Signing statements (and what they mean)

So, the pulitzer- prizes were handed out yesterday. And among the usually careful and timid praise for reporting that actually conveys information, Charlie Savage of the Boston globe was awarded the prize for "national reporting".

The subject of his investigative reporting was the issue on how Bush's signing statements were, contrary to Washington wisdom at the time, actually used to excuse lawbreaking in specifics. Such as when dealing with the issues of torture, domestic spying, approval for going to war, etc. And so establishing that it was not merely a political maneuver to navigate difficult criticism.

Still, it is a curious prize, as the practice of issuing signing statements - in a "ceremonial" fashion, as one described it - had been well documented well ahead of this. I could mention Dan Froomkin, of and the now renamed "White House Watch" column at, who reckognized the significance of this story literally years ahead of the "mainstream". Numerous others also caught on, as it was indeed very few areas of the law Bush eventuall had not in one way or another claimed he had the right to ignore. Eventually ending up with such things as Gordon Meek's (NY Daily News) story on how Bush reserved the right to open mail without court- order earlier this year.

Nevertheless, Savage's reporting in the Boston Globe in 2006 was momentous. In the way that it brought the issue to the headlines, when the general noise- machine ridiculed anyone mentioning the signing statements as conspiracy- freaks, wishing to portray Bush as an evil dictator, operating outside the law as a rule. And only inside the law whenever it would serve him politically, more than breaking it.

Strangely, Howard Kurtz, of all people saw fit to quote Savage's comment after receiving the prize, on that he felt very lonely in the main- stream press when it came to this issue at the beginning.

And thus, publishing the story at the time amounted to a courageous act, by both journalist and paper, as they defied the entrenched Washington Wisdom that Bush could, by definition, do no wrong.

But what exactly is the problem with the signing statements. As has been repeatedly argued, all presidents have used signing statements. And therefore, it is argued, there is nothing special about Bush.

Unfortunately, this ignores the actual content of the signing statements themselves. Many presidents have of course differed on the smaller details of a signed bill, on the implementation of it, etc. However, noone has until now, without it ending in a veto, suggested that they reserve the right to ignore the law, and implement it as they see fit, while still considering the law binding.

Let's take a specific example. Bush signed, after much pompous bloviating, a bill on torture together with sen. McCain, that expressly made the alternative practices connected with the secretive services illegal to use for the general army. The Bush- administration then issued a set of signing statements, claiming that the president would nevertheless excercise his article 2 powers to decide whether certain unnamed provisions of the bill was necessary for the executive branch to follow.

This only hours after the grand signing ceremony of the law that expressly forbade torture. Which, of course, got more coverage in the media than what followed.

In other words, the signing statements signal the executive branch's will in general to dismiss newly signed laws, as well as carry out flatly illegal acts, while still claiming they are lawful.

It's unknown why this administration chose this practice, of course. One theory is that they wanted to immunize themselves against what they see as political persecution from the left. Another is that certain figures in the administration had decided on a specific set of actions they genuinely believe is needed, but knew would never be recieved well by the american people.

But what is certain is that it is built on a principle of governing that has a curious twist on democratic theory. It might be summarized as the following: that in a republic, or a representative democracy - the people vote for their leaders. Those leaders are then trusted with keeping the nation running, and should be allowed to do so without interference from opportunists and criticism.

In other words, that the structure of government with three branches only has value as long as it can be used to legitimize, without constraint of law or process, the intentions of those who are elected leaders.

But nevertheless - here is Boston Globe, praising itself for breaking new ground:
"What Charlie does and the reason he won this richly deserved Pulitzer is because he covered what the White House does, not just what it says," Globe Editor Martin Baron told his staff as they hoisted champagne and cheered Savage this afternoon in the newsroom. "It was his persistent and pioneering reporting that not only brought great honor to you, Charlie, but also to this newspaper."
...Really, what a fabulous statement. To assert that covering what the White House does, in favour of what they say, amounts to prize- winning national reporting.


Why don't you try and "shorten" the information that you copy and paste? Try publishing only a summary.
Duke? ..I'll leave the enumeration of the stumbling rhetorical attempts to cover up the partisanship and ignorance in that "article" for another thime.

And there's a difference. Clinton's fixers suggested, ahead of their little battle over a certain surveillance and ensuing search of a government office, that within the narrow framework of FISA, it would be up to the executive to decide what would fall under "national security", for instance. Which is, whether you like it or not, a long tradition in the US due to the way your government works.

Of course, I won't excuse a thing the Clinton- adminstration did when it comes to the question of the role of the executive branch. But I will explain the difference between what Bush has effectively enacted, what the consequences are, and then compare this to what Clinton did.

And the difference is this: the Clinton- administration worried that they would not be able to use the evidence they collected in this mentioned raid in a court. I.e, that they were within the right to conduct foreign intelligence operations with government assets on their say- so (a claim which is yet to be challenged or struck down) - but, they would not be able to make use of this in a civil court.

The problem here, of course, is that the Attorney General will have in this case two sets of laws to follow, whether he or she decides that something is a domestic operation (and so illegal and the evidence is void without a proper warrant), or that it is a foreign investigation (and under that framework the evidence cannot be used in a court).

This was seized upon by many conservatives as claimed to be unbearable, since noone could trust the Clinton- administration with choosing which sphere any operation would fit into. With, as an exception, very good reason - they used this paper- shuffling trick several times to put official records out of reach, by merely shifting it to the other side of the Attorney General's desk.

And so followed the Clinton- administration's solution, namely to create a "wall" between the domestic and foreign investigations (as mentioned in the 911 report, for instance), in order to avoid the mixing up of cases. This actually satisfied conservatives at the time.

But - and this is important - when an operation would be conducted under the less restrictive "foreign intelligence gathering" framework, the evidence would not be admissible in court when accusing an american citizen.

In other words, for all intents and purposes, the "wall" worked, and made sure that - while noone could stop Clinton hanging on people's windowsills, they would at least not be criminally liable for any White House monthly fad when it came to law- enforcement.

As we know, this "wall" between the domestic and foreign sphere was much discussed after the 911 attacks. And it was claimed that this "wall" created a problem for effectively pursuing malcontents and bad people domestically. It put up, according to some, a bureaucratic horror that meant it would be possible for the executive branch to order all kinds of listening- operations on Cuba, but then be powerless once the suspected terrorist escaped into the US.

Before we go any further, let's look at what is going on here. The White House is abusing, like Clinton, the executive's right to conduct foreign intelligence gathering. And like the Clinton- administration, they have a problem when this turns into a domestic operation. The solution, however, is not an attempt to keep the first separate from the second, and ensure that some protocol would be followed according to domestic law (subject to exclusive dictation by Congress). No, a carryover was sought instead.

The Bush- administration then draws up the PATRIOT Act. The sole purpose of it is to relax the standards and demands for accepting surveillance and investigation domestically. There are provisions in that law that are mere wallpaper - and put the responsibility for judging which rule- set is acceptable in the hands of the operational unit. Thus removing all culpability of malfeasance from the government, of course. But not removing potential abuses. As was demonstrated when Congress - fantastically - re- enacted the PATRIOT Act not long ago. Even though these objections were loudly made at the time.

(for more on these parts of the PATRIOT act, refer to the ongoing "re- confirmation" of Gonzales).

In any case - at this point, with the enactment of the PATRIOT act, the Bush- administration has already succeded in making the previously exclusive foreign intelligence- gathering part of domestic law- enforcement.

Nevertheless, there are other ways to use these powers than simply by allowing single investigations, and single targets be allowed to be pursued by the feds, without them having to go through the paper- mill. As we learned, once the next few scandals showed up. The domestic spying program is here one of the examples. Where the Bush- administration sees the problem - that there is no authority to use an expanded authority domestically. And then sets out to do the following:
1. suggest new (and abhorrent) legislation.
2. when that fails, claim that the unitary executive power grants the president the power anyway.
3. Equivocate.

The problem, of course, was that the White House couldn't lose on the domestic spying program, because they had already done it before seeking legislation. So naturally, problems ensue.

The torture- bill and the removal of Habeas corpus follow carefully in the same pattern. These are retroactive attempts to justify what the Bush- administration has already asserted is legal. However, lacking legal backing, when this is discovered (the black- sites through Dana Priest in the WP. Or for instance when the Bush- administration proudly declared it was going to put prisoners in Gitmo on trial in special courts, with special evidence, and special laws) it creates a need for the Bush- administration to assert what they have done as legal.

Eventually ending up in the idea that - as expanded upon in the bolded part in the first post - the executive branch is above the law. Indeed, as they say - "we must be trusted with such a responsibility in order to keep your freedoms safe".

I wonder - do you understand the difference between what Clinton and Bush has done now?

edit: btw, is live- blooging the Gonzales- hearing.