Shunning separation of powers…again

The mainstream press missed a major story on the PATRIOT Act. How did I just hear about this yesterday? And why only in the Boston Globe? It appears that the President included a statement after signing the PATRIOT Act that reflects his interpretation of the law in a manner that is consistent with his justification for the NSA warrantless wiretapping program: based on the President’s constitutional authority, he doesn’t have to inform Congress of the FBI’s activities, despite the law’s requirements to do so. An excerpt of the article:

Bush signed the bill with fanfare at a White House ceremony March 9, calling it ''a piece of legislation that's vital to win the war on terror and to protect the American people." But after the reporters and guests had left, the White House quietly issued a ''signing statement," an official document in which a president lays out his interpretation of a new law.

In the statement, Bush said that he did not consider himself bound to tell Congress how the Patriot Act powers were being used and that, despite the law's requirements, he could withhold the information if he decided that disclosure would ''impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive's constitutional duties."

I continue to be frustrated by the President’s audacious rejection of legislative power based on his interpretation of the Constitution. Given republican control of Congress that is mostly happy to watch him do what he likes and my doubts that democrats will win back the House this fall, I’ve realized that my frustration stems from a threat that goes beyond partisan politics. According to Bush, Congress can make laws, but as long as we’re at “war”, he doesn’t have to follow him. It follows then that as long as there are terrorists in the world, he can do what he wants without oversight. This interpretation is generally regarded as bad legal advice. I think its worse: I think it’s a deliberately bad legal advice—so bad it should be regarded as criminal. My evidence that it’s deliberately bad? Don’t have any. Call it a hunch (and I’m entitled to my hunches).

Generally, arguing executive powers is the job of constitutional scholars and historians. It’s a realm that most of us have little business exploring. But at the root of the argument against the President’s interpretation of executive power during wartime is common sense: even if one defines the War on Terror as justification for special wartime executive powers and even if he should be spying on Americans (assumptions that are highly questionable), the result is simply the creation of bad policy. Constitutional law can be debated, but the result is the deconstruction of a fragile system of checks and balances. Americans benefit immensely from checks and balances. Therefore, this is bad policy because it doesn’t serve Americans.

When we have a president that is only elected every four years, it’s important that we have representatives to speak and act for our interests during that time. That president can make a single decision that does not reflect our best interests. When he does so, the other branches serve as our means to not only resist bad policy but to guide the President in a direction that best steers him to our sense of right and wrong. Without oversight, the President cannot steer with all the tools he has available. While he sees oversight as an obstacle, it can serve in reality as the people’s helm.

And shunning separation of powers is the slipperiest of the slippery slopes. According to his interpretation, he can do anything he deems necessary without telling anyone about it. He can break any law Congress passes or has passed if he can justify that it is necessary to protect Americans (not hard to do when you can’t release the evidence because it is Top Secret). Example: the PATRIOT Act. Having made his justification of the NSA warrantless wiretapping program about wartime powers, he was able to extend his interpretation to the PATRIOT Act. Before he could direct the NSA without oversight; now the Justice Department and FBI can also act without oversight. What’s next? And how will we know what’s next if they don’t have to tell anyone?