Sigh-ing Statements

I'm as concerned about executive overreach as the next guy, but I'm just not getting the outrage over President Obama's latest signing statement. To begin with, am I the only one who remembers that there is no such thing as a Presidential "Czar?" This is a shorthand developed by media and bloggers to mean presidential advisor. As Atrios often says, no one can follow everything and no one man can be an expert in everything. Yet a President is responsible for all policy outcomes. Are people seriously arguing he, (or someday she), shouldn't be allowed to choose expert advisors to help them make decisions? Criticizing the choice of advisors is one thing, suggesting they shouldn't be allowed to have them strikes me as unrealistic.

I'm posting about this because John Cole bought into the outrage, calling a clear Obama flip flop. He's riffing off Jake Tapper, who apparently is a mission lately to make Obama out to be a total hypocrite, with selective quotes. I was surprised Cole bought into it without recalling the context himself, which to be fair, Jake supplied via embedded links, and added to, in this later post. Maybe John Cole didn't read the entire quote from that interview:

4. Under what circumstances, if any, would you sign a bill into law but also issue a signing statement reserving a constitutional right to bypass the law?

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 problem with this administration is that it has attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation. 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. No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that.

So in fact, Obama did not say he would never use signing statements. Moreover, as the link Jake later supplies show, signing statements date back to the early 19th century, though it was "President Reagan [who] initiated this practice in earnest." Reagan issued 250, with 86 of them raising constitutional challenges. The ratios of the following presidents were, George H. W. Bush 228/107, Clinton 381/70 and George W. Bush 152/118. But note: "The significant rise in the proportion of constitutional objections made by President Bush is compounded by the fact that these statements are typified by multiple objections, resulting in more than 1,000 challenges to distinct provisions of law." This is what Obama was talking about in 2007. Context matters.

Addtionally, the cited study notes that signing statements on their face, are not unconstitutional. It's the grounds cited for their use and the effects of their application that matter. In fact, they seem to be a necessary tool to protect a president from Congressional fiats issued for reasons of political pandering and/or pure spite, which both would seem to apply to the present case with Obama.

None of this is to say the process doesn't require oversight, both Congressional and by citizens, since as made obvious by Bush, the process can be abused and needs to be countered when it is. However, it seems to me, this is not the hill on which to fight that battle. If we're going to bash Obama, let's do it for reasons that really matter and not inure the unengaged public to the actual dangers with little issues of small import. [graphic credit]

Liars and bankers and spooks, oh my!

Some short takes on the morning buzz.

Shorter Santelli: I am not a paid shill for the far right smear machine. Honest.

Felix Salmon: "Rather, the scandal is that AIG could have earned billions of dollars by selling insurance against a meltdown, even as it was wholly incapable of paying out on those policies."

Under coverup: "The CIA got rid of 92 videotapes depicting the harsh interrogations and confinement of "high value" al-Qaeda suspects, government lawyers disclosed yesterday, as a long-running criminal probe of the tapes' destruction inched toward a conclusion that is not expected to result in charges against CIA operations employees, three sources said."

War powers: "The secret legal opinions issued by Bush administration lawyers after the Sept. 11 attacks included assertions that the president could use the nation’s military within the United States to combat terrorism suspects and to conduct raids without obtaining search warrants."

Sadly, I think the culprits will never be held accountable for their crimes.

[More posts daily at The Detroit News]

Harry Reid honors another Republican hold

By Libby

This story seems to have slipped through the cracks. Last April the House cleared a bill that would restore President Reagan's former executive order requiring most presidential records to be released 12 years after a president left office. The companion bill has been languishing ever since in the Senate, due to a hold by a Republican Senator. It looked the Senate would finally address the issue last week but it snagged again when it hit the floor.

Sen. Jim Bunning, R-Ky., recently lifted his hold on legislation that would overturn President Bush’s 2001 executive order giving presidents and former presidents the authority to indefinitely halt the release of their White House records.

But just as supporters sought a floor vote, the bill was derailed for a second time by another senator placing a hold, Democratic senate aides said.

Only this time, no one is sure who has invoked the parlimentary maneuver to stall the bill.

Laughably, Joe Lieberman has vowed to smoke the secret Senator out. Why should he have to?

One can't fail to remember Harry Reid had no trouble ignoring Dodd's hold on the FISA bill. Reid has already broken the tradition of honor on these holds, so I see no reason that he couldn't have brought the bill forward anyway. Surely, Mr. Reid believes the American people have a ownership interest in the records and as taxpayers should be able to access them within a reasonable interval of time.

Kucinich seeks to impeach Cheney

By Libby

I love his spirit on this move but I wish his timing was better.

Congressman Dennis Kucinich (D-OH) announced today that he will be offering a privileged resolution on the House floor next week that will bring articles of impeachment against the Vice President, Richard B. Cheney.

“The momentum is building for impeachment,” Kucinich said. “Millions of citizens across the nation are demanding Congress rein in the Vice President’s abuse of power.

Everything he says is true and I suppose he had to wait until he had a decent amount of co-sponsors to bring it forward, but it feels a little like too little, too late. It would have been much more impressive a couple of months ago. It would have actually helped a couple of years ago. As it stands, although I'm sure he's acting on principle, it smacks a bit of opportunism in order to get some badly needed attention for his campaign.

And let's face it. It's largely symbolic at this point. It will never pass and will only result in a public smackdown by his fellow Dems and bolster Cheney's image as being untouchable. However, if it throws even a pebble to trip up Cheney on his relentless march to bombing Iran, it will worth it -- I guess.

Capt Ed jumps back on Bush's sinking ship

By Libby
Updated below

Well this is it. I'm formally delinking Capt Ed -- again. The first time was in 04 after he reported on his starry eyed awe at being given a tour of the White House basement by Karl Rove. Oh he and the 101st were riding high on themselves in those glory days when they ambushed Dan Rather and managed the torpedo the debate on Bush's lies about his service record by focusing the discussion on typing fonts. Ed provided some of the White House's best hackery.

I reinstated him to the roll, in the last year or so, when he seemed to come to his senses and started offering more reasoned arguments again. I figured anybody could be seduced by power and he had perhaps seen the light. Now it appears, he was just waiting to worm his way back into the administration's good graces. He organized a blogger conference call with an anonymous White House source, who gave an anonymous group of bloggers the official White House talking points on unitary executive privilege, which he fully intends to pitch. He's quite pleased with his newly restored importance.

He knows it's wrong. He's pretty defensive about it and his cute little update doesn't really absolve him. Leahy was talking about ordinary assertions of privilege, not an all encompassing, unbreachable privilege that allows absolutely no oversight for wrongdoing. Once again Ed is willing to sell out the national interest for an invitation to the basement at 1600 Penn Ave.

That's his right, but I can't in good conscience send readers to a propaganda mill so he's off the roll. I doubt I'll bother to read him again myself. If I want White House talking points, I'll just go to Tony Snow. No offense to Ed, but Tony is much better looking.

Meanwhile, speaking of White House propaganda, this would be funny if it wasn't so deadly serious.

The White House offered a vigorous defense of Attorney General Alberto R. Gonzales today, insisting that he had not given misleading testimony to Congress, but that national security factors prevented further clarification for now.

In other words, he didn't lie but we can't tell you what exact illegal surveillance program he was really talking about because it's a secret covered by executive privilege. This is the kind of double-speak you're intending to defend Capt. Ed. It's really too sad.

Update: I was pretty tired by the time I got to this last night and couldn't really fully articulate my disgust. In the interim, John Cole weighed in and summed it up perfectly.

Before the stupid gets too far out of hand, let us note one thing. There is a substantive difference between bloggers working with parties in regards to advocacy and pursuing electoral issues, and an administration issuing talking points to bloggers to assist in blocking investigations into alleged criminal wrongdoings.

Do you have a problem with President Hillary Clinton, in the spring of 2010, calling bloggers and issuing talking points to subvert the investigations by a Republican Congress into alleged misdeeds and lies by her Attorney General, Pat Leahy? Of course you would.

Granted, that is a far-out fictional hypothetical, since there is no chance in hell Republicans will control Congress again for the next ten years, but you get the point.

Read the whole post and all the comments. Cole really is on fire this week.

Dems talk tough on subpoenas

By Libby

Having been disappointed by the Democrats' failure to live up to their tough talking rhetoric one too many times, I'm not keen to take too much encouragement from their latest salvo fired at the White House over the White House refusal to comply with Congressional subpoenas but one lives in hope that this time they'll follow through.

The chairmen of the House and Senate Judiciary committees yesterday ratcheted up their fight with President Bush over documents on the firing of U.S. attorneys, sending the White House a barbed letter demanding that the president back down from a claim of executive privilege -- or give Congress a detailed explanation for withholding each document.

The committee chairmen told the White House to provide a signed letter from Bush asserting executive privilege, as well as a description of each withheld document, a list of who has seen the documents, and the legal basis for arguing that they may be shielded from public view.

That sounds pretty heartening to those of us who have been pleading with the Dems to use the power we gave them in 06 to its utmost advantage but there's always that qualifying disclaimer that plants the seeds of the doubt.

Neither Leahy nor Conyers, whose panels are leading the investigation into the Justice Department and the firings, have said how far they intend to pursue the matter legally. Their letter says they "will appropriately enforce our subpoenas backed by the full force of the law."

Well, the full force of the law allows them to ultimately "find the president in criminal contempt and to refer the matter to a federal prosecutor with a recommendation to issue an indictment." This is exactly what needs to happen but the question remains whether the Dems can find the courage to stand up against the GOP's inevitable bleating about partisan witch-hunting and proclamations of political doom and get the job done.

So far, the answer has never been yes and considering the party's recent rhetoric on impeachment, I'm not holding my breath waiting for them to follow through here either. I'll believe when I see it.

[cross-posted to The Reaction]

Like any fungus, Cheney prefers teh dark

By Libby
Updated below

In the world according to Dick Cheney, the rule of law stops just outside his door. Now back in the days when Veeps did little but attend state funerals and kiss babies at fundraisers while the president was busy governing this wouldn't have been as great a matter of concern. However, as investigations reveal Cheney as a chief architect of all of our Clueless Leader's disastrous policies of imperialism and remains a prime instigator for permanent mayhem in the Middle East, to the point where he is apparently coniviving behind the scenes to force Bush into an insane military confrontation with Iran, his shameless pissing on the constitution cannot safely be ignored.

His latest dodge of oversight underscores the danger.

Since 2003, the vice president's staff has not cooperated with an office at the National Archives and Records Administration charged with making sure the executive branch protects classified information. Cheney aides have not filed reports on their possession of classified data and at one point blocked an inspection of their office. After the Archives office pressed the matter, the documents say, Cheney's staff this year proposed eliminating it.

According to the twisted logic of Dick's il-legal team, the VP is not accountable to anyone. Not to the people, not to the Congress, not the judiciary and not even to the unitary executive. Their argument seems to be that since the office belongs to everyone, it really belongs to noone but the person holding the office.

But this is just his latest assault on the people. How much does Cheney hate us? Let us count the ways. Jesse Lee at the Gavel provides a link to oversight committee's letter to teh big Dick and kindly provides the list of pertinent bullet points for the pdf adverse.

He doesn't want us to know how he handles classified information.

We're not allowed to find out who advises him on policy planning.

He doesn't want to tell who pays for his secret jaunts.

Who works for him in an official government capacity is none of our business. Nevermind that we pay their salaries.

Who he meets with on official business is too much to ask.

And thanks to an order signed by Bush, providing a sort of pre-emptive pardon for his criminality, he can carry his black secrets to the grave. He never has to tell us a bloody thing.

Meanwhile, the LAT connects the dots on the timing of when Cheney decided not to co-operate with a long-standing policy.

According to documents released Thursday by a House committee, Cheney's staff has blocked efforts by the National Archives' Information Security Oversight Office to enforce a key component of the presidential order: a mandatory on-site inspection of the vice president's office. At least one of those inspections would have come at a particularly delicate time — when Cheney's former chief of staff, I. Lewis "Scooter" Libby, and other aides were under criminal investigation for their suspected roles in leaking the identity of CIA operative Valerie Plame.

That's a key point. He fully co-operated for the first two years of the Bush reign, but once he figured out how to co-opt the system to his own benefit, he's started singing, "Ain't Nobody's Business If I Do." It also explains a lot about why he's so keen on maintaining a state of permanent chaos in the Middle East. As long as he can keep the "necessity" of secrecy in a time of war fiction alive, he can protect his prodigious butt and he clearly doesn't care how many have to die for his lies in order to keep his sorry ass out of the slammer.

Another good reason to get out Iraq now I'd say. The toxic mold of the neo-cons' grand plans thrives under the fog of war. Exposing them to the broad sunlight of peaceful co-existence might destroy the slime that destroyed our former tranquility, once and for all.

Update:Steve Benen catches the White House presser and finds Bush is unwilling to claim Dick as part of the executive branch. The White House finds this an "interesting" constitutional question and open to debate. Spokesmouth Perino thinks Waxman is a bad boy for making a fuss over it.

As Steve so adroitly puts it, "So, the problem here is that Waxman believes the Bush administration should enforce its own rules?"

Think Progress catches another choice clip from the presser.

[Perino] repeatedly said that Cheney exempt from a mere “small portion” or “small section” of the executive order, and that President Bush never intended for the executive order to apply to Cheney any differently than it applies to the president’s own office.

Perino later contradicted herself: first, she stated definitively that Cheney’s office is “complying with all the rules and regulations regarding the handling of classified material.” But when questioned how she could be sure, Perino said it was a “good question” and admitted she isn’t “positive” that his office is in compliance.

The White House thinks the VP holding himself above the law is "a little bit of a non-issue." I guess that's no so surprising considering the Bush administration built it's unitary power based on ignoring any and every "small section" of the laws they find incovenient.

The only remaining question here really is, how many little sections of the law do they get to ignore before they're held to account? We don't need to impeach these bums. We need to indict them before they do any more damage.

Showdown on signing statements

By Libby

This is long overdue. Pelosi promises legal action if Bush attempts to circumvent the will of the people by signing a military funding bill that includes provisions he doesn't like by secretly adding one of his devious signing statements after everybody leaves the room.

It's not clear to me how it would work legally. I'm not at all certain that a court would grant standing on such an action but then again I'm not a legal expert. Perhaps it would survive a legal challenge but even if it doesn't, with over 750 of these odious statements already on the record, any challenge to Bush's ongoing declarations of being above of the law will be a welcome change to rubberstamping our Commander Guy's delusions of dictatorial power.

On the trail of email

The White House is still claiming the loss of four years worth of Rove's emails was inadvertent and say they have their forensic team working on it. Frankly I don't see why we should trust their forensics team any more than we should trust them, which is not at all. Meanwhile, the oversight committees are trying to get the White House to produce the existing RNC emails along with other White House documents and continue to seek sworn testimony from Rove and other high ranking officials.

White House counsel, Fred Fielding sent his answer in a letter. Short version: Go fuck yourselves. It appears the White House intends to evoke executive privilege on even the emails held by the ostensibly outside agent, the RNC. Mark Kleiman has the answer to that.

So it seems to me that Fielding is bluffing, and that Waxman, Leahy, Schumer, Conyers, and Martinez should stand pat and call. No more negotiations. Testimony now, documents now, or issue and enforce those subpoenas.

As an extra-special bonus, the order for the Sergeants-at-Arms to make arrests or seize documents needs to be voted by the full chamber. I don't know whether the Senate rules allow that motion to be filibustered. But that means that all of the Republicans on the Hill would have to put themselves on record as supporting the cover-up or opposing it. Voting "Yes" would seriously threaten any Republican's standing within the party, and put him or her at risk of wing-nut primary challenges. Voting "No," for a Senator or Representative from a competitive state or district, might well mean defeat a year from November. Now there's a "wedge issue," if you like.

Kleiman agrees that even the servers can legally be seized. I've been calling for Leahy to get a move on for days now, but he doesn't listen to me. Maybe he'll listen to Kleiman.

The attorney purge and unitary executive theory

I know this blog is in danger of becoming all purge, all the time but former Nixon counsel John Dean has a must read piece at Findlaw that explains why this scandal is important beyond the ordinary political machinations.

In truth, much more is at stake here for both the Congress and the White House than this bare description of the conflict would indicate. These issues strike at the heart of what post-Watergate conservative Republicans seek to create: an all-powerful presidency. Thus, for the same reason that Vice President Cheney went to extreme lengths to block Congress from getting information about the work of his National Energy Task Force, as I discussed in prior columns such as this one, I expect President Bush to take what will appear to be a similar irrational posture. For both Bush and Cheney, virtually any limit on presidential power is too great.

Dean outlines the history of the unitary executive theory, how it's come to form the lynchpin of the neo-conservative mindset and how they sold it based on invented history. It's longish but really succinct and I think his conclusion is right on target.

This time, it is my belief that Bush -- unlike Reagan before him -- will not blink. He will not let Fielding strike a deal, as Fielding did for Reagan. Rather, Bush feels that he has his manhood on the line. He knows what his conservative constituency wants: a strong president who protects his prerogatives. He believes in the unitary executive theory of protecting those prerogatives, and of strengthening the presidency by defying Congress.

In short, all those who have wanted to see Karl Rove in jail may get their wish, for he will not cave in, either -- and may well be prosecuted for contempt, as Gorsuch was not. Bush's greatest problem here, however, is Harriett Miers. It is dubious he can exert any privilege over a former White House Counsel; I doubt she is ready to go to prison for him; and all who know her say if she is under oath, she will not lie. That could be a problem.

I'm not much for schadenfreude but I'll admit I would love to see Rove finally pay some price for a lifetime of lies.