March 25, 2006

King Bush - The Unitary Executive

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John Conyers (Congress, D-MI) has called for censure of George W. Bush, as well as for an investigation into impeachable offenses. Russ Feingold (Senate, D-WI) has also called for the censure of Bush. These two brave representatives are trying to call attention to a dramatic undermining of the Constitution of the United States by the Bush administration. The list of investigatable offenses by the Bush administration is lengthy. John Conyers has links to more detailed information. The presidential directive to the National Security Agency to illegally wiretap has added to the list and prompted Feingold into action. There is no doubt at this point that the United States has a President who sees the full power of the government as his alone, and eschews any oversight of his actions, policies, or directives.

George Bush has been characterized as arrogant. While that may be a character flaw, the expression of that in his presidency presents a far greater issue. That arrogance on his part is translating on turning the Executive branch of government into the only meaningful branch with the President essentially acting as unchallenged king. The underlying philosophy for this usurpation of power is the concept of the "Unitary Executive."

This theory argues that the executive branch of government, held in the hands of the President, has the sole right to ignore all law (including the Constitution and international agreements), and without oversight by Congress, or checks by the Supreme Court. In short, the President is above the law and has all the authority of government, and the right to order without challenge all branches of government. This includes the ordering of the U.S. military into war without authorization by Congress. In short, the "unitary executive," as vested in the person of the President, is a king, an emperor, or a dictator. It represents one individual with total control of the full resources of the United States to take any action Bush sees fit.

The idea and attitude of the unitary executive philosophy has shown up in many ways. It presents itself when Alberto Gonzales testifies before Congress and informs them that the President will consult with them, or advise them. It is reflected when he refers to the President as "his client." It was a persistent theme in the confirmation hearing on Samuel Alito for the Supreme Court. However where the "unitary executive" most consistently, and officially, raises its head is in the "signing statements" that Bush frequently includes with his signing of legislation.

Signing statements are letters of the President's interpretation of the legislation he is signing. They have been used by the Supreme Court to interpret the intent and legality of certain decisions, so they are not just a statement of intent. George Bush, more than any other President before him has utilized the signing statement. Bush has set the record for signing statements with over 500 to date in his presidency. "Until the 1980s, with some exceptions, signing statements were generally triumphal proclamations and went mostly unannounced. Until Ronald Reagan became President, only 75 statements had been issued. Reagan and his successors George H.W. Bush and Bill Clinton made 247 signing statements between them." (Wikipedia). In many of those signing statements, Bush declares the power of the "unitary executive." Below is one example from the Reauthorization of the USA PATRIOIT Act (emphases mine)

President's Statement on H.R. 199, the "USA PATRIOT Improvement and Reauthorization Act of 2005"

Today, I have signed into law H.R. 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005," and then S. 2271, the "USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006." The bills will help us continue to fight terrorism effectively and to combat the use of the illegal drug methamphetamine that is ruining too many lives.

The executive branch shall construe the provisions of H.R. 3199 that call for furnishing information to entities outside the executive branch, such as sections 106A and 119, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties.

The executive branch shall construe section 756(e)(2) of H.R. 3199, which calls for an executive branch official to submit to the Congress recommendations for legislative action, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to recommend for the consideration of the Congress such measures as he judges necessary and expedient.



March 9, 2006.

The use of "unitary executive" comes up four times in the signing statement for the Department of Defense Supplemental Appropriations bill (see full statement at end of this article). Those four claims of unchecked authority relate to: 1) restructuring of the Department of Defense; 2) foreign intelligence; 3) detention, rights, treatment and torture of detainees and enemy combatants (the McCain anti-torture resolution); direction of all activities of domestic law enforcement.

The Bush administration has made no secret of its claim to total power and authority without the constraints of law or Constitution. Increasingly, that flaunting of usurped power has been part of justifications for the actions of the administration. This is clearly the case in all public statements of the administration relating to the use of illegal wiretapping by the NSA. Yet, our elected representatives have largely refused to act, or to stand behind those who do, to stop the usurpation of power. In fact, the Republican controlled Congress has largely facilitated the process.

The Constitution of the United States is prefaced by the statement:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

It is a government of, by and for the people. The President is not the only representative that needs to be held accountable for the destruction of our Constitution. So too must those elected representatives who have allowed this perversion of our Constitution to go unchecked. I care not whether they are Democrat, Independent, or Republican. There is no justification for the wholesale trampling to the basic structure and principles of our government. What we see now is not a democracy. It is no more of a democracy than Iraq under Hussein. If one person holds all power within a government, then by no stretch of the imagination can that be considered democratic.

George Bush has three more years in office unless he is either impeached, or decides to declare himself the "unitary executive" and remain in office until his death. The latter seems more likely than the former at this point. Will "We the People" stand by and watch this happen, or will we make it undeniably clear to our representatives that they must act or they will not be re-elected? If We the People do NOT take action, then we will lose all power to have a voice in the conditions of our lives at all. It is OUR responsibility to hold ALL elected representatives accountable for their actions and inactions.

I have watched as my country has moved closer and closer to a military state. I have watched as corporations have merged with the apparatus of the state. I have watched as laws and rights and common decency have been swept aside leaving us all bare to the abuses of government. This is not the country that I want to pass to future generations. It is not the government which I want to live under. Democracy is "messy," but it is not bloody. It is a system of checks and balances, not a system of tyrannical control.

President Bush has marched us into a "war on terrorism" with a key weapon being the spreading of "democracy." Given his belief and implementation of the "unitary executive" in his own nation, what is that vision of democracy he wishes to impose on other nations? Is that the vision that we want to kill and die for? Is that the vision of democracy that the people of the United States hold? Somehow, I don't think that those who consistently say that "our soldiers have fought and died to protect our freedom" had the freedom of living under a military state controlled by a dictator in mind. Yet that is exactly where we are increasingly finding ourselves.

What can we do?
1. Write in support of those who are standing up (Conyers and Feingold for instance).

2. Write a letter of your concerns and send it to all of your Senators and Congress people.

3. Sign John Conyers' call for an Action Steps listed at John Conyers site.

5. Be informed.

6. Talk with others and share information and opportunities to act.

7. As candidates visit their home districts and have town hall meetings, and campaign events, address your concerns publicly.

8. Write letters to the editor.

9. Raise the issues and share information in your community groups.

10. Use your voice while it is still semi-legal to do so.

Take back the power of the people!

3/24/06 Charlie Savage, Boston Globe, Bush Shuns Patriot Act Requirement

3/06/06 Paul Waldman, TomPaine, 'Unitary Executive' Or Autocracy?

Wikipedia, History of the 'Signing Statement'

1/26/06 Armando, DailyKos, What A "Unitary Executive" Means - President As King

1/12/06 Sidney Blumenthal, Guardian, George Bush's rough justice - Alito avid adherent of the unitary executive

1/18/06 Elizabeth de la Vega, originally in, Big Brother is watching you (and blowing it)

1/30/06 Dahlia Lithwick, Slate, Sign Here:
Presidential signing statements are more than just executive branch lunacy

President's Statement on Signing of H.R. 2863, the "Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006", 12/30/06 (emphases mine)

Today, I have signed into law H.R. 2863, the "Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006." The Act provides resources needed to fight the war on terror, help citizens of the Gulf States recover from devastating hurricanes, and protect Americans from a potential influenza pandemic.

Sections 8007, 8011, and 8093 of the Act prohibit the use of funds to initiate a special access program, a new overseas installation, or a new start program, unless the congressional defense committees receive advance notice. The Supreme Court of the United States has stated that the President's authority to classify and control access to information bearing on the national security flows from the Constitution and does not depend upon a legislative grant of authority. Although the advance notice contemplated by sections 8007, 8011, and 8093 can be provided in most situations as a matter of comity, situations may arise, especially in wartime, in which the President must act promptly under his constitutional grants of executive power and authority as Commander in Chief of the Armed Forces while protecting certain extraordinarily sensitive national security information. The executive branch shall construe these sections in a manner consistent with the constitutional authority of the President.

Section 8059 of the Act provides that, notwithstanding any other provision of law, no funds available to the Department of Defense for fiscal year 2006 may be used to transfer defense articles or services, other than intelligence services, to another nation or an international organization for international peacekeeping, peace enforcement, or humanitarian assistance operations, until 15 days after the executive branch notifies six committees of the Congress of the planned transfer. To the extent that protection of the U.S. Armed Forces deployed for international peacekeeping, peace enforcement, or humanitarian assistance operations might require action of a kind covered by section 8059 sooner than 15 days after notification, the executive branch shall construe the section in a manner consistent with the President's constitutional authority as Commander in Chief.

A proviso in the Act's appropriation for "Operation and Maintenance, Defense-Wide" purports to prohibit planning for consolidation of certain offices within the Department of Defense. Also, sections 8010(b), 8032, 8037(b), and 8100 purport to specify the content of portions of future budget requests to the Congress. The executive branch shall construe these provisions relating to planning and making of budget recommendations in a manner consistent with the President's constitutional authority to require the opinions of the heads of departments, to supervise the unitary executive branch, and to recommend for congressional consideration such measures as the President shall judge necessary and expedient.

Section 8005 of the Act, relating to requests to congressional committees for reprogramming of funds, shall be construed as calling solely for notification, as any other construction would be inconsistent with the constitutional principles enunciated by the Supreme Court of the United States in INS v. Chadha.

The executive branch shall construe section 8104, relating to integration of foreign intelligence information, in a manner consistent with the President's constitutional authority as Commander in Chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch. Also, the executive branch shall construe sections 8106 and 8119 of the Act, which purport to prohibit the President from altering command and control relationships within the Armed Forces, as advisory, as any other construction would be inconsistent with the constitutional grant to the President of the authority of Commander in Chief.

The executive branch shall construe provisions of the Act relating to race, ethnicity, gender, and State residency, such as sections 8014, 8020 and 8057, in a manner consistent with the requirement to afford equal protection of the laws under the Due Process Clause of the Constitution's Fifth Amendment.

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action. Finally, given the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005.

Language in Division B of the Act, under the heading "Office of Justice Programs, State and Local Law Enforcement Assistance," purports to require the Attorney General to consult congressional committees prior to allocating appropriations for expenditure to execute the law. Because the President's constitutional authority to supervise the unitary executive branch and take care that the laws be faithfully executed cannot be made by law subject to a requirement to consult with congressional committees or to involve them in executive decision-making, the executive branch shall construe the provision to require only notification. At the same time, the Attorney General shall, as a matter of comity between the executive and legislative branches, seek and consider the views of appropriate committees in this matter as the Attorney General deems appropriate.

Certain provisions in the Act purport to allocate funds for specified purposes as set forth in the joint explanatory statement of managers that accompanied the Act or other Acts; to make changes in statements of managers that accompanied various appropriations bills reported from conferences in the past; or to direct compliance with a committee report. Such provisions include section 8044 in Division A, and sections 5022, 5023, and 5024 and language under the heading "Natural Resources Conservation Service, Conservation Operations" in Division B, of the Act. Other provisions of the Act, such as sections 8073 and 8082 in Division A, purport to give binding effect to legislative documents not presented to the President. The executive branch shall construe all these provisions in a manner consistent with the bicameral passage and presentment requirements of the Constitution for the making of a law.



December 30, 2005.

Posted by rowan at March 25, 2006 07:22 AM | Printable Version | [eMail this article!] |

Note that the Action link above no longer "links." Also, the page is inaccessible from the site itself. Someone does not want "We the People" to gather to impeach "King George." The power of determination....

Posted by: Shawna at March 27, 2006 10:05 AM


Could you please explain to me why international wiretapping of calls to and from Al Qaeda is "illegal"? In particular, please let me know which statutes are violated, or, which provision(s) of the Constitution are transgressed. I'm assuming that when you say it is "illegal," you mean it violates a statute.

Help appreciated.

Posted by: Micklethwait at March 27, 2006 03:35 PM

Shawna - Conyers site must have been down for some reason. The action link is working now.

Micklethwait - The wiretapping is illegal on several fronts. First, wiretapping of communications within the United States requires a warrant. If the communication recipients or originators are inside the U.S., and they are not citizens of the United States, then that warrant comes from the F.I.S.A. court. The F.I.S.A. laws were expanded under the USA PATRIOT Act to include those considered agents of a foreign power (even if US citizens) and to allow a warrant to be sought up to 72 hours after the wiretapping began.

President Bush, by his own admission, engaged in warrantless wiretapping.

From all that we know of the wiretapping (which occurred and still continues), it was non-selective. It was a tapping of communications hubs. In other words, everything that went through those communications hubs was tapped. These hubs are purportedly international hubs (meaning communications outside the United States). The wiretapping was not of Al Qaeda - who apparently we can't find - but of all international communication passing through the hub. This is likely one reason that no warrant was sought - you need to have some target to get a wiretap approved. This method had no target.

From reports of those who are experts working with the NSA, the technology used to then sort through the mass of communications intercepted through the hubs was defunded by Congress. It is from the TIA (total information awareness program run by Poindexter through DARPA. It was defunded because it was a technology aimed at an egregious invasion of privacy as guaranteed to citizens of the United States through the Bill of Rights. Therefore, President Bush also violated the privacy rights as guaranteed under U.S. law.

Posted by: rowan at March 28, 2006 06:57 AM

First, it is common knowledge that the President’s constitutional powers include the power to conduct warrantless surveillance aimed at detecting and preventing armed attacks on the United States. Consider these facts:

1. In the Civil War, both sides in the conflict routinely intercepted telegraph communications.
2. In WWI, President Wilson ordered the interception of all cable communications between the United States and Europe.
3. In WWII, Roosevelt authorized the interception of all communications traffic into and out of the United States.

It is worth noting that the interception of international communications linked to Al Qaeda and its allies is, compared with the historical examples cited above, a very narrow use of the President’s constitutional powers. Thus, even absent congressional authorization, this type of wiretapping is clearly within constitutional bounds.

Second, this inherent Presidential authority has been strengthened by congressional authorization. FISA has an exception for surveillance authorized by another statute. The congressional Authorization for Use of Military Force is precisely such a statute. Therefore, there is no violation of FISA.

Now, you might argue that the President is misconstruing the Authorization for the Use of Military Force. Perhaps he is reading it too broadly. If so, all that congress would have to do is introduce a resolution stating that the Authorization was not intended to authorize this type of surveillance. Congressional inaction here is highly significant.

The reality is that extensive warrantless wiretapping is common in times of war. The wiretapping going on here is relatively mild in that it targets communications in which Al Qaeda members are one end of the call. Finally, FISA contains an explicit exemption for authorization by other statutes, and congress has acted giving the President full authorization for the use of force. That authorization can reasonably be construed to include intercepting international communications transmitted to and from the enemy.

Posted by: Micklethwait at March 28, 2006 01:27 PM
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Crd Lorraine Denicourt