Legal Eagles Prepare To Battle
Over Right To Democracies Skies

By William Finucane

America’s top lawyers have decided to weigh in on the use of the so-called "signing statements" by President George W. Bush, through which Mr. Bush has served notice that he will not follow a wide variety of laws that Congress has passed. George Bush has signed these laws as president, thereby making them effective for other Americans, but has attached ‘signing statements’ indicating that as president, the given laws won’t affect him in his actions.

Is it legal?

The law community will now apparently try to judge "signing statements."

In doing so, these law experts may throw a gauntlet down, and if they do they will be telling the president he is perverting the Constitution. Bush is using "signing statements" to make the sort of changes and exclusions to legislation that serve his interests, without debate or input from the legislature. Now, when he signs a law to make it official, he regularly disqualifies parts of the law he dislikes and indicates they won’t apply to him and his actions.

Of course he could very well use a veto, but Mr. Bush doesn’t seem to mind seeing legislation passed that he doesn’t particularly like, so long as it affects other Americans and not him. If he used his veto authority, he might lose a veto fight, but the Congress would have to oppose him by a two-thirds majority to make the law stand, and since the Congress is dominated by his own party, that seems unlikely.

Bush has vetoed no bills, not a single one. Bush has used the "signing statement" 750 times. That outstrips all the other presidents combined.

There is precedent for signing statements, but it was nothing like what Mr. Bush has turned it into; he uses "signing statements" to change a whole body of law. And he reveals his contempt for Congress and its lawmaking duties; the Congress has no say on "signing statements," which were originally intended to allow a given president a chance to point to elements in new legislation that he thought were unconstitutional or that infringed on the separation of powers, and by so doing warn the judicial branch that the new legislation might have internal problems that would need to be reviewed.

But that isn’t how George Bush uses the "signing statements." Bush has attached his "signing statements" to laws like the ban on torturing detainees, oversight provisions in the USA Patriot Act, and ``whistle-blower" protections for federal employees.

Seven hundred and fifty times he has changed what the Congress sweated to produce, with all the amendments that made it acceptable to various public representatives. Poof, it becomes another law altogether. Many scholars believe in the occasional "signing statement" when national interest dictate it. But few legal experts agree that the president can set himself above Congress in this manner.

So the nation’s top lawyers and legal experts will sit, exchange views and come up with a collective viewpoint in August. Beware August; it may be the time that the line gets drawn between America’s legal eagles who remain committed to democracy and the Bush legal eagles, such as U.S. Attorney General Alberto Gonzalez, who seem to be so able and willing to bend their minds and their legal concepts to meet W’s will.

Conducting this study is the American Bar Association; it appointed a committee for the task. In the American legal world, this is as legitimate an organization as one will find. ABA president, Michael Greco wanted the committee formed because he believes the scope and aggressiveness of Bush's signing statements may raise serious constitutional concerns. They most certainly do.

With more than 400,000 members, the lawyer’s group has a duty to speak out to the public, the courts, and Congress. This may amount to a frontal assault on Bush and his tactics, and on the people in government who are making every law metamorphosis into the Bush Constitution, not the American Constitution.

If no one challenged Bush law, it would gradually strangle freedom in this nation. It seems increasingly clear that Bush is himself a much greater threat to American liberty than are all the terrorists in the world combined. Terrorists at least openly claim to want to ruin American lives; Bush seems to be working at it while saying he is doing just the opposite, or denying that he is doing anything contrary to long-standing American principles and values.

But now America can no longer claim that it does not attack first. Nor can America stand on the world stage and declare its humanitarian values preclude any deviation from the Geneva Convention. No longer can America claim to lead the world in environmental concerns, let alone protection; in fact, Mr. Bush and his administration declare there is no such thing as ‘global warming.’

The fingerprints of Bush now show everywhere.

Take the just-failed attempt to seek an amendment to the United States Constitution banning gay marriage. That effort at creating such an amendment was not a liberating move, it would serve to strip away a right. Bush didn’t care because he was trying to curry favor with fundamentalist and other groups whose idea of fixing the Constitution is to make it exclusive, reflecting only their narrow view of humanity and political concerns. But the Constitution is not exclusive, not at all.

One of the most important facets of America’s Constitution is that is does not hurt any minorities, be they black, red, yellow, blind or gay or otherwise. It exists to protect these people and everyone else. Otherwise it would be just pretty words without meaning.

But Mr. Bush wanted to amend the Constitution to make gays less than full citizens. This is simply how Bush interprets the laws of this land – they will be what he wants them to be or he will simply change them. Quite literally, he holds himself above the law.

``The American Bar Association feels a very serious obligation to ensure that when there are legal issues that affect the American people, the ABA adopts a policy regarding such issues and then speaks out about it," Greco recently said. ``In this instance, the president's practice of attaching signing statements to laws squarely presents a constitutional issue about the separation of powers among the three branches."

These lawyers, therefore, plan to take a position.

If Bush ignores them, the countries democratic skies will be darkened and split asunder, but of course the storm clouds have already gathered. It remains to be seen whether the legal eagles of democracy will be able to take flight effectively against the legal eagles of Bush doctrine, who are currently protecting the encroaching darkness.

In a June 4, 2006, article in the Boston Globe by Charlie Savage, the ABA members are indentified. They are quite a group.

"Signing statements" task force members include Greco, Mickey Edwards, a former Oklahoma representative from 1977 to 1993; Bruce Fein , a Justice Department official under President Reagan; William Sessions , a retired federal judge who was the director of the FBI under both Reagan and President George H.W. Bush; Patricia Wald, a retired chief judge of the US Court of Appeals for the District of Columbia, appointed by President Carter; Harold Koh , dean of Yale Law School and a former official in the Reagan and Clinton administrations; Kathleen Sullivan , former dean of Stanford Law School; Charles Ogletree , a Harvard law professor; Stephen Saltzburg , a professor at George Washington University Law School; Mark Agrast , a former legislative counsel for Representative William D. Delahunt , Democrat of Quincy; and Thomas Susman, who worked in the Justice Department's Office of Legal Counsel under both Presidents Johnson and Nixon , and was later counsel to the Senate Judiciary Committee.

Come August, they will render their verdict.