Congressional Record: July 28, 2006 (Senate)
Page S8404-S8407                       


  Mr. LEAHY. Mr. President, today, I sent a letter to President Bush. 
In it I urged him to cease and desist from what has become an abuse of 
Presidential signing statements. I first began drawing attention to 
these matters 4 years ago, in 2002. I hoped they would end at that 
time; instead, the abuses have mounted. Outstanding reporters, such as 
Charles Savage of the Boston Globe, have taken note of this important 
matter. They have reported on particular examples of egregious signing 
statements by which the President attempts to rewrite our laws. 
Editorial boards across the country have become increasingly critical, 
and I would say increasingly alarmed.
  This week, a distinguished bipartisan task force of the American Bar 
Association, made up of Republicans and Democrats, all across the 
political spectrum, released a unanimous report that was highly 
critical of the President's practice as ``contrary to the rule of law 
and our constitutional system of separation of powers.''
  With my letter today, I am trying to point the President to a better 
way. I urge him to raise any constitutional concerns he has with 
legislation with those of us in Congress while the legislation is 
pending and early in the process. If we agree with his analysis, we 
will work together to fix it. But, ultimately, under the Constitution, 
Congress writes the laws, not the President. Article I of the 
Constitution gives Congress the powers to write the laws. Article II of 
the Constitution requires the President to faithfully execute those 
laws. His oath of office very specifically says he will faithfully 
execute the laws, not make them.
  I speak on this topic again today because of its immediate importance 
to the reauthorization and revitalization of the Voting Rights Act that 
we unanimously passed last week. The President signed it into law 
yesterday. It was 98 to 0 in the Senate. It was passed by an 
overwhelming bipartisan margin in the other body. I felt privileged to 
be there when the President signed that law. I talked with him prior to 
the signing and again after he signed. I complimented him for the words 
he used in the ceremony when he signed the law. He sounded like a man 
fully on board and supportive of the findings, purposes and provisions 
of the law. I said after the signing, while I was there at the White 
House, that what really struck me the most was the President's saying 
his administration would ``vigorously enforce the provisions of this 
law and we will defend it in court.'' I praised President Bush for this 
statement. I did so again yesterday when the Judiciary Committee met.

[[Page S8405]]

  I am told that next week the President will issue a Presidential 
signing statement on the Voting Rights Act reauthorization. I am urging 
that this not be one of those infamous signing statements where he says 
something else, seeks to undercut the law, reinterpret it or in any way 
reduce his responsibility for fully and vigorously enforcing the law 
and defending and upholding its provisions in legal challenges--the 
Voting Rights Act especially. This act is something we don't just do 
for our generation, we do it for our children and our grandchildren in 
all parts of this country.
  What greater right do we have as Americans than the right to vote? We 
fought a revolution to have that right. We praise other nations when 
they toss off the shackles of dictatorship and can now vote. Yet in 
this country, for many decades, generations, large groups of people, 
because of the color of their skin, were not allowed to vote. 
Artificial obstructions were placed in the way so they could not vote. 
We came together, Republicans and Democrats, to say these people would 
be allowed to vote. The color of their skin will not make a difference. 
Their ethnic background will not make a difference. They will be able 
to vote. That is what was signed yesterday on the lawn of the White 
  The Constitution places the lawmaking power, ``All Legislative 
Powers,'' in the Congress. That is an Article I power. I believe our 
Founders made article I to, first and foremost, put the Congress first; 
the President came next.
  We are at a pivotal moment in our Nation's history, where Americans 
are faced with a President who makes sweeping claims for almost 
unchecked Executive power.
  This administration is now routinely using signing statements to 
proclaim which parts of the law the President will follow, which parts 
he will ignore, and which he will reinterpret. This is what I have 
called ``cherry picking.'' It is wrong.

  This President also used signing statements to challenge laws banning 
torture, laws on affirmative action, and laws that prohibit the 
censorship of scientific data. In fact, time and time again, this 
President has stood before the American people and signed laws enacted 
by their representatives in Congress, while all along crossing his 
fingers behind his back. I don't want the Voting Rights Act to fall 
into this area.
  Under our constitutional system of Government, when Congress passes a 
bill and the President signs it into law, that should be the end of the 
story. At that moment, the President's constitutional duty is to ``take 
care that the Laws be faithfully executed.'' In fact, that is his duty, 
which he acknowledged yesterday with respect to the Voting Rights Act. 
I commend him for that because his article II power, Executive power, 
is to execute the laws. He doesn't have a legislative power.
  I remind the President and this administration of this--and I have 
been here with six Presidents, Democrats, and Republicans, and I have 
never seen anything like this in my 32 years in the Senate. I have 
never seen such a case where an administration has a sense that it is a 
unitary executive. It is not a unitary executive. The legislative power 
is vested in the Congress. The judicial power is vested in the 
judiciary. The power to execute the laws is in the administration. But 
the Constitution and the President's oath of office say I ``shall 
faithfully execute.''
  When the President uses signing statements to unilaterally rewrite 
the laws enacted by the people's Representatives in Congress, he 
undermines the rule of law and our constitutional checks and balances 
designed to protect the rights of the American people.
  These signing statements are a diabolical device, but this President 
will continue to use and abuse them if the Republican-controlled 
Congress lets him. So far, the Congress has done exactly that.
  I say this with all due respect to my friends on the other side of 
the aisle. The Republican-controlled Congress has become a rubberstamp. 
It does not show the checks and balances that it should. Actually, the 
President has not been helped because he is falling into the trap of 
assuming that whatever he does is going to be rubberstamped by the 
Republican-controlled Congress. I think America can do better. I think 
America should have a choice. I think America should have a voice. I 
don't think America should have a rubberstamp for a Congress because 
whether it is torture, warrantless eavesdropping on American citizens, 
or the unlawful treatment of military prisoners, the Republican-led 
Congress has been willing to turn a blind eye and rubberstamp the 
questionable actions of this administration, regardless of the 
consequences to our Constitution and civil liberties.
  Mr. President, I mentioned that this issue of signing statements is 
something that has concerned me since 2002. That was also the year that 
the Bush-Cheney administration was writing secret legal memoranda 
seeking to justify another form of lawlessness by postulating an 
unfounded and unconstitutional Commander in Chief override to our laws, 
and they did this to justify the use of torture.
  When that memorandum was exposed to the light of day, not by the 
rubberstamp Congress, but by the press, the administration had to 
withdraw it. But we read in a front-page story in the Washington Post 
today of another ominous development. Apparently, the Bush-Cheney 
administration lawyers are meeting with Republicans and the Republican-
controlled Congress to write immunities and amnesties into the law and 
to renege on this country's commitment to human rights and the Geneva 
  Mr. President, I say, for shame. To think that you can use a 
rubberstamp Congress to renege on this country's proud commitment to 
human rights is another aspect of the lawlessness of this 
administration. But it will succeed if the Republican-led Congress 
continues to act as a wholly owned subsidiary of the White House, 
instead of fulfilling its responsibility as a separate and independent 
branch of Government intended by the Founders and established by the 
Constitution to serve as a check on the Executive. I helped write the 
war crimes law that the Bush-Cheney administration is trying to 
undermine. In 1996 and 1997, we acted with the support of the 
Department of Defense to include expressly in our laws culpability for 
violating human rights in the Geneva Conventions. The United States did 
that so we could serve as a world leader and as a moral leader.

  We have set standards for conduct that we demand others around the 
world follow. We cannot credibly ask others to meet standards we are 
unwilling to meet ourselves. Why diminish the moral leadership of the 
United States by trying to quietly carve out an exception for us, 
telling the rest of the world to do this but then saying we won't? We 
have insisted on human rights and the rights of Americans, civilian and 
military, throughout the world. Let's not tell the rest of the world: 
It is do as we say, not as we do. More recently, we have seen Abu 
Ghraib reported detainee abuses, investigations into the deaths of 
detainees and civilians in war zones, and indictments of American 
service personnel and contractors. These have all combined to stain 
America's reputation and role. We must not retreat from the fight for 
human rights. We must not ``cut and run'' from our responsibilities as 
the world leader and the world's only superpower.
  The American military men and women are the finest in the world. They 
have been trained to respect human rights, and they do so. They need 
not fear laws against brutality and inhumanity. We, the United States, 
helped develop and then endorse the Geneva Conventions to set standards 
to protect our own troops. To walk away from these protections would be 
to ``cut and run'' and walk away from our men and women in uniform. 
Pulling a thread from this cloak of protection risks beginning a 
process of unraveling the entire fabric to the detriment of our troops 
and to the great shame of the United States.
  It is disheartening to read that the highest law enforcement officer 
in the country is leading an effort to undercut the rule of law. Rather 
than enforce the law as he is sworn to do, he is reportedly seeking to 
undermine it. Instead of ignoring the laws we have long honored, our 
leaders should be obeying them, not obfuscating or creating loopholes 
in them. They should be saying nobody, not even the President of the 
United States, is above the law. The Attorney General of the United 

[[Page S8406]]

is not an in-house counsel to the President or consigliere to the Vice 
President and Secretary of Defense. His constitutional responsibility 
is to enforce the law. They seem to have forgotten this, and I am 
speaking today to remind them of their sworn duty.
  Mr. President, before yielding the floor, I ask that a series of 
items be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                      U.S. Senate,

                                   Committee on the Judiciary,

                                    Washington, DC, July 28, 2006.
     President George W. Bush,
     The White House,
     Washington, DC.
       Dear President Bush: This week a distinguished Task Force 
     on Presidential Signing Statements and the Separation of 
     Powers Doctrine of the American Bar Association reported. The 
     Task Force unanimously opposed a President's issuance of 
     signing statements to claim the authority to state the 
     intention to disregard or decline to enforce all or part of a 
     law he has signed, or to interpret such a law in a manner 
     inconsistent with the clear intent of Congress as ``contrary 
     to the rule of law and our constitutional system of 
     separation of powers.'' The Senate Judiciary Committee held a 
     hearing on the matter last month. I have spoken to the issue 
     on a number of occasions, including this week on the floor of 
     the Senate.
       You have produced more signing statements containing 
     challenges to bills you have signed into law than all prior 
     Presidents in our history combined. I understand that you 
     have produced more than 800 challenges to the bills you have 
     signed into law, including many challenges related to your 
     theory of the ``unitary executive.''
       I write to urge you to cease and desist from this practice. 
     I urge you to recognize that our Constitution vests ``All 
     legislative Powers'' in the Congress and that the President's 
     constitutional responsibility is to ``take Care that the Laws 
     be faithfully executed.''
       I offer the following constructive suggestion. Rather than 
     wait until a bill is passed, why not provide those of us 
     elected to Congress with any constitutional concerns you may 
     have regarding pending legislation at the earliest 
     opportunity. That would allow legislators to consider your 
     concerns during the legislative process.
                                                    Patrick Leahy,
     Ranking Democratic Member.

                 [From the New York Times, May 5, 2006]

                        Veto? Who Needs a Veto?

       One of the abiding curiosities of the Bush administration 
     is that after more than five years in office, the president 
     has yet to issue a veto. No one since Thomas Jefferson has 
     stayed in the White House this long without rejecting a 
     single act of Congress. Some people attribute this to the 
     Republicans' control of the House and the Senate, and others 
     to Mr. Bush's reluctance to expend political capital on 
     anything but tax cuts for the wealthy and the war in Iraq. 
     Now, thanks to a recent article in The Boston Globe, we have 
     a better answer.
       President Bush doesn't bother with vetoes; he simply 
     declares his intention not to enforce anything he dislikes. 
     Charlie Savage at The Globe reported recently that Mr. Bush 
     had issued more than 750 ``presidential signing statements'' 
     declaring he wouldn't do what the laws required. Perhaps the 
     most infamous was the one in which he stated that he did not 
     really feel bound by the Congressional ban on the torture of 
       In this area, as in so many others, Mr. Bush has decided 
     not to take the open, forthright constitutional path. He 
     signed some of the laws in question with great fanfare, then 
     quietly registered his intention to ignore them. He placed 
     his imperial vision of the presidency over the will of 
     America's elected lawmakers. And as usual, the Republican 
     majority in Congress simply looked the other way. Many of the 
     signing statements reject efforts to curb Mr. Bush's out-of-
     control sense of his powers in combating terrorism. In March, 
     after frequent pious declarations of his commitment to 
     protecting civil liberties, Mr. Bush issued a signing 
     statement that said he would not obey a new law requiring the 
     Justice Department to report on how the F.B.I. is using the 
     Patriot Act to search homes and secretly seize papers if he 
     decided that such reporting could impair national security or 
     executive branch operations.
       In another case, the president said he would not instruct 
     the military to follow a law barring it from storing 
     illegally obtained intelligence about Americans. Now we know, 
     of course, that Mr. Bush had already authorized the National 
     Security Agency, which is run by the Pentagon, to violate the 
     law by eavesdropping on Americans' conversations and 
     reading Americans' e-mail without getting warrants.
       We know from this sort of bitter experience that the 
     president is not simply expressing philosophical reservations 
     about how a particular law may affect the war on terror. The 
     signing statements are not even all about national security. 
     Mr. Bush is not willing to enforce a law protecting employees 
     of nuclear-related agencies if they report misdeeds to 
     Congress. In another case, he said he would not turn over 
     scientific information ``uncensored and without delay'' when 
     Congress needed it. (Remember the altered environmental 
     reports?) Mr. Bush also demurred from following a law 
     forbidding the Defense Department to censor the legal advice 
     of military lawyers. (Remember the ones who objected to the 
     torture-is-legal policy?) Instead, his signing statement said 
     military lawyers are bound to agree with political appointees 
     at the Justice Department and the Pentagon.
       The founding fathers never conceived of anything like a 
     signing statement. The idea was cooked up by Edwin Meese III, 
     when he was the attorney general for Ronald Reagan, to expand 
     presidential powers. He was helped by a young lawyer who was 
     a true believer in the unitary presidency, a euphemism for an 
     autocratic executive branch that ignores Congress and the 
     courts. Unhappily, that lawyer, Samuel Alito Jr., is now on 
     the Supreme Court.
       Since the Reagan era, other presidents have issued signing 
     statements to explain how they interpreted a law for the 
     purpose of enforcing it, or to register narrow constitutional 
     concerns. But none have done it as profligately as Mr. Bush. 
     (His father issued about 232 in four years, and Bill Clinton 
     140 in eight years.) And none have used it so clearly to make 
     the president the interpreter of a law's intent, instead of 
     Congress, and the arbiter of constitutionality, instead of 
     the courts.
       Like many of Mr. Bush's other imperial excesses, this one 
     serves no legitimate purpose. Congress is run by a solid and 
     iron-fisted Republican majority. And there is actually a 
     system for the president to object to a law: he vetoes it, 
     and Congress then has a chance to override the veto with a 
     two-thirds majority. That process was good enough for 42 
     other presidents. But it has the disadvantage of leaving the 
     chief executive bound by his oath of office to abide by the 
     result. This president seems determined not to play by any 
     rules other than the ones of his own making. And that 
     includes the Constitution.

                [From the, July 3, 2006]

              President Can't Ignore Laws He Doesn't Like

       When children lie or make promises they have no intention 
     of keeping, they cross their fingers behind their back in a 
     gesture that means ``not really.''
       The signing statement is President Bush's equivalent of 
     crossed fingers. He signs bills passed by Congress, then 
     attaches his own language saying how and whether he intends 
     to enforce them.
       Last week, members of Congress from both sides of the aisle 
     took after the president for his use of signing statements. 
     The Bush administration defends the practice, saying 
     presidents as far back as James Monroe have used signing 
     statements. That is technically correct but woefully 
       Signing statements began as a way for presidents to signal 
     their interpretation of legislation. But President Bush has 
     issued signing statements affecting 750 statutes--more than 
     all other presidents combined. And his statements can only be 
     read as signaling his intention to ignore provisions in the 
     laws. He attached signing statements to a bill banning 
     torture, a measure requiring the administration to supply 
     data on the use of the Patriot Act and a bill governing 
     affirmative action.
       Lawmakers were particularly irked that Mr. Bush, who hasn't 
     vetoed a single bill in six years, seems to be using signing 
     statements instead of vetoes. If he vetoed legislation he 
     opposed, the bill would return to Congress for further debate 
     and an attempted override vote. Congress would get a chance 
     to fight the president's position. With a signing statement, 
     there is no debate, no second vote and no fight.
       There is just government by fiat.
       The irony in the signing statement issue is that the Bush 
     administration has gotten virtually everything it has sought 
     from Congress. With few exceptions--the torture ban being 
     one--President Bush could have persuaded Republican lawmakers 
     to include or omit certain provisions, crafting legislation 
     to his liking on the front end.
       But such a public and candid approach would have required 
     some degree of congressional debate and public discussion. 
     That may not be this president's style, but it is the 
     democratic way. Congress should not let him get away with 
     this power grab.

                 [From the Boston Globe July 25, 2006]

                        Ending Back-Door Vetoes

       Over the last five years, congressional leaders have barely 
     squawked as President Bush signed bills and then quietly but 
     explicitly declared his intention to discount key provisions 
     of them. He has attached such statements to more than 800 
     laws, at last count. Left unchallenged, the president's so- 
     called ``signing statements'' would represent a unilateral 
     change to the structure of the U.S. government, a change that 
     no one outside the White House played any role in enacting.
       Yesterday, a bipartisan task force of the American Bar 
     Association concluded that these statements violate the 
     constitutional separation of powers. And the panel called for 
     federal legislation that would allow for judicial review of 
     any statement in which the president claims the authority to 
     disregard all or part of a law.
       The bar association's House of Delegates has yet to vote on 
     the recommendations, but

[[Page S8407]]

     endorsing them should be virtually automatic for a group of 
     lawyers. Whether the White House or congressional leaders 
     will act on the proposal is another story. For decades, 
     presidents asked the bar association, which represents the 
     nation's lawyers, to evaluate the credentials of judicial 
     nominees, but the current President Bush put an end to that 
     practice. His administration treats the bar association as 
     just another interest group, to be humored or ignored as he 
       But the task force has a point. Bush has employed signing 
     statements more often and more aggressively than any of his 
     predecessors, as the Globe's Charlie Savage documented in a 
     series of articles this spring. The laws in question touch on 
     fundamental values, such as whether U.S. military 
     interrogators should be allowed to torture detainees.
       The administration's defenders say the president is merely 
     objecting to unconstitutional provisions specifically, ones 
     that infringe on the rightful powers of the executive within 
     otherwise desirable legislation. But even if the Bush 
     administration were correct on that point, back-door vetoes 
     only relieve Congress of its obligation to make laws that are 
     constitutional. The task force notes that deciding 
     constitutionality is up to the federal courts. ``The 
     Constitution is not what the President says it is,'' the 
     panel's report declares.
       Congress was right to prohibit the use of torture by 
     American interrogators. If the president opposed that ban, he 
     had the right to veto it. That, of course, would have looked 
     bad, both at home and around the world. But while a veto-by-
     signing-statement might have been more convenient 
     politically, no part of the Constitution gives the president 
     the right to have it both ways to enforce parts of laws that 
     magnify the power of the executive branch and then ignore the 

                 [From the Boston Globe, May 30, 2006]

                          Equal Power Failure

       No congressional dander was raised when the Bush Pentagon 
     incarcerated hundreds of uncharged men at Guantanamo Bay, 
     Cuba. Spaniel-like, the lawmakers hustled up legislation that 
     attempted to legitimize some of the illegal jailings long 
     after the fact.
       Did electronic surveillance of American citizens, in direct 
     violation of the law Congress passed in 1978 setting clear 
     guidelines for such activity, provoke outrage on Capitol 
     Hill? No problem, said the leaders. We will allow the 
     attorney general to duck questions on it, and promote the 
     general who implemented it.
       How about the shameful torture and humiliation of prisoners 
     in Iraq? Congress barely worked up enough gumption to express 
     its disapproval. And then, when President Bush attached a 
     ``signing statement'' to the anti-torture legislation, saying 
     he really wasn't buying it, Congress yawned.
       And when the Globe's Charlie Savage reported that Bush had 
     added such statements to more than 750 bills, claiming the 
     right to disobey their mandates, Congress tucked in its tail 
     and went to sleep.
       Or so it seemed.
       Now it is clear that the lawmakers simply viewed these 
     actions as trifling infringements of their prerogatives. They 
     were just waiting for the right issue to come along so that 
     they could assert boldly and forcefully the co-equality of 
     the legislative branch. They were looking for something they 
     considered big. And they found it.
       One of their own, Representative William J. Jefferson, 
     Democrat of Louisiana, was accused of taking a $100,000 
     bribe, $90,000 of which was found in his freezer. When the 
     response to FBI subpoenas was slow, agents got a warrant and 
     raided his Capitol office. Republican and Democratic leaders 
     howled in unison, but for what reason?
       First, it is pretty clear that Congress has no immunity 
     from criminal searches. The Constitution does say members are 
     ``privileged from arrest during their attendance at the 
     session,'' but not in cases of ``treason, felony, and breach 
     of the peace.'' Floor debate is protected; bribery is not.
       Second, the chorus of objections to the FBI raid was a 
     bipartisan public relations blunder. The public has a low 
     enough opinion of the skulduggery that goes on all over 
     Washington without Congress officially declaring Capitol Hill 
     a cop-free zone.
       Most frustrating is Congress's choice of irritants. Many 
     Americans will cheer if Congress stands up on two feet and 
     defends its constitutionally sacrosanct right to legislate. 
     This right is under serious attack, but the attack is coming 
     from the president of the United States, not from a few FBI 

          [From the, Friday July 28, 2006]

                              Signing Off

       Across a wide range of areas, President Bush has asserted a 
     grandiose vision of presidential power, one to which Congress 
     has largely acquiesced. From domestic surveillance to holding 
     detainees in the war on terrorism, the administration has 
     generally ignored the legislature, brushed aside inconvenient 
     statutes and proceeded unilaterally. All of this, as we have 
     argued many times, warrants grave concern and a strenuous 
     response. But it is worth separating that issue from the 
     ongoing controversy over the president's aggressive use of 
     what are called ``signing statements''--those formal 
     documents that accompany the signing of a bill into law.
       Ever since the Boston Globe reported this year that the 
     president had used such statements to question the 
     constitutionality of more than 750 provisions of law, critics 
     across the political spectrum have been up in arms. The 
     Senate Judiciary Committee held hearings, and this week a 
     task force of the American Bar Association issued a report 
     accusing the president of usurping legislative powers.
       President Bush brought this skirmish on himself. He has 
     used signing statements--which indicate that he will 
     interpret new laws so as to avoid the constitutional problems 
     he has flagged within them--far more frequently than other 
     presidents. In some areas, he has used them to articulate 
     deeply troubling views of presidential authority. Most 
     infamously, in signing the amendment by Sen. John McCain (R-
     Ariz.) banning American personnel from using ``cruel, inhuman 
     or degrading'' treatment on detainees, he stated that his 
     administration would interpret the new law ``in a manner 
     consistent with the constitutional authority of the President 
     to supervise the unitary executive branch and as Commander in 
     Chief and consistent with the constitutional limitations on 
     the judicial power''--apparently reserving for himself the 
     power to override the prohibition.
       Still, it is important not to let Mr. Bush's ugly signing 
     statements bring the presidential practice into disrepute. 
     Signing statements are actually a useful device for 
     transparent and open government.
       Presidents have long used signing statements to identify 
     particular provisions of law as potentially unconstitutional. 
     They have just as long declined to enforce provisions of law 
     they regarded as unconstitutional. Particularly since the 
     Carter and Reagan administrations, the use of signing 
     statements has been on the upswing, and that's generally a 
     good thing. These statements give the public and Congress 
     fair warning about which laws the president intends to ignore 
     or limit through interpretation. They thereby permit 
     criticism and more vibrant debate. And they have no legal 
     consequences over and above the president's powers to 
     instruct the executive branch as to how to interpret a law--
     which he could do privately in any case.
       While Mr. Bush has been particularly aggressive about 
     issuing signing statements, a great many break no new ground 
     but merely articulate constitutional views that the executive 
     branch has held across many administrations. The problem is 
     not that Mr. Bush reserves the right to state his views; it 
     is the dangerous substance of the views he sometimes states.

  Mr. LEAHY. Mr. President, I yield the floor, and I suggest the 
absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DAYTON. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
  Mr. DAYTON. Mr. President, may I inquire, are we in a period of 
morning business?
  The ACTING PRESIDENT pro tempore. The Senate is in morning business, 
with Senators allowed to speak for up to 10 minutes.