about Bush pissing on the Constitution like a dog marking its territory, and perhaps the terrifying
in today's Boston Globe that provoked it.
In an earlier diary on this topic, I commented, "Where are the lawyers on this?" After all, we are "officers of the court" and defenders of law and order. Our life and livelihood is in the legal system that this President is unilaterally gutting. What role will there be for us in Bush's Orwellian dictatorship? If lawyers are as money-grubbing as we're made out to be, you'd think we would be worried about this!
As a law student at a "top law school," I am frankly outraged that none of my professors, legal superstars though they are, have publicly spoken out against this. So I wrote the following op-ed, which my school newspaper may or may not publish. Regardless, I thought it would be appropriate to share here.
(P.S.: a few specific details have been thinly disguised to half-assedly protect my identity.)
(P.P.S.: I've just been notified by a friend of mine, to whom I forwarded this editorial, that he is forwarding it to the infamous Jeff Gannon, who is apparently an acquaintance of his! No, not like that. ;-) )
For the past three years, I have had the privilege of being taught by the greatest luminaries in legal academia. I would have felt just months ago that it would be an act of supreme arrogance for a mere third-year law student to openly criticize my professors. Yet I now find myself doing exactly that. I am saddened, bewildered, and even outraged that the [school name] professoriate remains largely silent in the face of the most blatant constitutional abuses in modern history. The professors of [school name] do the country, the legal profession, and the constitutional order itself a disservice by not speaking out and taking action.
Today, in an article by Charlie Savage in the Boston Globe, we read that "President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution." Savage continues, "[l]egal scholars say the scope and aggression of Bush's assertions that he can bypass laws represent a concerted effort to expand his power at the expense of Congress, upsetting the balance between the branches of government . . . . Far more than any predecessor, Bush has been aggressive about declaring his right to ignore vast swaths of laws . . . ." The Globe quotes Portland State University law professor Phillip Cooper, who says, "There is no question that this administration has been involved in a very carefully thought-out, systematic process of expanding presidential power at the expense of the other branches of government . . . . This is really big, very expansive, and very significant."
We read that Bush, in his first five years of office, has unilaterally declared that he will ignore, at least in part, no fewer than 750 laws duly passed by Congress. These are bills which he himself signed into law, but not without adding a "signing statement" -- effectively a Presidential re-write of the law by fiat, with no basis in the constitutional system. Rather than veto bills with which he disagrees and risk an override -- Bush is the first president since Thomas Jefferson to serve five years in office without vetoing a single bill -- he simply signs them into law with his fingers crossed behind his back, stating that he does not intend to obey them. He has unconstitutionally declared his intent to ignore laws against torture, laws requiring Congressional oversight of the invasive powers granted to him under the Patriot Act, laws granting protection to government whistleblowers, and laws forbidding U.S. participation in armed conflict in Colombia. He has declared that as Commander-in-Chief, he has the unilateral authority to ignore any law passed by Congress regulating the military.
According to NYU Law professor David Golove, "Bush has cast a cloud over 'the whole idea that there is a rule of law,'" and he "threatens to ''overturn the existing structures of constitutional law[,]'" making the Constitution, in effect, simply "disappear." While Bush is not the first president to issue such "signing statements," he is doing so, says the Globe, "to a degree that is unprecedented in US history." Bruce Fein, a deputy attorney general under no less a conservative than President Reagan, says that "the American system of government relies upon the leaders of each branch 'to exercise some self-restraint.' But Bush has declared himself the sole judge of his own powers . . . and then ruled for himself every time."
And what does the august institution of [school name] have to contribute to this public debate? [school name] professor Jack Goldsmith, who formerly headed up the Justice Department's Office of Legal Counsel for the Bush administration, defends this practice. According to the Globe, "[Goldsmith] said the statements do not change the law; they just let people know how the president is interpreting it." According to Goldsmith, "Nobody reads them . . . . They have no significance . . . . The statements merely serve as public notice about how the
administration is interpreting the law." (Interpreting, ignoring, flagrantly and willfully disobeying -- who's counting?) Goldsmith continues, "[c]riticism of this practice is surprising, since the usual complaint is that the administration is too secretive in its legal interpretations."
This is wholly disingenuous. The non-secretive route would be for Bush, like every president before him, to veto a bill with which he disagrees, rather than engage in the practice of issuing "signing statements" under the radar. According to Miami University of Ohio professor Christopher Kelley, "[Bush] agrees to a compromise with members of Congress, and all of them are there for a public bill-signing ceremony, but then he takes back those compromises -- and more often than not, without the Congress or the press or the public knowing what has happened." But in Professor Goldsmith's opinion, we should be grateful that the President vouchsafes us even the courtesy of a quiet "signing statement" letting us know that he intends to ignore or disobey the bills he signs into law.
Don't be fooled into thinking President Bush is doing this for the public's sake: Professor Cooper of Portland State points out that "the documents are being read closely by one key group of people: the bureaucrats who are charged with implementing new laws. Lower-level officials will follow the president's instructions even when his understanding of a law conflicts with the clear intent of Congress, crafting policies that may endure long after Bush leaves office." Moreover, these "signing statements" are no doubt intended to influence the judiciary, years down the line, in interpreting ambiguous provisions in the congressionally enacted text. Courts often closely scrutinze the legislative history (floor debates, committee reports, etc.) for evidence of how Congress intended an ambiguous word or phrase. These "signing statements" are meant either to throw future courts off the scent, or to give conservative judges a hook on which to hang their "activist" interpretations of the law -- interpretations with no basis in the law's text or in the actual legislative history. But Professor Goldsmith would have us thank Bush for these "signing statements," as if they were genuine, good-faith attempts at open government.
The Globe's article quotes professors at numerous institutions speaking out in grave tones about the threat posed by Bush's unilateral evisceration of the Constitution's legislative process, but Goldsmith's apologia for this practice is the only [school name] voice we hear. Where is the rest of the [school name] faculty? Where is the outrage? This administration is doing its best to undo nearly 220 years of our constitutional order, and yet the faculty of this school makes its disapproval known, if at all, in the pages of esoteric law reviews read mainly by other professors. Perhaps this deafening public silence is due to legal academia's aversion to entering the political fray, lest the profession open itself up to discredit by allegations of petty partisanship. But this is not about Democrats and Republicans. It is about a constitutional crisis. It is about the survival of checks and balances, of the integrity of the legislative process, of our very constitutional order. What good will it do the legal academic profession to eschew controversy, preempt allegations of partisanship, and avoid sullying its hands in the muck of real-world political realities, if doing so requires standing by while the very notion of the rule of law, and hence the need for the legal profession itself, is dismantled piece by piece before our eyes? At what price does [school name] maintain its rarefied air of neutrality and objectivity?
Over two thousand years ago, the great Roman lawyer and orator Cicero denounced a constitutional subversive named Catiline on the floor of the Senate, famously saying: "Shame on the age and on its principles! The senate is aware of these things; the consul sees them . . . And we, gallant men that we are, think that we are doing our duty to the republic if we but keep out of the way of his frenzied attacks." Would that some principled lawyer take the Senate floor today and say the very same thing! The professors at [school name] are the brightest stars in the legal firmament, possessed of the institutional authority of [one of America's greatest law schools]. They are in a unique position to speak out against these abuses of our Constitution. Yet by and large, they do not do so publicly or vociferously. This campus should be in a furor -- after all, if it is not enough that our Constitution is under attack, our profession is being rendered moot, and our storied institutiton with it.
While it may be presumptuous for a naive young student such as myself to attempt to admonish my elders and unquestioned intellectual superiors in such a manner, my conscience will not allow me to keep silent. It is past time for [school name] to speak out widely, urgently, and proactively in defense of our constitutional order, lest our grand experiment in democratic republicanism go the way of Rome before it. To paraphrase Cicero, "the wisdom of the republic is not at fault, nor the dignity of this institution. We, we alone--I say it openly,--we, the lawyers, are wanting in our duty."
--[Mr. Futomaki]