WHY BUSH IS ALWAYS RIGHT

By Martin Petersen

[This article published in: Ossietzky 5/13/2007 is translated from the German on the World Wide Web, www.linksnet.de/drucksight.php.]

For 220 years, an exemplary separation of powers has prevailed in the United States of America. Congress passes laws, the president executes laws and courts interpret them and rescind them when necessary. After congress works out a law, it is presented to the president who then according to the constitution has two possibilities: signing the law or sending the bill back with his objections. If the president rejects the revised bill, the congress can overturn it with a two-thirds majority. Thus the president has no real right of veto – the term does not occur in the constitution. In 1998, the Supreme Court declared the president has no partial veto right to annul sections of a law disagreeable to him.

Nevertheless he does this – with an instrument not defined or named in any US legal regulation, the “signing statement.” The first such statement came from President Monroe who discovered an inconsistency in an 1822 legal text. In signing a law, later presidents occasionally made a note that originally was merely an informal political commentary. However since 1986 it has become a political weapon. The president inserts them to interpret away legal regulations for the courts or simply to ignore them. What Ronald Reagan began, Bush Senior, Clinton and Bush Junior continue extensively.

The current president has already produced more signing statements than all his predecessors in office altogether. According to the most recent information, there are 147 statements in which Bush interpreted and declared invalid at least 1140 regulations in around 150 US laws in his discretion.

No one knows who formulated Bush’s statements. The Internet page of the White House only lists them incompletely. The explanations are formulated in a language often unintelligible for legal law persons and meaningless without the legal texts interpreting them. For a long time, the congress has had no legal remedies for reviewing the explanations of the president in a court. A corresponding legal bill failed in December 2006. Although the statements have no legal character, they have a great effect. They are work instructions that the president gives his departments on how they should interpret and apply new laws.

Bush provided such laws with a statement that limited their official authority. Again and again he said in his explanations he would interpret the new law so “it would be consistent with his constitutional authority as the unitary executive (he speaks of himself in the third person). The Unitary Executive Theory (cf. Ossietzky 8/07) grants the president – and only the president – the right to interpret laws for his departments. Conservative lawyers developed this theory when the office of the president fell into a deep crisis of credibility through Nixon’s lies about the Vietnam War and Watergate and was controlled more strictly by the congress.

In George W. Bush’s term in office, the Unitary Executive Theory has been the fitting legal foundation for the permanent self-authorization of the president. Its application can be illustrated in an example. After the scandal around the US prison Abu Ghraib, republican senator John McCain introduced an amendment to forbid employees of the US government from using torture. First, President Bush threatened not to sign this law. Then his surrogate Cheney sought an exception for the CIA. Finally, the president yielded, gave McCain a red-carpet treatment in the Oval Office, spoke out against torture and signed the law before the eyes of the world. The next day his signing statement appeared on the White House’s Internet page almost unnoticed by the general public. Bush said there as commander-in-chief of the armed forces he was not bound by the law signed the day before. Thus torture can continue. With the same argument, Bush granted the right to his security department to spy on US citizens without special reason by telephone and the Internet.

With his signing statements, the president blurs the separation of powers and creates a grey zone where everything is possible. He weakens the congress and the courts. He furnishes a model for all his successors in office who may strive for dictatorial powers. The largest legal association of the United States, the American Bar Association (ABA), issued an expert opinion on Bush’s statements in the summer of 2006. “Serious objections are raised that are crucial for the survival of our democracy.”

Bush has been war president for five-and-a-half years. He orders the global crusade “against terror.” Up to now little public criticism was directed at his disturbing signing statements since critics would be immediately branded as “unpatriotic.” However Bush’s crusade has become a murderous fiasco. The US and its citizens are hated worldwide as never before. The coming constitutional crisis – Senator Edward Kennedy already compared Bush with the Watergate-lair Nixon and announced an “inevitable” reaction of congress – could develop into one of the purifying storms that have already removed some deluded politicians in the United States.