than by Congress, courts,
and the American people. Obama has announced policy changes, some of
them very much for the better, but to choose a policy of not torturing,
or a policy of not altering laws with signing statements unless
absolutely necessary, is to make choices in areas we previously supposed
to allow no room for choice at all. In other areas, including the
launching of missiles into foreign nations, rendition, unlawful
detention, outrageous claims of "state secrets" and "executive
privilege", claiming the right to deny courts access to any classified
information, the continuation and even escalation of aggressive wars,
the refusal to prosecute known crimes of the previous administration,
and the creation of gargantuan powers to spend and lend without
accountability for the purposes of bailing out bankers, stimulating the
economy, and potentially even providing healthcare in a manner
acceptable to health insurance companies, Obama has not only made policy
choices but made the wrong ones, made the ones that the Constitution
does not allow him.

It strikes me as very unlikely that Obama and Biden will abuse their
offices to an extent equal to Bush and Cheney. But it is equally
unlikely that the presidency in 2013 will possess only the powers it
possessed in 2000, if we leave the job of restricting those powers to
the president. Most of us are pleased that Obama has just legalized
stem-cell research. Others of us are furious. But we should all be
terrified of the state of affairs in which a single person can make such
fundamental decisions. The problem is not just that the next president
can reverse such decisions, but also that he or she can make decisions
completely contrary to the will of the majority of Americans or the
rights of individuals. If Obama can choose to stop torturing, but not
prosecute any of the torturers, a number of horrible consequences
follow. First, the torturers have nothing to fear and torture continues
even within a government opposed to it. Second, the levels of secrecy
permitted the president allow no one to be sure how much torture is
happening. Third, we stand in violation of our laws and international
treaties, encouraging lawlessness around the world, allowing the foreign
minister of Algeria when accused of human rights abuses by our State
Department last month to reply, in effect, "Look who's talking!" Fourth,
no matter how much truth we get or how reconciled we become, there is
nothing to deter the next president from secretly or openly establishing
a policy of torture, and nothing to stop any president from violating
any other law. Fifth, we no longer elect executives to execute the will
of Congress, but elected despots, kings for four years.

History shows that powers claimed by one president are almost always
claimed by future ones, even if not abused to the same extent by the
immediate successor. A statement from a president, no matter how good
and righteous, is not the way to end a pattern of unconstitutional
statements from presidents. Congress should pass a bill banning the use
of signing statements to alter laws. Of course, this bill could be
signing-statemented or ignored, but it wouldn't be if the threat of
impeachment were reestablished. One way of doing that would be by
impeaching Bush and Cheney despite their being out of office, an action
for which there is precedent. Another step in the right direction would
be to impeach Jay Bybee, former torture memo author, now appellate court

We could also consider a Constitutional amendment, but there is good
reason to be reluctant about proceeding with that. No reasonable
interpreter of the current Constitution could ever have imagined that
the president had the right to rewrite laws with signing statements. If
we amend the Constitution to clarify that point, we could be seen as
suggesting that any bizarre outrage against the basic principles of a
government of laws is permissible until explicitly forbidden in detail
by Constitutional amendment. And the Constitution already includes the
power of impeachment. If, however, we ever significantly revise the
Constitution in convention, banning signing statements should be a part
of that revision.

As a candidate for the presidency, Obama committed to not using signing
statements to reverse laws. In a questionnaire published by the Boston
Globe on December 20, 2007, Obama said:

"Signing statements have been used by presidents of both parties,
dating back to Andrew Jackson. While it is legitimate for a president to
issue a signing statement to clarify his understanding of ambiguous
provisions of statutes and to explain his view of how he intends to
faithfully execute the law, it is a clear abuse of power to use such
statements as a license to evade laws that the president does not like
or as an end-run around provisions designed to foster accountability. I
will not use signing statements to nullify or undermine congressional
instructions as enacted into law. The fact that President Bush has
issued signing statements to challenge over 1100 laws -- more than any
president in history -- is a clear abuse of this prerogative."

On February 17, 2009, President Obama published his first signing
statement in the Federal Register, commenting on H.R. 1, the "American
Recovery and Reinvestment Act of 2009." He wrote the statement in plain
English and did not declare the right to violate the law. His statement
appears to be exactly what Bush's lawyers claimed his were, a press
release. But, unlike Bush, Obama did not post his first signing
statement on his website, and -- as far as I know -- he didn't send it
to any press. So what was the point? One point may have been to simply
establish that there would still be signing statements. Another may have
been to make part of the formal law these seemingly innocuous and
admirable phrases:

"My Administration will initiate new, far-reaching measures to help
ensure that every dollar spent in this historic legislation is spent
wisely and for its intended purpose. The Federal Government will be held
to new standards of transparency and accountability. The legislation
includes no earmarks. An oversight board will be charged with monitoring
our progress as part of an unprecedented effort to root out waste and
inefficiency. This board will be advised by experts---not just
Government experts, not just politicians, but also citizens with years
of expertise in management, economics, and accounting."

While nothing is said here that Obama did not also say publicly, he has
hereby (if we allow this interpretation of signing statements to stand)
made part of the law his right to use the hundreds of billions of
dollars appropriated in this bill in "new" and "far-reaching" ways that
he "initiates," as well as the understanding that an "oversight board"
created by the executive branch will -- rather than Congress -- oversee
the activities of the executive branch, or as Obama calls it "the
Federal Government."

On March 9, 2009, Obama published a memo on the topic of signing
statements in which he defended the practice but promised not to abuse
it. The memo read, in part:

"executive branch departments and agencies are directed to seek the
advice of the Attorney General before relying on signing statements
issued prior to the date of this memorandum as the basis for
disregarding, or otherwise refusing to comply with, any provision of a

suggesting that Bush's signing statements permitting the violation of
laws would be reviewed on a case-by-case basis as needed. There was no
indication of how the public would learn of such reviews. But, of
course, unless we learn of such reviews we will have yet another form of
secret law, and even if we do learn of such reviews, we will have
legislating done by the executive branch.

Some commentators have exclaimed that by so reviewing Bush's signing
statements, Obama has finally agreed to "look backwards." I disagree.
Obama's "look only forward" idea is all about undoing bad policies and
creating new ones. What it is not about is holding anyone accountable
for their crimes.

As president-elect, in November, Obama said that he was preparing a list
of about 200 executive orders issued by Bush that he, Obama, would
simply reverse. I haven't seen that list yet, and this latest memo
regarding signing statements suggests that they will not be included.
The most Constitutional move that President Obama could make would be to
toss out every signing statement that authorized violating laws and
every executive order, memo, determination, finding, directive,
proclamation, or other royal decree that his predecessor did not have
the Constitutional right to issue. Instead, Obama has reversed a handful
of Bush's orders because of "policy differences." Some of these are
wonderful and lifesaving reversals, such as that regarding torture. But
they involve a life-threatening maintenance of dangerous monarchical
power. Congress should give the president explicit and limited
rule-making powers. All rules should be publicly available. And Congress
should be understood to have the power to overrule them. Outside of
those restrictions, a president should not be permitted to make decrees
carrying the force of law.

In the same pre-election questionnaire quoted above, Obama made an
encouraging comment regarding secrecy:

"I believe the Administration's use of executive authority to
over-classify information is a bad idea. We need to restore the balance
between the necessarily secret and the necessity of openness in our
democracy--which is why I have called for a National Declassification

But Obama has, at least thus far, chosen to release only a small
fraction of the Bush-Cheney crime documents known to exist. We have not
seen most of the memos and not seen the Emails. Eric Holder's Justice
Department has opposed releasing the Emails and urged a federal appeals
court to dismiss a lawsuit against Boeing subsidiary Jeppesen DataPlan
for its role in the extraordinary rendition program. Mohamed et al. v.
Jeppesen had been brought on behalf of five men who were kidnapped and
secretly transferred to U.S.-run prisons or foreign intelligence
agencies overseas where they were tortured. The Bush administration had
asserted the "state secrets" privilege, claiming the case would somehow
undermine national security, and Holder's department agrees.

Holder's Justice Department has also used a "state secrets" claim to try
to block a lawsuit over Bush's warrantless spying, and claimed in a
brief filed in that case that only a president can decide on the use of
any classified information in court (even in a closed court), a power
that would allow presidents to give themselves immunity by simply
classifying evidence of their crimes.

Britain's High Court of Justice ruled that evidence in the U.K. civil
case of Binyam Mohamed, one of the plaintiffs in the Jeppesen case, had
to remain secret because of U.S. threats to cut off intelligence
sharing. Britain's Telegraph newspaper reported that "Mohamed's genitals
were sliced with a scalpel and other torture methods so extreme that
waterboarding, the controversial technique of simulated drowning, 'is
very far down the list of things they did'." Britain's Daily Mail
reported that Mohamed "was identified as a terrorist after confessing he
had visited a 'joke' website on how to build a nuclear weapon. ... [He]
admitted to having read the 'instructions' after allegedly being beaten,
hung up by his wrists for a week and having a gun held to his head in a
Pakistani jail."

In a remarkable show of their continuing desire for Congress to exist as
a functioning part of our government, and willingness to challenge a
president of the same political party, leading Democrats in the House
and Senate have introduced the State Secrets Protection Act, which would
require court review of any "state secrets" claims. Senator Russ
Feingold (D., Wisc.) also requested a classified briefing to have this
particular "state secrets" claim explained to him. Of course, if he's
given an explanation he'll be forbidden from sharing it with us. And, of
course, Congress does not propose Congressional review, only court
review, of "state secrets" claims.

However, in what I consider a remarkable rush to give presidents more
power, Feingold joined with Republican Senators John McCain and Paul
Ryan last week to reintroduce legislation that would effectively give
presidents an unconstitutional line-item veto for spending bills.
Unwilling to ban or simply stop including wasteful earmarks, senators
and Congress members would like to give presidents the power to undo
congressional decisions. Rather than rejecting an item with a signing
statement, a president could legally "rescind" it, requiring both houses
to vote again on that item alone. The same result could be achieved by
requiring each house to vote on such items individually to begin with,
but that wouldn't transfer power to the president and therefore doesn't
look to Washington insiders like as much of a reform.

Barack Obama as a candidate for the presidency had advocated for
Congressional "approval" of the treaty President Bush made with Iraq. As
President-Elect, Obama favored Congressional "review." As President he
went silent. President Obama immediately upon taking office began
launching military strikes into Pakistan and has now escalated the
occupation of Afghanistan, without anyone even suggesting that Congress
be consulted in these matters. President Obama and his top officials, in
their first weeks in office, supported claims of "executive privilege"
allowing members of the former Bush administration to refuse to comply
with Congressional subpoenas, and explicitly doing so in order to
protect the "power of the presidency." Obama's lawyer conducted a
negotiation of terms between the first branch of our government and a
common criminal, Karl Rove, rather than hauling Rove in by force,
something that Congress itself of course refuses to do as well. The
result will be Rove testifying, at least in private and at least on some
topics, but also the maintenance of the idea that the president can
choose whether or not to allow Congress to subpoena witnesses.

I hate to sound ungrateful here. I'm delighted that Obama released seven
more memos. I'm aware that those memos exhibit a reckless, lawless
lunacy that outstrips anything previously seen in this country or likely
to be seen in the next four years. But the powers claimed by those memos
do not go away just because some other memos are written and the powers
are not used. The powers go away only if something is done to deter
their reappearance. One option, which really ought not to be an option,
would be for the Justice Department to enforce the law.


David Swanson is the author of the upcoming book "Daybreak: Undoing the
Imperial Presidency and Forming a More Perfect Union" by Seven Stories
Press and of the introduction to "The 35 Articles of Impeachment and the
Case for Prosecuting George W. Bush" published by Feral House and
available at Swanson holds a master's degree in philosophy
from the University of Virginia. He has worked as a newspaper reporter
and as a communications director, with jobs including press secretary
for Dennis Kucinich's 2004 presidential campaign, media coordinator for
the International Labor Communications Association, and three years as
communications coordinator for ACORN, the Association of Community
Organizations for Reform Now. Swanson is Co-Founder of, creator of and Washington
Director of, a board member of Progressive Democrats of
America, the Backbone Campaign, and Voters for Peace, a convenor of the
legislative working group of United for Peace and Justice, and chair of
the accountability and prosecution working group of United for Peace and


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