This is just another example of a pervasive pattern. A pattern that requires far more attention than it is getting:
Horrendous media coverage of the issues. And the ensuing tendency by the far right wing to distort the facts, and engage in misleading rhetoric or inverted logic that nevertheless "sounds" good without any further examination.
"Without any further examination" is exactly what the AP's Laurie Kellman did with respect to the Bush administration's argument that it can use signing statements to accomplish what in effect amount to changes in the law.
Give the AP credit, at least, for covering what is a huge story, yet one which has been barely noticed by the media. It was covered here, because Senator Arlen Specter, serving in his
once again dual role of conservative Senator who nevertheless realizes something is not quite right with this far right wing conservative administration's interpretation of it, has stated that Bush's use of signing statements are "a challenge to the plain language of the Constitution."
This statement, however, was buried deep in the article, which started off with the administration's claims, presented almost as fact, rather than as anything even remotely resembling the basically meaningless and seemingly made up rhetoric which they represent.
As originally reported by Charlie Savage of the Boston Globe, one of the few reporters that had been paying much attention to this issue of all:
Two senior Democratic House members yesterday demanded that President Bush withdraw his assertion that he can ignore portions of the USA Patriot Act calling on him to provide periodic reports to Congress on how new law-enforcement tactics are being used.
..."We ask that the administration immediately rescind this statement and abide by the law," the lawmakers wrote. ''Many members who supported the final law did so based upon the guarantee of additional reporting and oversight. The administration cannot, after the fact, unilaterally repeal provisions of the law implementing such oversight (emphasis added)."
Kellmans's piece nevertheless begins:
The White House on Tuesday defended President Bush's prolific use of bill signing statements, saying they help him uphold the Constitution and defend the nation's security.
"There's this notion that the president is committing acts of civil disobedience, and he's not," said Bush's press secretary Tony Snow, speaking at the White House. "It's important for the president at least to express reservations about the constitutionality of certain provisions."
The Bush administration has simply come up with these magical catch phrases, "constitutionality," or "constitutional grounds," that have absolutely no meaning herein, for simply changing laws that it disagrees with.
Yet Kellman's article gives almost no indication of this.
To be fair, the administration is likely referring to its overall, implicit view that it can basically do whatever it believes in or wants to in the name of national security. Despite the fact that the President is sworn first and foremost to defend the Constitution, this bizarre (or, alternatively, simply anti-constitutional) assertion is illogical.
As Glenn Greenwald notes:
Notwithstanding those threats, the Founders, in creating an Executive branch, sought first and foremost to ensure that the President could never wield unchecked powers which would exist above and separate from Congressionally enacted laws
With respect to the NSA surveillance and related issues, and, one assumes, the sudden magical ability of the President, through the use of signing statements, to merely change Congressional laws as he sees fit, that is exactly, as noted here, what the administration has done:
Think of as akin to the right to vote. Say that the executive branch decided that anybody who disagreed with the Administration's policies was not allowed to vote, because this might help vote out of office those who would "correctly apply the Constitution to fully protect us and our national security."
Or if it decided that the first amendment's right to a free press meant "one controlled by the government based upon national security concerns." Or if it decided in favor of the immediate incarceration of anybody who is Middle Eastern. Or who has red hair for that matter. Or any one of an infinite number of seemingly increasingly absurd propositions, wherein it would be patently obvious (even to the far right wing, that otherwise does not seem to understand these basic principles of democracy upon which our country was founded) that this was unconstitutional.
All of these are precisely analogous to the current argument. That is, as noted in this same piece:
The discretion to do "one thing" in the interest of "national security" is no more constitutionally valid, if it violates the separation of powers clauses, or some other clause of the Constitution, because it seems "reasonable" to some people, than the discretion to do "another thing" which seems [as in the above analogies] to be patently unreasonable on its face. The principles are identical.
The reason, incidentally, is simple, yet I have not yet seen it presented in any mainstream article relating to this subject. That is, we already have a mechanism for determining what is, and what is not, reasonable. It's called the will of the people that grant our government its sole power in the first place, as expressed through their elected representatives; Congress. Hence, why the very precise, clear, and unambiguous delineation of powers as set forth by the first three (and main) Articles of the Constitution. It's also the basic difference between a democracy -- where the people make these decisions, including ones that directly impinge upon their own freedoms and liberties, and a Monarchy -- where the Executive unilaterally makes these decisions.
Kellman not only ignores any such type of analysis, she does not even address the question.
Instead, she cites a line from a Justice department lawyer "defending" the bush administration's view, that is a classic example of pure Orwellian doublespeak:
"Congress has been more active, the president has been more active," she added. "The separation of powers is working when we have this kind of dispute."
"We have disputes," in this case means; "Congress passes a law, acting pursuant to its legislative powers. We, acting pursuant to legislative powers given specifically and only to Congress under the Constitution, simply rewrite that portion of the law that we don't like, on our own."
As for the line; "the separation of powers is working when we have this kind of dispute;" that's like saying "the separation of powers clauses of the Constitution (Articles I, II, III) expressly prohibits this, so, by doing what it expressly prohibits, we'll put out a statement that says, "this shows its working."
This basically amounts to otherwise meaningless rhetoric yet fact reversing and. Up is down. Black is white. Forward equals reverse. Dark equals light. Yet to the media, it's he said/she said reporting. Although this particular piece takes it one step further, and mainly focuses on the Bush administration "arguments" (if one can call them that), and does not really even present many claims in disagreement, let alone the far more common omission of the critical underlying facts.
The article does make a rather big deal out of noting that "signing statements," technically aren't supposed to have the effect of law -- but that's basically the entire point. They are supposed to clarify interpretations, not rewrite the law. (Moreover, unless a Court somehow decides it has jurisdiction, and is not precluded by the administration from adjudicating the manner based upon the rather broa, and until this administration infrequently used, state secrets doctrine, or for some other reason invoked by the administration, this technicality has no effect.)
Pointing this technicality out is one thing, but playing it up, would be similar to downplaying the NSA surveillance issue by stating that it is in direct contravention of FISA, and so doesn't matter much. In fact, that is exactly why it does matter. That's the whole point. Signing statements are technically not supposed to have the weight of law, because the Executive Branch does not have the authority under the Constitution to change the law in such manner. But by the rather unprecedented use of such signing statements by this administration, that is precisely what it has done. Yet a reader of this article, if anything, is also left with the opposite impression that, because of the precise why the administration can't do this in the first place, it is therefore "no big deal."
In the case of this particular signing statement -- one among many that the executive branch has used, in effect, to change both law and clear Congressional intent -- Congress extended the executive branch's unprecedented power over American citizen civil liberties (as the Patriot Act inherently grants), and so required that the FBI keep track of its use and that the administration provide information to Congress therein. It's giving the executive branch perhaps too much power, if anything, but at least building minimal checks into it.
Then, in response, the new Orwellian administration took those checks out, and now asserts that "the Constitution prevents such checks," when the Constitution does nothing of the sort. In fact, and more than a little ironically, the entire Constitution is premised upon such checks in the first place.
In other words, the very matter at issue involving the executive branch's abuse of power, perhaps not so coincidentally, involves the granting of more executive power itself.
The larger separation of powers issue, which prohibits the President from usurping the role of Congress' (read; usurping the role of the American people through their duly elected representatives), is being violated here, both directly and indirectly.
It is being violated directly by the usurpation itself (that is, the President dictating the law instead of Congress), and indirectly because that usurpation involves the self-appointment of EVEN more direct power than Congress granted under the bill.
Yet, at the very same time, the same far right wing is busy attacking and outlandishly vilifying this same mainstream media, for doing its job and reporting on these very same potentially unconstitutional infringements: A mainstream media that needs to learn that so long as remains a reporter of news, and not a spokesman for the far right wing, it is always going to get criticized. In other words, as its coverage has moved to the right, the right wing has moved to the right, and will never support the media until is covers what it wants it to cover, in the manner is which it wants it to say it (just like the fox channel, that poses as a news station, does right now).
Therefore the media needs to learn that its best defense is to honestly report the news, and stop trying to simply report "he said/she said" stories regardless of the underlying facts or divergent standards necessary to "appear balanced," rather than actually be balanced. That's also good journalism And it also happens to be an essential element of democracy. After all, information is the lifeblood of democracy, and an overwhelming majority of Americans still get their foundation of information from this same media.
