Is it possible to sink even lower?

Remember this?

Bush, December 28, 2007:

I am withholding my approval of H.R. 1585, the "National Defense Authorization Act for Fiscal Year 2008," because it would imperil billions  of dollars of Iraqi assets at a crucial juncture in that nation's reconstruction efforts and because it would undermine the foreign policy and commercial interests of the United States.

This was the bill that Bush claimed he was pocket vetoing, but really couldn't, because Congress was still in session.

But the important thing to remember is that he was vetoing a bill that:

1. contained a pay raise for the troops, and ;
2. enabled American veterans of the first Gulf War who actually won court judgments against the Iraqi government for having been captured and tortured by the Saddam Hussein regime to recover against frozen Iraqi assets in this country.

Bush was willing to endure the horrible optics of both of those things (as though the Vestigial Media could ever be counted on to actually notice and present those optics) in order to protect those Iraqi assets he considered so critical to that country's "reconstruction." Well, that and the fact that it would have put his "administration" in the position of having to admit that people were entitled to compensation for being tortured.

Fast forward to today:

The US is holding hostage some $50bn (£25bn) of Iraq's money in the Federal Reserve Bank of New York to pressure the Iraqi government into signing an agreement seen by many Iraqis as prolonging the US occupation indefinitely, according to information leaked to The Independent.

US negotiators are using the existence of $20bn in outstanding court judgments against Iraq in the US, to pressure their Iraqi counterparts into accepting the terms of the military deal, details of which were reported for the first time in this newspaper yesterday.

Iraq's foreign reserves are currently protected by a presidential order giving them immunity from judicial attachment but the US side in the talks has suggested that if the UN mandate, under which the money is held, lapses and is not replaced by the new agreement, then Iraq's funds would lose this immunity.

Yep. The same money that was so critical to long term Iraqi and regional stability one Friedman Unit ago that it couldn't even be used to compensate American soldiers who had been tortured by Saddam Hussein. Same money, now being held hostage by Bush to force the Iraqis to accept a perpetual American military presence in their country, all arranged without Senate approval by calling this treaty by another name: a "Status of Forces Agreement."

And what an "agreement," at that!

When I read Patrick Cockburn's article yesterday about the "secret" agreement for the US military to remain in Iraq indefinitely I thought he was a little bit behind the story.  The only place where the discovery that the US wanted permanent basing rights and air superiority and immunity from prosecution for their personnel was HERE, where we've all been dazzled by the election.  The Iraqis have been fighting this agreement and making direct signals of moving away from it, calling for a national referendum on any agreement and demanding national sovereignty within it.

Now, the follow-up article shows what may be the Cheney Administration's strategy to get the Iraqis to sign it:

The US is holding hostage some $50bn (£25bn) of Iraq's money in the Federal Reserve Bank of New York to pressure the Iraqi government into signing an agreement seen by many Iraqis as prolonging the US occupation indefinitely, according to information leaked to The Independent.

Remember that crazy "pocket veto" Bush claimed to have exercised on H.R. 1585, the National Defense Authorization Act?

Remember how it couldn't really be a pocket veto, because the Congress wasn't adjourned, according to the legal precedents, in a way that made a regular veto impossible? And how it wasn't really a regular return veto either, because he never really said straight up what he was actually doing, but instead mumbled some words about there being "no doubt" it was being vetoed, though he wouldn't just say, "I'm vetoing this?"

Well, the House has decided what to do about that. It's decided to just treat it like a regular veto. In a motion agreed to by a voice vote on Tuesday, the House referred the bill back to the Armed Services Committee for reconsideration, opting not to attempt an override vote once Republicans made it clear they would oppose it.

The Armed Services Committee in turn reported back a new bill (H.R. 4986) that's basically identical to the vetoed one (H.R. 1585), except for the provision Bush said he was basing his "veto" on. That provision came back with a little addition tacked on:

(1) APPLICABILITY- The President may waive any provision of this section with respect to Iraq, insofar as that provision may, in the President's determination, affect Iraq or any agency or instrumentality thereof, if the President determines that--

(A) the waiver is in the national security interest of the United States;

(B) the waiver will promote the reconstruction of, the consolidation of democracy in, and the relations of the United States with, Iraq; and

(C) Iraq continues to be a reliable ally of the United States and partner in combating acts of international terrorism.

So, I'm guessing he's gonna waive that. Just a hunch.

Anyway, H.R. 4986 came back to the House floor on Wednesday, where it passed under suspension of the rules (definition), a procedure used mostly for non-controversial bills and requiring a 2/3 majority to pass. The vote was 369-46. The bill now goes to the Senate, which is expected to take it up shortly after they return to regular business next week.

So in practical terms, the "crisis" is averted, and the House leadership feels that by referring the bill to the Armed Services Committee, they've made a procedural statement rejecting the purported use of the pocket veto. Why would the referral itself reject the pocket veto claim? Because in a real pocket veto, the bill isn't returned to the Congress, so it can't be referred to any committee, and it can't be overridden. So the mere act of taking receipt of the papers, and moving them from one room to  another is taken as a sign that a pocket veto has been ruled out by definition.

On the other hand, by declining to hold an override vote and instead reporting out a new bill with a new number, the effect is indistinguishable from that of a pocket veto, which would require that a new bill with a new number be taken up by the Congress, and that's what happened here. The only difference was that the House claimed to be referring the dead bill and then creating the new one, instead of just going straight to creating a new one.

The referral is a small point, but it could be considered an important one, at least symbolically. That's what they're hoping for, anyway. And in the meantime, the official records will record the "veto" as a regular one.

So why continue to use the quotes around the word "veto?" Well, let me show you a memo I found reprinted in the Congressional Record... for January 25, 1990.

Under the terms of a unanimous consent agreement, the Senate will proceed tomorrow to 'the veto message' on H.R. 2712, the Emergency Chinese Immigration Relief Act of 1989. This afternoon, by a vote of 390-to-25, the House of Representatives 'overrode' 'the veto.' However, the House may have taken an unnecessary and ultimately futile act--it may have acted on a bill that has already become law.

THE PRESIDENT'S DISAPPROVAL

The bill H.R. 2712 was passed by both the House of Representatives and the Senate last fall. It was presented to the President on November 21, 1989. On November 30, the President issued a 'Memorandum of Disapproval' with respect to H.R. 2712 and delivered both the memorandum and the enrolled bill to the Clerk of the House. The great portion of the President's memorandum dealt with the merits of the bill, but the last paragraph, which is quoted here, explained the President's method of disapproval:

'The adjournment of the Congress has prevented my return of H.R. 2712 within the meaning of Article I, section 7, clause 2 of the Constitution. Accordingly, my withholding of approval from the bill precludes its becoming law. Pocket Veto Case, 279 U.S. 655 (1929). Because of the questions raised in opinions issued by the United States District Court of Appeals for the District of Columbia Circuit, I am sending H.R. 2712 with my objections to the Clerk of the House of Representatives.' 135 Cong. Rec. H 4 (daily ed. Jan. 23, 1990) ('Memorandum of Disapproval from the President of the United States').

Sound familiar? Here's the current President Bush's "Memorandum of Disapproval" for H.R. 1585:

The adjournment of the Congress has prevented my return of H.R. 1585 within the meaning of Article I, section 7, clause 2 of the Constitution. Accordingly, my withholding of approval from the bill precludes its becoming law. The Pocket Veto Case, 279 U.S. 655 (1929). In addition to withholding my signature and thereby invoking my constitutional power to "pocket veto" bills during an adjournment of the Congress, I am also sending H.R. 1585 to the Clerk of the House of Representatives....

Now, there's more to W.'s message, and it's possibly an important difference:

... along with this memorandum setting forth my objections, to avoid unnecessary litigation about the non-enactment of the bill that results from my withholding approval and to leave no doubt that the bill is being vetoed.

Does this leave no doubt that the bill is being vetoed? "I am vetoing this bill" leaves no doubt that the bill is being vetoed. It's what he writes every other time he vetoes bills, so we know he knows how to move the crayon just so. But he doesn't do it here. He doesn't pocket it, and he doesn't send a regular veto message, either. But yet he claims to have done both.

But back to that old memo. What was the point of that?

The President was attempting a 'pocket veto,' but he may not have succeeded. Note that although he sent the papers to the Clerk of the House the President denies that he was 'returning' the bill within the meaning of Article I of the Constitution. He was, he holds, merely corresponding with the Clerk of the House and not (in constitutionally efficacious terms) returning a bill, with his objections to that House [in] which it originated.'

THE CONSTITUTION

The relevant constitutional text is as follows:

'Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.' U.S. Const., Art. I, sec. 7, cl. 2.

Therefore the Constitution provides four options for a bill that has passed both houses and been presented to the President: One, the President may sign it and then it becomes a law. Two, he may veto it and send it back to the originating house (together with his objections); Congress may then vote to override the veto. Three, he may do nothing in which case the bill becomes law automatically unless, four, 'the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law' and no override is possible.

The President thought he had chosen option four. The House has decided that the President actually exercised option two. (See, the reply of the Speaker to the Parliamentary inquiry by Mr. Michel, 136 Cong. Rec. H 5 (daily ed. Jan. 23, 1990). Tomorrow the Senate is expected to formally agree with the House. (Whether a Senator votes to override or sustain the 'veto' he will be agreeing sub silentio that the Senate has before it a genuine presidential veto.) However, the President may have exercised neither option for nor option two but option three: H.R. 2712 may have become a law automatically because (1) the President neither signed it nor vetoed it, (2) ten days (excluding Sundays) have passed since the act was presented to the President, and (3) at no time since November 21, 1989 has the Congress adjourned so as to prevent the bill's return.

INTERSESSION ADJOURNMENT

Both the House and Senate have provided a method for receiving messages during recesses and adjournment.

'Rule III.5 of the House provides that '[t]he Clerk is authorized to receive messages from the President and from the Senate at any time that the House is not in session.' At the beginning of this Congress, the Senate by unanimous consent provided 'that for the duration of the 101st Congress, when the Senate is in recess or adjournment, the Secretary of the Senate be authorized to receive message [sic] from the President of the United States.' 135 Cong. Rec. S 16677 (daily ed. Nov. 21, 1989) (remarks of Sen. Mitchell).

Section 4 of the adjournment resolution (H. Con. Res. 239, adopted November 22, 1989) reiterated that officers of the House and the Senate would continue to receive messages from the President during the adjournment period. The President received a certified copy of that adjournment resolution.

It is true, of course, that Congress adjourned last November and only recently returned but that is not the constitutional standard. The Constitution may be read to allow a pocket veto if and only if the adjournment is of a type that prevents a bill's return, and the recent intersession adjournment was not of that type because the Clerk of the House and the Secretary of the Senate were authorized to receive 'returns' during the period of adjournment.

CASE PRECEDENT

The leading Supreme Court cases are ambiguous and confusing. The Pocket Veto Case, 279 U.S. 655 (1929) greatly strengthens the President's position. Wright v. United States, 302 U.S. 583 (1938) undermines it. More recent decisions of the United States Court of Appeals for the District of Columbia are extremely destructive of the President's position. Kennedy v. Sampson, 511 F.2d 430 (1974); Barnes v. Kline, 759 F.2d 51 (1985) ('The existence of an authorized receiver of veto messages, the rules providing for carryover of unfinished business, and the duration of modern intersession adjournments, taken together, satisfy us that when Congress adjourned its first session sine die on the day it presented H.R. 4042 to the President, return of that bill to the originating house was not prevented. We therefore hold that H.R. 4042 became law. . . .'), vacated and remanded with instructions to  dismiss the complaint as moot, Burke v. Barnes, 479 U.S. 361 (1987).

The following note from The Constitution Annotated is most interesting:

'The Administration declined to appeal [Kennedy v. Sampson] to the Supreme Court. . . . Subsequently, the President attempted to pocket veto two other bills, one during a 32-day recess and one during the period which Congress had adjourned sine die from the first to the second session of the 93rd Congress. After renewed litigation, the Administration entered its consent to a judgment that both bills had become law . . . and it was announced that President Ford 'will use the return veto rather than the pocket veto during intra-session and intersession recesses and adjournments of the Congress', provided that the House to which the bill must be returned has authorized an officer to receive vetoes during the period it is not in session.' Library of Congress, The Constitution of the United States of America: Analysis and Interpretation 136 n.22 (1987) (citation omitted).

CONCLUSION

The Executive Branch and the Legislative Branch have clashed repeatedly on veto policy during the past two decades. The President's actions on H.R. 2712 and the Congress' response are but the latest in a string of thrusts and parries. The President believes he exercised a 'pocket veto' and the bill is dead. The House has treated H.R. 2712 and its papers as though the President exercised a traditional 'return veto.' The Senate is preparing to concur in the House interpretation. There is another reading of the facts and the law, however. Under this alternative reading, H.R. 2712 became law on December 2, 1989 without the President's approval.

All very interesting, but perhaps academic. After all, you just know the Republicans would never accept this kind of reasoning from a bunch of crazy liberals. Right?

Oh, there's one part of the memo I forgot to show you. The heading:

Republican Policy Committee,
Washington, DC, January 24, 1990

To: Senator Armstrong
From: Lincoln Oliphant, Legislative Counsel.
Re notes on the constitutional posture of H.R. 2712, the Emergency Chinese Immigration Relief Act of 1989.

Ahhh. Remember when Republicans gave a crap about the finer points of the Constitution? Those were the days.

Subtitle: When is a pocket veto not a pocket veto?

Article 1, Section 7, Clause 2 If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law

There have been so many Bush crimes, so many little ones and big ones.  This is my first 2008 personal "V-8" moment.

Bush's "pocket veto" of the Defense Authorization Bill on December 29, 2007.  Yeah, so I'm a bit slow - give me a break. I've been on vacation.

But Congress hasn't been on vacation.

(also on Docudharma)

In Decemeber, President Bush claimed to pocket veto the defense authorization bill because his administration concluded -- after the bill was passed --that a provision in the bill would "imperil" Iraqi assets in the U.S. (of course, the administration's panic attack over pissing off the Iraqi government isn't necessarily supported by the facts).  But the administration scrambled to dispose of the bill nonetheless, and now the military is facing the headaches and consequences:

The Army has temporarily halted bonus payments for more than 20 enlistment, re-enlistment and service extension programs pending enactment of authorizing legislation. [...]

If enacted as currently written, the legislation would authorize $696.3 billion in defense spending during 2008, including $1 billion for Army accession and retention bonuses.

Until a new version of the legislation is enacted, all new bonus agreements signed on, or after, Jan. 1 must include an addendum that stipulates the soldier’s eligibility for a future bonus.

However, the addendum also stipulates that the bonus is not guaranteed. Payments will not be made if the affected bonus program is not authorized in the final budget compromise. [...]

Soldiers whose service contracts expire during the impasse have the option of extending month by month until the problem is worked out, or sign a service agreement on the assumption that a new authorization bill will be enacted.

Last year's escalation proved that the administration doesn't care about how the president's decisions affect the lives of soldiers. Why should this year be any different?

Enough to lie to them and slap them in the face. Twice just this week.

We take you back to July 20th...

Bush, July 20, 2007:

I’m joined by veterans and military families here to express support to our troops and their mission in Iraq. I want to thank you all for being here today. We’ve just finished a really good meeting. In our discussions, these folks had a message that all of us in Washington need to hear. It is time to rise above partisanship, stand behind our troops in the field, and give them everything they need to succeed. In February I submitted to Congress a Defense Department spending bill for the upcoming fiscal year that will provide funds to upgrade our equipment for our troops in Iraq and provides a pay raise for our military - a comprehensive spending request - that Congress has failed to act on.

Bush, May 16, 2007:

Military Pay: The Administration strongly opposes sections 601 and 606. The additional 0.5 percent increase above the President’s proposed 3.0 percent across-the-board pay increase is unnecessary.

That was Bush's "Statement of Administration Policy" on H.R. 1585, the "National Defense Authorization Act for Fiscal Year 2008," the bill that contained the authorization for that pay raise.

Bush, December 28, 2007:

I am withholding my approval of H.R. 1585, the "National Defense Authorization Act for Fiscal Year 2008," because it would imperil billions  of dollars of Iraqi assets at a crucial juncture in that nation's reconstruction efforts and because it would undermine the foreign policy and commercial interests of the United States.

[...]

The adjournment of the Congress has prevented my return of H.R. 1585 within the meaning of Article I, section 7, clause 2 of the Constitution. Accordingly, my withholding of approval from the bill precludes its becoming law. The Pocket Veto Case, 279 U.S. 655 (1929). In addition to withholding my signature and thereby invoking my constitutional power to "pocket veto" bills during an adjournment of the Congress, I am also sending H.R. 1585 to the Clerk of the House of Representatives, along with this memorandum setting forth my objections, to avoid unnecessary litigation about the non-enactment of the bill that results from my withholding approval and to leave no doubt that the bill is being vetoed.

And why was he vetoing authority for a pay raise for the troops, again?

To block the enactment of a provision in the bill that allowed former American prisoners of war held by the Saddam Hussein regime to recover damages for the torture they say they endured while serving under arms for the United States.

Bush is vetoing the military pay raise in order to keep American POWs who were tortured from recovering for their injuries.

Forget for a moment that he's trampling on the Constitution to do it. Forget asking how much more of this the Congress can take.

How much more "support" like this can the troops take?

The following is a message posted on behalf of Paul Sullivan, Executive Director of Veterans for Common Sense (VCS) with his permission and blessing.  Those in the Gulf War and later Veteran Community know of Pauls strong and fact-based advocacy of veterans since he led the charge after the Gulf War founding the first Gulf War Syndrome support group in the nation down in Georgia.  In the end, the VA decided he'd be better working WITH them instead of against them and hired him on as a project manager.  Paul became the chief whistleblower citing lack of VA resources to care for the influx of returning combat vets from Iraq and Afghanistan and left the organization in 2006.  

Without any further introduction, here's Paul on the Defense Authorization Act situation:

Kagro X rules. H.R. 1585 seems to be well and truly vetoed, nevertheless.

There is link on the main page to a story about a pocket veto that Bush is using against a recently passed defense policy bill. The article on the main page doesn't go into the sinister nature of this pocket veto. It is clear to me that the problems go well beyond George Bush declaring senate session’s non-sessions. He is, again, spitting in the face of both the congress and the constitution. He is purposely trying to create chaos and a constitutional crisis, in order to further weaken the long-term legitimacy of congress, and strengthen the near-dictatorial powers of the executive branch.

(Bumped by Susan)

That veto George W. Bush threatened of the Defense authorization bill? The one with the troops' pay raise in it?

He hasn't even got the stones to put his signature to it:

The adjournment of the Congress has prevented my return of H.R. 1585 within the meaning of Article I, section 7, clause 2 of the Constitution. Accordingly, my withholding of approval from the bill precludes its becoming law. The Pocket Veto Case, 279 U.S. 655 (1929). In addition to withholding my signature and thereby invoking my constitutional power to "pocket veto" bills during an adjournment of the Congress, I am also sending H.R. 1585 to the Clerk of the House of Representatives, along with this memorandum setting forth my objections, to avoid unnecessary litigation about the non-enactment of the bill that results from my withholding approval and to leave no doubt that the bill is being vetoed.

That's right, civics fans: Bush is claiming this is a "pocket veto," as defined in Article I, section 7 of the Constitution:

Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large  in their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case  it shall not be a law.

Because the bill has so much in it for veterans and active members of the Armed Forces, Bush apparently doesn't dare sign an affirmative veto. Instead, he'll pretend it... just went away on its own.

But this bill was presented to the president for his signature on December 19th. It's been eight days since then, not counting Sundays as the Constitution outlines. Seven if you give an extra day for Christmas. Hasn't been ten days yet.

Not only that, but you may recall that the Senate has remained in session all this time explicitly to prevent trickery like this. The most oft-cited reason was to prevent recess appointments, but the pro forma sessions -- the most recent of which was held today, yes, the very day Bush claimed there was no session -- also serve to avoid adjournment, and therefore the pocket veto.

But not in Bushworld. In Bushworld, these sessions don't count. Because he says so.

And if Bush thinks the Senate's sessions don't count, what's stopping him from making recess appointments?

How much more abuse can this Congress stand?

Digby's buddy DDay quotes from a CBS News story that actually catches Harry Reid doing the right thing.

Seriously.

Follow me past the jump and I'll explain.

I'm trying to figure out if Bush actually signed S.3930.  That's the Military Commissions Act.  AKA "The Torture Bill / End of Habeus Corpus" Act.  The Dictatorship Enabling Act.

I picked this up last night watching Olbermann's cringe-inducing demonstration as he crossed out articles 1,2,4,5,6,7,8,9 and 10 of the Bill of Rights.

He mentioned that Bush hadn't signed it.  And that he only had until the end of that day to do so.