Former Vice President Dick Cheney aka The Penguin, hid a CIA program from congress according to CIA Director Leon Panetta who briefed Congress on the situation. The program, which according to sources began in 2001, has been shut down by Panetta. Withholding such information from Congress is illegal.
Withholding such information from Congress is illegal.
Only if the contemplated plan of action is significant enough to trigger the obligation to inform Congress under the National Security Act, which is not at all clear given the thus far extremely vague “on-again, off-again,” “never fully operational,” “on the shelf” nature of this program, such as it was. The CIA is not legally required to brief Congress whenever analysts brainstorm specific ways for doing things that everyone knows the agency is already working on, like destroying Al-Qaeda.
Only if the contemplated plan of action is significant enough to trigger the obligation to inform Congress under the National Security Act, which is not at all clear given the thus far extremely vague “on-again, off-again,” “never fully operational,” “on the shelf” nature of this program, such as it was.
That’s what we know now. It’s sounding more and more like we’re going to find out differently shortly, however.
Until that happens, of course, I’ll agree with Joe.
C’mon guys..this is clearly a tempest in a teapot. The whole purpose of this leak (yet again providing the intelligence services with more incentive to keep things secret from Congress) was to provide cover for Speaker Pelosi and her obvious lie when she claimed that the CIA had lied to her.
If Pelosi had not made her ridiculous statements we would have never heard of this story.
Sure gahrie, its all the democrats fault, not Cheney’s fault for deciding he gets to keep secrets from congress and yet again overstepping his power.
1) You’re behind the times, Cheney’s role has been greatly overstated. And I repeat, if Vice-President Cheney had told the CIA to keep the program secret due to a concern over leaks, events have proven him correct.
http://www.npr.org/blogs/thetwo-way/2009/07/former_cia_director_no_one_tol.html
2) The program was never briefed to the president, never made operational. It was an idea that was considered from time to time. Trust me when I tell you that there are many hundreds of similar programs that were never briefed to the Congress during the life of the CIA.
3) When do you think a special prosecutor will be appointed to investigate these leaks of a classified briefing and similar leaks over the years?
4) Do you believe Speaker Pelosi’s ridiculous statements trying to cover her ass on waterboarding?
LOL . . . why would intelligence services would want to keep information from senators like “Leaky Leahy”?
” You’re behind the times, Cheney’s role has been greatly overstated. And I repeat, if Vice-President Cheney had told the CIA to keep the program secret due to a concern over leaks, events have proven him correct.”
Doesn’t matter what Cheney believed, if its against the law, its still against the law.
Good lord, Dick Cheney could rob a bank in broad daylight, then steal cookies from a bunch of girl scouts, and then torture someone on live tv and you would STILL defend him.
David K:
You’re missing the point…the Director of the CIA says Vice president Cheney never ordered or asked him to keep the program from Congress.
If Dick Cheney ran into a burning house and saved a young girl and her puppy, you would demand an investigation to prove he deliberately set the fire and faked the rescue.
gahrie, no YOU are missing the point. The CURRENT director of the CIA informed congress now. The FORMER Vice-President ordered the program to be kept secret for over 7 years during which time it was indeed operational, despite what you claim. All you need to do is read the linked story before you start coming up with defenses for Cheney. If you are going to try and defend him from yet another example of his abuse of power you should atleast start with something resembling reality.
And the difference between your analogy and mine is that I criticize cheney based on what he’s actually done, you defend him based on what your ideology demands you believe.
1) The story I linked above outlines how Vice President Cheney’s role in all of this was vastly overstated by (gasp) Democratic staffers who leaked the story in the first place, and (gasp) the left wing media outlet they leaked it to. In other words, the story you linked is incorrect.
2) The CIA director at the time Cheney was Vice President has stated that the vice president did not make such an order. The current director, who would have no personal knowledge of Cheney’s actions, and certainly a motivation to provide cover to his former compatriot in the House (Pelosi) has briefed Congress on a program that in fact was NEVER operational, and like hundreds odf similar operations, was merely in the planning stages.
3) If this program ever had become operational, as I thing it should have been, it would only have been prudent to keep it classified, and not fully briefed to Congress or ut would have been leaked by Democrats and ruined.
The FORMER Vice-President ordered the program to be kept secret for over 7 years during which time it was indeed operational, despite what you claim. All you need to do is read the linked story before you start coming up with defenses for Cheney.
From the linked story:
never fully operational
So it was operational.
” If this program ever had become operational, as I thing it should have been, it would only have been prudent to keep it classified, and not fully briefed to Congress or ut would have been leaked by Democrats and ruined.”
Wow gahrie, you are a piece of work. A real honest-to-goodness blind partisan and an example of what was so frightening about Bush loyalists.
In your world view the law doesn’t matter. Cheney should be allowed to do whatever he wants. Do you really not grasp why its a BAD IDEA to give our leaders unchecked power, or do you just not care because you think they will only use it to benefit you? Good lord, read a history book or something before you hurt yourself.
Do YOU understand why it’s a bad idea for Democratic staffers to leak classified briefings?
When I first heard of this story, my first two reactions were:
A) Why the hell didn’t we ever put this program into operation?
B) When the hell are we going to start prosecuting some of these scumbags for constantly leaking classified briefings?
By the way I never said anything about Cheney in the comment you wrote. I said the CIA should have tried to kill or capture the leaders of Al Queda and that they should have kept the program secret so it couldn’t have been leaked by the Democrats. You need to rein in your knee jerk hatred of Bush and Cheney.
Were you one of the leftys ranting about signing statements? Guantanimo? Iraq? Rendition? Executive priviledge to prevent testimony? Secret meetings in the White House?
Guess what? President Obama’s administration has done exactly the same things in these areas as President Bush’s.
Aren’t you just a little bit curious about how Goldman Sachs has so many former executives in the current government, and has managed to see its two major competitors go out of business and (surprise) see record profits this year? Or are record profits only bad when they are made by oil companies?
No Gahrie, you don’t understand. You said, multiple times, that it would/was ok for Cheney to keep it a secret from congress because someone would leak info about it if he didn’t. The fact that you think that is proof you don’t care about the law because doing that WOULD BE ILLEGAL.
Should people be leaking classified briefings? No, they should not. But you are using that as an excuse/red herring to distract from your blatant acceptance, no make that championing, of Cheney’s illegal behavior.
And no, President Obama has not even approached the quesetionable and illegal activities that the Bush administration participated in over the past eight years, don’t even try and distract from the issues at hand with such ridiculously partisan statements.
I don’t have a knee jerk hatred of Bush and Cheney, I have an incredibly well earned disdain for them and their abuse of power based on WHAT THEY HAVE DONE. You are and continue to be a partisan ideologue who can’t understand the difference. No matter how I or anyone tries to point it out to you you will always believe whatever Rush and co. tell you and blame everything on the Democrats, you don’t even TRY and look at things objectively and if it weren’t so sad and painful because there were enough people like you to elect and re-elect Bush in the first place, it would be down right hillarious!
David K:
I have never accepted the charge that Cheney ordered the CIA to keep something secret from Congress. I have refuted the charge, not defended Cheney’s from the accusation.
I have stated that IF Cheney or the CIA had decided to keep something secret from Congress in order to protect it from Democratic leaks, events have proven them correct.
Tell you what, cite one supposed abuse of power from the Bush administration that has not been endorsed/committed by the Obama administration.
By the way, I haven’t listened to Rush in at least 10 years, probably closer to 15.
“I have stated that IF Cheney or the CIA had decided to keep something secret from Congress in order to protect it from Democratic leaks, events have proven them correct.”
Which would be illegal. Period. Nothing excuses that. You are, as I said, defending the idea that Cheney could violate the law, because he thinks its ok. You have proven my point 100% that you don’t get it.
Guess what? President Obama’s administration has done exactly the same things in these areas as President Bush’s.
Bwahahahahahahahhaha.
(catches breath)
Bwahashasjajkajfk;lasjdklv’k2m’kmvkq
So it was operational.
Except of course that it never fully was, so no. “Operational” in military/intelligence terms means the program was ready to go. This program was never fully ready to go, meaning it was only partly ready to go, meaning that it wasn’t ready to go. Hence, it was not operational. Reports are that the teams tasked with carrying out the assassinations of top Al-Qaeda members were barely assembled, let alone trained to carry out any operations. This “program,” such as it was, was never close to being implemented, so it’s not only possible but probable that, like I said, the CIA was not under a legal obligation to brief Congress.
“You are, as I said, defending the idea that Cheney could violate the law,”
Do you have a reading comprehension problem? At worst I am asserting that the CIA could violate the law. It is a simple undeniable fact that when classified programs are not closely held (ie only the chairmen of the intelligence committees briefed) Democratic staffers and elected officials leak these programs to the media.
pthread: I repeat:
“Tell you what, cite one supposed abuse of power from the Bush administration that has not been endorsed/committed by the Obama administration.”
“Guess what? President Obama’s administration has done exactly the same things in these areas as President Bush’s.”
Bwahahahahahahahhaha.
LOL . . . Obama most certainly has done exactly what Bush did regarding signing statements, just as he’s made sure that Bush’s rendition policies remain largely intact (e.g., Obama has used the same “state secrets” privilege to block a rendition lawsuit), just as he’s said that some detainees at Guantanamo may still be held without trial indefinitely (even if they were charged with a crime, tried and acquitted), so I’m not sure what “Bwahashasjajkajfk;lasjdklv’k2m’kmvkq” is supposed to mean, unless that’s code for “Obama is a hypocrite but I’m not willing to admit it.”
Just for the record:
http://patterico.com/2009/07/14/democrats-to-investigate-%E2%80%9Csecret%E2%80%9D-program-reported-by-nyt-in-2002/
Except of course that it never fully was, so no. “Operational” in military/intelligence terms means the program was ready to go.
If it was in the process of being implemented, it was operational. It was beyond the stage of conjecture, from the sounds of things (of course *this* is all conjecture, we don’t know the extent of things). Despite what you claim, the only available military definition of operational I could find agrees with me:
“(military) of or intended for or involved in military operations ”
http://www.google.com/search?hl=en&q=define%3Aoperational&aq=f&oq=&aqi=g10
The point is, pretending this was just some sort of idea floating around is false. Were funds allocated, were people brought in? I’d say so. If so, I think they should have notified congress.
gahrie: Well, let me predict the future and predict I’ll name one and you’ll claim it wasn’t an abuse of power.
But hey, I’ll humor you. Here’s one: all interrogations must follow the Army field manual now.
Joe Mama: So your position, just so we’re clear, is that the Obama administration in these areas is exactly the same as the Bush administration? Seriously, I want you to explicitly own that statement.
“The point is, pretending this was just some sort of idea floating around is false. Were funds allocated, were people brought in? I’d say so. If so, I think they should have notified congress.”
So you believe that everytime the CIA comes up with an idea and spends some money to research/plan/study it Congress has to be briefed? The CIA briefers and Congressional committees are going to be mighty busy………
By the way, the NY Times write a story about this “secret” operation in 2002. I posted a link about it above.
Well, you’re right I wouldn’t label the country’s interrogation policy as an abuse of power, but rather a policy difference. I fail to see how the Bush administration’s interrogation policy is an abuse of power. The administration fully briefed Congress on its policies, and if the President does not have the right to set the policy, who does? Not every disagreement is an abuse of power.
I think it’s rather telling that the left insists that terrorists cannot be waterboarded, while at the same time allowing US servicemen to be waterboarded as part of their training…….
An abuse of power would be something like signing statements. You can make a serious case that the president only has two choices: just sign the bill or veto it. Obama the candidate attacked Pres. Bush on his signing statements. Pres. Obama has produced signing statements of his own.
You could also argue that not releasing the names of those meeting with the president in the White House is an abuse of power. Again, candidate Obama attacked President Bush for this, but then did exactly the same thing when in office.
You could argue that holding terrorists indefinitely is an abuse of power. (although pretty tame comapred to what happened in the Civil War and World War II) Yet again, candidate Obama attacked President Bush, and then preceded to do exactly the same thing as president.
An abuse of power is using your power to do something you don’t have the right to do. The president does have the right to set the policy on interrorgation.
Your proposed definition is problematic, pthread. First, “involved in military operations” doesn’t support your position because the program was never implemented and thus it was never actually involved in any military operations. Second, “intended for military operations” doesn’t make sense given that the program is being described by sources as never fully operational — so the program was never fully intended for military operations? Huh? My proposed definition is much more sensible, which is probably why no source in any story I’ve read on this subject has described the program as “operational.”
So your position, just so we’re clear, is that the Obama administration in these areas is exactly the same as the Bush administration? Seriously, I want you to explicitly own that statement.
Well gee, when you put it like that, I guess I can’t explicitly own that statement. For one thing, the signatures on the signing statements are different (of course, that’s all that matters for some people).
So you believe that everytime the CIA comes up with an idea and spends some money to research/plan/study it Congress has to be briefed? The CIA briefers and Congressional committees are going to be mighty busy………
This wasn’t some sort of committee to investigate the use of propaganda leaflets in a third-world country. This was a huge operation. If money is allocated, people brought in, it should be made known. The standard shouldn’t be, “Oh hey, we did this.” There’s no reason congress can’t get briefed on ongoing plans. And I’m not talking about committees like they need to tell everybody in their brother, tell the bare minimum of people. If they fail to do anything effective about it like Pelosi, so be it. At least there was transparency.
I wouldn’t label the country’s interrogation policy as an abuse of power, but rather a policy difference.
There is talk of disbarring Yoo and others formerly at the Justice department. That’s not a policy difference, that’s an abuse of power.
I think it’s rather telling that the left insists that terrorists cannot be waterboarded, while at the same time allowing US servicemen to be waterboarded as part of their training…….
Those two things aren’t the same and you know it. To state otherwise is dishonest on its face.
An abuse of power would be something like signing statements. You can make a serious case that the president only has two choices: just sign the bill or veto it. Obama the candidate attacked Pres. Bush on his signing statements. Pres. Obama has produced signing statements of his own.
This shows you have a fundamental misunderstanding of what signing statements are, how Bush used them, and how Obama has said he will use them.
The problem with Bush’s use of signing statements was not only that he used them so extensively but that he used them to make pronouncements about controversial interpretations of the constitution, including specific references to the power of the unitary executive. Obama’s signing statements, on the other hand, are used as signing statements are intended to be used: to take issue with the constitutionality of certain aspects of a bill. I haven’t seen an Obama signing statement yet that’s used a controversial interpretation of the constitution.
Note you are factually incorrect when you claim that Obama said he would not use signing statements. He never said that.
You could also argue that not releasing the names of those meeting with the president in the White House is an abuse of power. Again, candidate Obama attacked President Bush for this, but then did exactly the same thing when in office.
I actually agree with you here, if he meets people in the White House, their names should be public. If secrecy is really needed, go elsewhere. But your statement was that I couldn’t find one thing Obama has done differently, and I’ve already done that, so it’s irrelevant.
You could argue that holding terrorists indefinitely is an abuse of power. (although pretty tame comapred to what happened in the Civil War and World War II) Yet again, candidate Obama attacked President Bush, and then preceded to do exactly the same thing as president.
Again, I’ll agree with this. I think it is. Although the difference is, I recognize the marked difference between Bush’s handling of this and Obama’s. It’s night and day. And also, being fair, it’s much harder to extricate oneself from having these prisoners after they are there, Obama will not be collecting new peopleto hold indefinitely.
But again, the point wasn’t whether or not Obama continues some of Bush’s abuses of power, it’s whether or not they were exactly the same. Even permitting for hyperbole, they are very different.
An abuse of power is using your power to do something you don’t have the right to do. The president does have the right to set the policy on interrorgation.
Right, but only within the bounds of the law. Bush stepped outside, on several matters. Obama is largely returning to those confines.
because the program was never implemented and thus it was never actually involved in any military operations. Second, “intended for military operations” doesn’t make sense given that the program is being described by sources as never fully operational — so the program was never fully intended for military operations?
We don’t know that there were never actual operations either for intelligence gathering pursuant to assassinations, or missions that just failed. As far as I know, the only statement that has been made is that:
1.) It was never fully operational, which could mean that it never grew to the size and scope it was planned to, not that action was never taken.
2.) No assassinations were carried out, which does not mean they didn’t try, nor does it mean operations weren’t carried out.
I realize we’re getting into conjecture here, and admit I’m allowing myself to be led down a path I probably don’t want to be, so let me point back to my original statement where I agreed with you, with the caveat that time will tell the true tale, and while Cheney should not be condemned now for what we don’t know, I think that acting as if it’s laughable on its face that this could all be true would be foolish, don’t you agree? So my official position: while Cheney cannot be condemned now, we should learn more about this and will likely have to reevaluate that statement in the future. Agreed?
As far as the second half of the quoted part, that reads very circularly, sorry, I don’t agree.
Well gee, when you put it like that, I guess I can’t explicitly own that statement. For one thing, the signatures on the signing statements are different (of course, that’s all that matters for some people).
Good to see you are taking the discussion seriously. I’ll take that as an admission that the statement I quoted is laughable on its face, and you don’t agree with it.
[W]hile Cheney cannot be condemned now, we should learn more about this and will likely have to reevaluate that statement in the future. Agreed?
Agreed. That is exactly why my first post took issue with the following statement in the original post: “Withholding such information from Congress is illegal.” It may very well not be illegal.
Good to see you are taking the discussion seriously. I’ll take that as an admission that the statement I quoted is laughable on its face, and you don’t agree with it.
You can take it as an admission that my position — which should be clear to even a casual observer — is that there is no principled difference between Bush and Obama regarding their use of signing statements, rendition policies, invocation of privilege, indefinite detention of terrorist detainees, and several other issues on which President Obama has contradicted candidate Obama.
There’s no principled difference?
Did you read my discussion of signing statements? Explain to me how you think Obama’s use of signing statements is the same as Bush’s, specifically refuting my assertions that Bush’s were out of line with established views of the constitution where as Obama’s are not.
On indefinite detention, although I’ve already said that I’m disappointed that he didn’t go all the way, the claim that there isn’t a principled difference is ridiculous. Obama will glose Gitmo. He will move most of the prisoners out, and give many trials. How is that not a principled difference? Must he do everything differently on a subject for it to be different for you? Have you ever seen a Venn diagram? Distinct entities can overlap while still being distinct.
“CIA Director Leon Panetta told a congressional committee in June that he was told former >Vice President Dick Cheney ordered the intelligence agency to withhold information about the secret program from Congress.”
So either Leon Panetta is lying now, or gahrie is dead wrong that Cheney didn’t illegal hide information from Congress. Hmm, who to believe…
I think you are missing their valid point. It’s not clear yet that there was a duty to inform.
What is wrong with their position is that they are acting as if we know everything, where as an objective observer would suppose that we’re just seeing the tip of the iceberg here. The story is developing.
1) This “secret” program was discussed in a story by the NY Times in 2002.
(see my link in comment #22)
2) The program was based on a presidential finding that Congress had been fully briefed on, and while money was spent, it was never operational.
( http://online.wsj.com/article/SB124736381913627661.html )
3) “In recent years, in the light of revelations over CIA secret prisons and harsh interrogation techniques, Congress has pushed for greater oversight. The Obama administration, much like its predecessor, is resisting any moves in that direction.”
So Congress is demanding more briefing on the CIA’s actions than they have in the past, and are using this case as a crowbar. President Obama is yet again agreeing with the Bush administration and continuing to do exactly as he did.
(see article quoted in point #2 above)
4) Former CIA Director Michael Hayden has stated that there was never an order by Vice President Cheney to cover up the program.
(see link in comment #5)
5) Speaker Pelosi in an absurd attempt to cover her ass has accused the CIA of lying to her.
6) Current CIA Director Panetta served with Speaker Pelosi in the House for many years.
7) Hmm…who to believe?
8) Are you ever going to answer my question? Should Democratic leaks of classified and secret briefings and information be investigated?
Did you read my discussion of signing statements? Explain to me how you think Obama’s use of signing statements is the same as Bush’s, specifically refuting my assertions that Bush’s were out of line with established views of the constitution where as Obama’s are not.
I did, and it was lacking in several respects. As a threshold matter, the frequency of Bush’s use of signing statements was in keeping with his father’s, Clinton’s and Reagan’s under the traditional measure of counting the number of bills about which the president makes such statements. Only under the misleading – and novel – approach of counting the number of individual provisions referenced in a signing statement can Bush’s use of them be considered extensive relative to his predecessors.
Bush’s statements that he would construe particular statutory provisions consistent with his obligation to uphold the power of the unitary executive are indistinguishable from similar statements from past presidents of both parties. The concept of the unitary executive, properly understood (i.e., that POTUS has broad authority to direct the exercise of discretion by officials in the executive branch because executive power is vested solely in the President under Article II), has been followed by every president since Washington, fervently defended by every president going back to at least Truman, and has specifically been done in signing statements since Reagan, so the vast majority of Bush’s pronouncements really aren’t all that controversial, at least not if you’re familiar with the relevant history. Now, if you’re talking about the so-called “unitary executive theory,” which purportedly aims to equally position the three branches of government with respect to interpreting the constitutionality of the laws, that’s something else. But taking issue with the constitutionality of portions of a bill is tantamount to making the executive branch co-equal with respect to interpreting constitutionality anyway, so if you think it’s okay to do that in a signing statement, then you really support the “controversial” unitary executive theory and you just don’t realize it.
As for Obama, his signing statements have been no less “out of line with established views of the constitution” if you’re being honest with yourself. To take one example, Obama’s statement upon signing the appropriations bill rejected provisions barring the expenditure of money on UN peacekeeping missions where US troops are put under a foreign commander without the recommendation of his military advisers. As a constitutional matter, it’s well-accepted that Congress has the power to use appropriations to restrict “foreign entanglements” as a check on executive authority. So I don’t see how you could dismiss Obama’s statement as not being a “controversial interpretation of the constitution” without indulging in some pretty blatant rationalizing.
On indefinite detention, although I’ve already said that I’m disappointed that he didn’t go all the way, the claim that there isn’t a principled difference is ridiculous. Obama will glose Gitmo. He will move most of the prisoners out, and give many trials. How is that not a principled difference?
Closing Gitmo is an empty gesture unless you know what to do with detainees that are too dangerous to be set free, but who would be acquitted if tried in civilian courts. So where will they go? How will they be tried? Military tribunals? That sounds familiar (don’t even bother citing the cosmetic procedural changes of Obama’s “new and improved” military tribunals). And of course, there’s that pesky matter of Obama holding some detainees indefinitely without any trial. Obama is okay with preventive detention for the hard cases at Gitmo, just like Bush. If the number being held without trial is smaller than before, then that’s just a question of where one draws the line for the hard cases. In other words, there is no principled difference between Bush and Obama on preventive detention because they are both willing to sacrifice “human rights” for legal expediency. It’s just a matter of degree.
Clinton’s and Reagan’s under the traditional measure of counting the number of bills about which the president makes such statements. Only under the misleading – and novel – approach of counting the number of individual provisions referenced in a signing statement can Bush’s use of them be considered extensive relative to his predecessors.
Ah, I see, the way that makes your boy look good is the “traditional” way to count these things, while the way that actually measures their impact is novel and misleading.
Question: Which use of signing statements has more impact, all other things being equal, a bill with one provision or a bill with many provisions?
I think the answer it abundantly clear.
Other methodologies for counting include only counting signing statements that object to provisions in the bill. This is the methodology the congressional research office uses, so it is neither novel nor misleading. Under this method, Bush still uses signing statements significantly more often than his recent predecessors (I have no idea about frequency before Reagan).
he concept of the unitary executive, properly understood (i.e., that POTUS has broad authority to direct the exercise of discretion by officials in the executive branch because executive power is vested solely in the President under Article II), has been followed by every president since Washington, fervently defended by every president going back to at least Truman, and has specifically been done in signing statements since Reagan, so the vast majority of Bush’s pronouncements really aren’t all that controversial, at least not if you’re familiar with the relevant history.
What you claim is disingenuous at best. That there has existed a concept of the unitary executive since the founding of the country isn’t at issue. What is at issue is Bush’s interpretation of the strong unitary executive being more radical than any before him.
Just so we are clear, are you attempting to state that Bush’s use of the strong unitary executive theory is entirely consistent with previous administrations? I could bury you in literature stating otherwise, and we’re not talking stuff from the Huffington Post. So again, let’s just be clear, is this your assertion?
As for Obama, his signing statements have been no less “out of line with established views of the constitution” if you’re being honest with yourself. To take one example, Obama’s statement upon signing the appropriations bill rejected provisions barring the expenditure of money on UN peacekeeping missions where US troops are put under a foreign commander without the recommendation of his military advisers. As a constitutional matter, it’s well-accepted that Congress has the power to use appropriations to restrict “foreign entanglements” as a check on executive authority. So I don’t see how you could dismiss Obama’s statement as not being a “controversial interpretation of the constitution” without indulging in some pretty blatant rationalizing.
Obama’s use of presidential signing statements are in line with Bush’s?
“The prerogatives raised by Obama in yesterday’s signing statement were not particularly controversial, according to David M. Golove, a constitutional law scholar at New York University.”
http://www.acslaw.org/node/13025
Now lets consider Bush’s use of signing statements to eviscerate McCain’s anti-torture amendment. You think that was well grounded?
“But the President’s inherent authority in this area is only a default rule. The Constitution expressly grants to Congress the power to “make Rules concerning Captures on Land and Water.” A statute prohibiting torture and other forms of cruel, inhuman or degrading treatment of captives falls squarely within this language. The President’s claim to be able to override it as Commander in Chief thus directly contradicts the express and unequivocal terms of the Constitution.”
http://writ.news.findlaw.com/dorf/20060213.html
Closing Gitmo is an empty gesture unless you know what to do with detainees that are too dangerous to be set free, but who would be acquitted if tried in civilian courts. So where will they go? How will they be tried? Military tribunals? That sounds familiar (don’t even bother citing the cosmetic procedural changes of Obama’s “new and improved” military tribunals). And of course, there’s that pesky matter of Obama holding some detainees indefinitely without any trial. Obama is okay with preventive detention for the hard cases at Gitmo, just like Bush. If the number being held without trial is smaller than before, then that’s just a question of where one draws the line for the hard cases. In other words, there is no principled difference between Bush and Obama on preventive detention because they are both willing to sacrifice “human rights” for legal expediency. It’s just a matter of degree.
No, it’s not an empty gesture. New detainees are being mirandized, implying they’ll be given a trial. That’s a complete break. And of the people that may end up being held indefinitely, Obama has already said that congress will have input on this process. That’s completely different than Bush.
Ah, I see, the way that makes your boy look good is the “traditional” way to count these things, while the way that actually measures their impact is novel and misleading. Question: Which use of signing statements has more impact, all other things being equal, a bill with one provision or a bill with many provisions? I think the answer it abundantly clear.
Oh please. The abundantly clear answer to your question is neither. Signing statements have virtually no practical impact whatsoever. If a Bushie were ever hauled into court for torture, it will make absolutely no difference whatsoever that Bush issued a signing statement saying that McCain’s anti-torture amendment would be interpreted so as not to interfere with POTUS’ authority as commander-in-chief. Whether such a statement existed or not, a court would consider the constitutional argument and accept or reject it on the merits. So at bottom, the whole “OMG!!! BUSH IS DOING AN END-RUN AROUND THE CONSTITUTION WITH HIS SIGNING STATEMENTS!!!” controversy is just alarmism based on little more than misunderstanding and confusion.
Other methodologies for counting include only counting signing statements that object to provisions in the bill. This is the methodology the congressional research office uses, so it is neither novel nor misleading. Under this method, Bush still uses signing statements significantly more often than his recent predecessors (I have no idea about frequency before Reagan).
I really don’t want to belabor this minor point any more, but how many signing statements does CRS say that Bush issued in which he lodged a legal or constitutional objection to one or more provisions, and how does that number compare to Clinton, Bush 41 and Reagan? The numbers I found are as follows:
While Bush may have issued significantly more constitutional signing statements than Clinton or Reagan, he issued a mere 11 more than his father – hardly a significant increase, and not really an increase at all given that his father served only one term. You’re taking umbrage at the wrong Bush on this one.
That there has existed a concept of the unitary executive since the founding of the country isn’t at issue. What is at issue is Bush’s interpretation of the strong unitary executive being more radical than any before him. Just so we are clear, are you attempting to state that Bush’s use of the strong unitary executive theory is entirely consistent with previous administrations? I could bury you in literature stating otherwise, and we’re not talking stuff from the Huffington Post. So again, let’s just be clear, is this your assertion?
Yes, let’s. I’m not “attempting” to state that, I am stating that. That there might be a mountain of literature saying otherwise is hardly surprising and totally expected given the ideological bent of most legal academics, and means very little, particularly to the unconverted. Almost 1000 law professors argued vociferously that their First Amendment rights were violated by the Solomon Amendment, and they were sent packing by a unanimous SCOTUS, so what the legal intelligentsia thinks on an issue is not exactly dispositive. While the policy aims of past administrations differed from Bush’s, different legislation was involved under different circumstances, and prior presidents may not have specifically used the phrase “in a manner consistent with POTUS’ authority to supervise the unitary executive branch” in their signing statements, that fact of the matter is Bush’s interpretations share substantially the same legal and philosophical underpinnings of past presidents’ views of the unitary executive. The Bush administration used signing statements to advance its views about presidential power that were perfectly consistent with those of its predecessors, albeit necessarily applied in different contexts (e.g., interrogation, wiretapping, etc). It may have pressed those views farther in some respects, but Bush’s interpretations of the unitary executive were certainly no “radical” departure from his predecessors. IMO it is the context in which those interpretations arose, rather than the interpretation itself, which gave rise to the “controversy.”
Obama’s use of presidential signing statements are in line with Bush’s?
Of course they are, and merely citing a law prof from the American Constitution Society blog who says otherwise regarding the signing statement I referred to is a pretty lame response. If the opinions of academics mean so much to you, then I direct you to Jonathan Turley’s blog where he says that Obama’s statement ”has a true Bush-like quality as a signing statement”. Rather than hide behind a law prof, explain to me exactly how Obama’s view that he can ignore Congress’ power of the purse is not doing an “end-run around the Constitution.”
Now lets consider Bush’s use of signing statements to eviscerate McCain’s anti-torture amendment. You think that was well grounded?
Yes, because while the signing statement you’re referring to mentions the “unitary executive branch” in passing, it actually rests its claim of broad executive authority on the Commmander-in-Chief clause.
New detainees are being mirandized, implying they’ll be given a trial. That’s a complete break.
Right, except that the Obama administration has already said that even those who are tried can be kept imprisoned regardless of the verdict (i.e., in the event they miscalculate and the show trial ends up being an actual trial where they can’t guarantee a conviction). So your boy is all for due process, just so long as it produces the correct result!
And of the people that may end up being held indefinitely, Obama has already said that congress will have input on this process. That’s completely different than Bush.
Just so we’re clear, is it your assertion that holding detainees indefinitely without trial cannot be a violation of due process because Congress has “input” on the process? Seriously, I want you to explicitly own that statement.
Oh please. The abundantly clear answer to your question is neither. Signing statements have virtually no practical impact whatsoever. If a Bushie were ever hauled into court for torture, it will make absolutely no difference whatsoever that Bush issued a signing statement saying that McCain’s anti-torture amendment would be interpreted so as not to interfere with POTUS’ authority as commander-in-chief. Whether such a statement existed or not, a court would consider the constitutional argument and accept or reject it on the merits. So at bottom, the whole “OMG!!! BUSH IS DOING AN END-RUN AROUND THE CONSTITUTION WITH HIS SIGNING STATEMENTS!!!” controversy is just alarmism based on little more than misunderstanding and confusion.
Incorrect, for two reasons. First, without said challenges, agencies are obviously less likely to actually violate the law. So an increase in challenges increases the ways for the executive branch to violate congresses will (rightly or wrongly).
Secondly, Presidential signing statements *have* been considered in court cases, as Samuel Alito while serving at the OLC at the DOJ under Reagan argued they should be (and they were, at least twice as outlines in the CRS paper I’ll link to below, see the section on the Reagan administration use of them). Granted it does specifically point out that signing statements were not the primary basis for any decision, and it would be foolish to think they ever would be, it’s clear they still carry some weight. And based on Alito’s words while at the OLC, we know we have at least one justice that will continue to give them some weight.
While Bush may have issued significantly more constitutional signing statements than Clinton or Reagan, he issued a mere 11 more than his father – hardly a significant increase, and not really an increase at all given that his father served only one term. You’re taking umbrage at the wrong Bush on this one.
So you are defending your assertion that Bush was in line with previous usage by pointing out he wasn’t in line with Clinton or Reagan, but that his father beat him out? Classic.
The numbers you site are indeed the ones that the CRS report uses, and here is some other information from them:
But hey, they are using an unfair metric, clearly. You know, identifying the actual impact of the signing statements. Here’s a copy of the CRS report:
http://www.fas.org/sgp/crs/natsec/RL33667.pdf
That there might be a mountain of literature saying otherwise is hardly surprising and totally expected given the ideological bent of most legal academics, and means very little, particularly to the unconverted.
What they do say *does* matter because the assertion is that it’s okay to use signing statements when the portions of legislation being refuted violate clearly established constitutional norms. So the opinion of academics figures prominently into that.
It may have pressed those views farther in some respects, but Bush’s interpretations of the unitary executive were certainly no “radical” departure from his predecessors.
Again, I just don’t get the viewpoint. It’s possible that Yoo may be disbarred for architecting these positions. And when questions were raised within the DOJ about what was being done, Cheney suggested they just ignore the DOJ. So does this sound to you like they’re on firm ground here as far as their interpretation of the law? It doesn’t to me. You seem to be willfully ignorant of both the facts and the circumstances of this issue.
Finally, Bush’s views of executive power have been repudiated by the SCOTUS in several cases.
then I direct you to Jonathan Turley’s blog where he says that Obama’s statement ”has a true Bush-like quality as a signing statement”.
The link seems to be to the wrong article, I don’t see that quote in there (and the article is from 2008, before Obama was President). Could you link me to the right one?
Rather than hide behind a law prof, explain to me exactly how Obama’s view that he can ignore Congress’ power of the purse is not doing an “end-run around the Constitution.”
This isn’t hiding behind a law prof, the burden here is for me to establish his challenges were not out of line with established thought on the constitution, which I attempted to do. It, in fact, does not matter what I think about the merits of Obamas claims, nor what you think. If *most* people accept them, that means they were proper. Here’s another instance of a law professor stating these assertions were uncontroversial:
http://lawprofessors.typepad.com/conlaw/2009/03/obama-issues-si.html
Look, the fact of the matter is, nobody expects a President to be hemmed in in ways they see as inconsistent with the constitution. I got in pretty heated arguments with liberal friends who wanted to use the dictator card about Bush when I pointed out that he probably truly believed he was operating within the bounds of the constitution.
Yes, because while the signing statement you’re referring to mentions the “unitary executive branch” in passing, it actually rests its claim of broad executive authority on the Commmander-in-Chief clause.
You are just parsing words here. The view of a strong unitary executive and the vast wartime powers of a Commander in Chief go hand in hand.
Just so we’re clear, is it your assertion that holding detainees indefinitely without trial cannot be a violation of due process because Congress has “input” on the process? Seriously, I want you to explicitly own that statement
No, that’s not my assertion. It’s my assertion that that is obviously different than Bush’s attitude about detainment.
Granted it does specifically point out that signing statements were not the primary basis for any decision, and it would be foolish to think they ever would be, it’s clear they still carry some weight.
You’re hoping to steal a base here. Whatever significance that attaches to the fact that signing statements were merely referenced in passing in an opinion is de minimis. Based on the paper you linked to and the cases discussed therein it doesn’t appear that they were given any real weight. They weren’t the primary basis, the secondary basis, or any basis for either decision.
So you are defending your assertion that Bush was in line with previous usage by pointing out he wasn’t in line with Clinton or Reagan, but that his father beat him out? Classic.
I don’t know what that is supposed to mean, but I take it as an admission that Bush did not use signing statements significantly more often than all of his recent predecessors.
But hey, they are using an unfair metric, clearly.
I never said that the CRS uses an unfair metric. I said that counting each specific objection as a separate signing statement is misleading. While the paper you linked to notes that Bush’s signing statements containing 1000+ legal challenges, the CRS does not count each of those challenges in its tally.
Again, I just don’t get the viewpoint. It’s possible that Yoo may be disbarred for architecting these positions. And when questions were raised within the DOJ about what was being done, Cheney suggested they just ignore the DOJ. So does this sound to you like they’re on firm ground here as far as their interpretation of the law? It doesn’t to me. You seem to be willfully ignorant of both the facts and the circumstances of this issue.
Incomprehension on your part certainly does not imply ignorance on my part. To the extent Yoo is facing disbarment, it’s more because of the legal positions contained in the now-famous “torture memos” than any theory on the unitary executive. And while I suppose anything is possible these days, the chances that Yoo will be disbarred are rather slim given that Obama’s DOJ made the same exact legal argument in the Demjanjuk case that Yoo offered in those memos. So if Obama’s DOJ is offering the same analysis, then good luck arguing that no competent, ethical lawyer could possibly consider that analysis to be sound.
The link seems to be to the wrong article, I don’t see that quote in there (and the article is from 2008, before Obama was President). Could you link me to the right one?
http://jonathanturley.org/2009/03/12/obama-issues-signing-statement-only-days-after-negating-such-bush-statements/
You are just parsing words here. The view of a strong unitary executive and the vast wartime powers of a Commander in Chief go hand in hand.
I’m not parsing anything. The doctrine of the unitary executive and the Commander-in-Chief clause of the Constitution, while they may overlap, represent distinct concepts.
It’s my assertion that [holding detainees indefinitely with some input from Congress] is obviously different than Bush’s attitude about detainment.
From a due process perspective that is just a distinction without a difference because, like I said, Obama is willing to sacrifice “human rights” on the alter of legal expediency and nat’l security, just like Bush. There is no principled difference between the two.
You’re hoping to steal a base here. Whatever significance that attaches to the fact that signing statements were merely referenced in passing in an opinion is de minimis. Based on the paper you linked to and the cases discussed therein it doesn’t appear that they were given any real weight. They weren’t the primary basis, the secondary basis, or any basis for either decision.
That’s not stealing a base at all. Not only have they been used in arguments before, albeit with minimal importance, but you have a sitting Supreme Court Justice who argued that signing statements should be part of the interpretation of legislation. So even if we assume that everyone else on the court lends no credence to them, we know that one Justice does.
Besides, as I said, that’s not the most important reason that the number of challenges matters. The reason the number of challenges matters is that every single challenge (not every signing statement, but every single challenge) represents an opportunity for an organization within the executive branch to do something and then point to the challenge as their marching orders.
And finally, here’s something I had never even considered arguing, but I came across today that is entirely true:
“Congress and the public are offered no clear understanding of the legal theory of unconstitutionality, or of precisely which statutory provisions will not be enforced, under what circumstances, and why. The statements are, instead, mere placeholders, with respect to a vast number of statutory provisions, signaling that the Administration reserves the right not to enforce numerous unspecified provisions.”
http://gulcfac.typepad.com/georgetown_university_law/2006/07/thanks_to_the_p.html
While Obama’s signing statements have not been legal volumes, they at least make reference to the specific portions of the constitution they feel the provision in question violates, and what about the provision is the issue. That’s just not the case under Bush.
I don’t know what that is supposed to mean, but I take it as an admission that Bush did not use signing statements significantly more often than all of his recent predecessors.
Wow. “Than all.” Nice caveat there.
I never said that the CRS uses an unfair metric. I said that counting each specific objection as a separate signing statement is misleading. While the paper you linked to notes that Bush’s signing statements containing 1000+ legal challenges, the CRS does not count each of those challenges in its tally.
They didn’t have a “tally,” they discussed the number of signing statements from several perspectives. The most amusing thing is, they list the 1000+ number specifically because they see it as “more significant.”
It’s ridiculous to argue otherwise. A signing statement that challenges only one provision is not the same as one that challenges 100 if we are attempting to quantify use of the technique.
’m not parsing anything. The doctrine of the unitary executive and the Commander-in-Chief clause of the Constitution, while they may overlap, represent distinct concepts.
Here, so that you can stop parsing words here and above, I’ll replace unitary executive with what it was obviously meant to include, which is all the ridiculous crackpot shit that the Bush administration came up with in regards to the legality of their power grabs, noting that that includes their penchant for an interpretation of the constitution consistent with the strong unitary view of executive power, which is not a commonly accepted viewpoint.
re: Jonathan Turley
I’m curious if he’s read the signing statement. Even a relatively weak view of unitary executive power would not posit that the President’s decisions should be beholden to the opinions of his advisers. Have you read it? Do you think that the President should need the consent of his advisors to make military decisions? I don’t think that’s all that controversial, really. I think perhaps Turley needs to read the text he disagrees with:
“SEC. 7050. None of the funds made available under title I of this Act may be used for any United Nations undertaking when it is made known to the Federal official having authority to obligate or expend such funds that: (1) the United Nations undertaking is a peacekeeping mission; (2) such undertaking will involve United States Armed Forces under the command or operational control of a foreign national; and (3) the President’s military advisors have not submitted to the President a recommendation that such involvement is in the national interests of the United States and the President has not submitted to the Congress such a recommendation.”
and Obama’s criticism:
“This provision raises constitutional concerns by
constraining my choice of particular persons to perform
specific command functions in military missions, by
conditioning the exercise of my authority as Commander
in Chief on the recommendations of subordinates within
the military chain of command, and by constraining my
diplomatic negotiating authority.”
I don’t disagree with that assessment, do you?
From a due process perspective that is just a distinction without a difference because, like I said, Obama is willing to sacrifice “human rights” on the alter of legal expediency and nat’l security, just like Bush. There is no principled difference between the two.
No, it’s a distinction with a difference, that’s why it’s a distinction. If you mean rather that it’s a distinction in process without necessarily a distinction in outcomes, you’d also be wrong. Outcomes are different if Congress as input.
“Congressional Democrats warned President Barack Obama on Tuesday that he sounded too much like George W. Bush when he declared this summer that the White House can ignore legislation he thinks oversteps the Constitution”
http://www.breitbart.com/article.php?id=D99IVL480&show_article=1
Not only have they been used in arguments before, albeit with minimal importance, but you have a sitting Supreme Court Justice who argued that signing statements should be part of the interpretation of legislation. So even if we assume that everyone else on the court lends no credence to them, we know that one Justice does.
Even if Alito believes that signing statements should be relied on for statutory interpretation (assuming he was arguing “should” instead of “could” back in his OLC days – I’m not really up on all the relevant details of his draft memos), if he were to give them any weight in his opinions in the future then he would be doing so without any precedent I’m aware of to support the proposition that signing statements should be relied on, including Chadha or Bowsher. Attorney argument has no precedential value. Maybe we’re entering the Alito Era of jurisprudence where signing statements will henceforth be on a par with legislative history, but color me skeptical. It’s far more likely that courts will continue to make their own assessment of the president’s constitutional arguments and not defer to his views on constitutional interpretation, least of all those contained in a signing statement, which will continue to have no practical impact.
The reason the number of challenges matters is that every single challenge (not every signing statement, but every single challenge) represents an opportunity for an organization within the executive branch to do something and then point to the challenge as their marching orders.
The executive branch hardly needs a signing statement for that. POTUS can obviously give priority to some statutes over others, allocate resources, and order organizations within the executive branch to enforce laws according to his interpretations of them without a signing statement. He could just draft a memo to subordinates without making anything public. And if his subordinates fail to enforce the law properly, whether that failure was the result of a signing statement or some other “marching order” or document is completely irrelevant. In fact, I’d wager that the chances that administration officials are ever called to task in court or by Congress for failing to enforce a law properly due to the president’s suspect interpretation in a signing statement where they wouldn’t have been called to task without such a signing statement are pretty much nil, so the rationale that subordinates would have the opportunity to point to the signing statement as their marching orders isn’t really a serious concern.
Wow. “Than all.” Nice caveat there.
Your words were “Bush still uses signing statements significantly more often than his recent predecessors” so that is what I was responding to. I assumed you were saying that Bush used signing statements significantly more often than all his recent predecessors, in which case my “caveat” is perfectly appropriate to refute your point, and your amazement is misplaced. If, on the other hand, you actually meant to say only that Bush used signing statements significantly more often than some of his recent predecessors (which I doubt anyone reading your statement would’ve taken as your meaning), then I misunderstood you and it looks like we are in agreement.
They didn’t have a “tally,” they discussed the number of signing statements from several perspectives.
Now who is parsing words. Look, I obviously get that Bush was more specific in identifying the provisions of bills he was objecting to than were his predecessors. But the signing statements of past presidents are replete with un-enumerated references to “several provisions” or “a number of provisions” or “these provisions” or “other provisions” of this or that bill that raised constitutional concerns. If the concern is really about presidents reserving for themselves “the right not to enforce numerous unspecified provisions” of a bill, then why were such concerns never raised before? Putting aside the substance of the objections and looking at them purely quantitatively, it would seem to me that one should welcome statements that specifically identify the provisions at issue if the concern really is about providing the public with information about a president’s views of a statute.
Here, so that you can stop parsing words here and above, I’ll replace unitary executive with what it was obviously meant to include, which is all the ridiculous crackpot shit that the Bush administration came up with in regards to the legality of their power grabs
You’re not doing it on my account because, as I said, I’m not parsing anything. But I applaud the honesty about what you think “unitary executive” really means.
re: Jonathan Turley
I’ll go out on a limb and say that he’s read the text. I don’t necessarily disagree with the view that POTUS shouldn’t need the consent of his advisors to make military decisions, but that’s not what troubled Turley. The issue that is necessarily implicated by Obama’s signing statement is whether his claim of authority under the Commander-in-Chief clause gives him the constitutional authority to override Congress if and when it withdraws funding. Turley sees a clear parallel with similar signing statements made by Bush, and rightly so.
No, it’s a distinction with a difference, that’s why it’s a distinction. If you mean rather that it’s a distinction in process without necessarily a distinction in outcomes, you’d also be wrong. Outcomes are different if Congress [h]as input.
That is just absurd. Preventive detention is preventive detention. Dressing it up with congressional “input” doesn’t change the fact that Obama is okay with the principle of indefinite detention without trial, just like Bush. Actually, Obama is taking it a step further because I don’t recall the Bush administration every actually saying it could choose to keep detainees behind bars indefinitely even after they were acquitted, which Obama’s lawyers have said they could. Even Obamaphiles like <a href=”http://www.salon.com/opinion/greenwald/2009/07/08/obama/”Glenn Greenwald see what this means:
I should add that I’m perfectly happy with Obama mimicking Bush when it comes to detainment of terrorists because (1) I think the Bush administration had it right, and (2) we’ll be much closer to a national consensus, even if the Bush haters/Obama supporters can’t bring themselves to admit it.
I find myself repeatedly agreeing with Joe Mama on this thread. I find this fact deeply disconcerting.
LOL