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American Bar Association: President Bush is “Undermining Rule of Law” By Ignoring Laws Passed by Congress

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ABA President Michael Greco discusses the organization’s new report criticizing the president’s unprecedented use of signing statements. Greco also speaks out on presidential power, domestic surveillance, Guantanamo and torture. [includes rush transcript]

The largest lawyers group in the country has warned that President Bush is undermining the Constitution by claiming he has the authority to ignore laws passed by Congress.

A new report by the American Bar Association criticizes the president’s unprecedented use of what’s known as signing statements through which he claims a right to ignore or not enforce sections of bills that he signs into law.

The report declares: “The Constitution is not what the President says it is.”

Since Bush took office, he has issued over 800 signing statements — more than all other presidents combined.

The ABA’s report was written by a bipartisan task force that including several well known conservatives former FBI Director William Sessions (who served under President Ronald Reagan and George H.W. Bush), former Republican Congressman Mickey Edwards and Bruce Fein who served in the Reagan and Bush administration.

  • Michael Greco, President of the American Bar Association.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Michael Greco is the President of the American Bar Association. He joins us from our studio in Washington D.C. Welcome to Democracy Now!, Michael Greco.

MICHAEL GRECO: Good morning.

AMY GOODMAN: Well, why don’t you talk about your findings?

MICHAEL GRECO: The American Bar Association has a task force looking at the presidential signing statements practice. We released the report two days ago here in Washington. The major finding of the task force is that a president’s use of signing statements to ignore enforcement of laws is violating the Constitution. The report also found that the system of checks and balances, in which the three branches of government have powers clearly delineated, but clearly limited, are being harmed by the practice of the President in denying Congress its proper role in the process of government.

AMY GOODMAN: Michael Greco, for non-lawyers, can you explain exactly what these signing statements are and why suddenly the President is using them hundreds of times? How does the process actually work? He sits down and signs a bill, and then what?

MICHAEL GRECO: Under the Constitution, Congress enacts a law, sends it to the President. The President has two choices under the Constitution: either approve that law in toto, without picking and choosing which portions he’s going to enforce, or he vetoes it. Those are the only two choices. Now comes something called a presidential signing statement that presidents had used before President Bush, but before President Bush, all presidents combined had only issued 600 signing statements. President Bush in the last five-and-a-half years has issued more than 800 of them.

What a presidential signing statement is is a little statement that the President attaches to a bill when he signs it, and the President, in a sense, in essence, is saying in that little statement, “I find some fault or some problem with this law, and I don’t intend to enforce a part of it or all of it, because I think it’s either unconstitutional or it interferes with my powers.”

That little statement has taken on a new life in the last 25 years. Before President Reagan, that statement was mostly ceremonial. Only a handful of times did a president indicate in that statement that he intended not to enforce a law. Since 1980, we have hundreds of them. And in most of those hundreds, 800 of them belong to President Bush.

Let me make one thing clear: we are not singling out President Bush. This practice of signing statements precedes him, but the frequency and the purpose to which this president and future presidents might make of the signing statement is what is of concern to the American Bar Association, because it is harming the separation of powers and checks and balances system that has seen us through for the last two centuries in this country.

AMY GOODMAN: Explain how he could use it.

MICHAEL GRECO: Well, the signing statement is — as I said, he indicates that he’s not going to enforce a portion of a law. Let me give you an example. The country was so ashamed when we learned that our military personnel were torturing prisoners, Senator John McCain pressed for a law. The White House tried to dissuade Senator McCain from pressing that law. When Congress said essentially, “We are going to enact this law,” the President commended Congress for enacting that law, but when he signed that law, he attached a statement to it saying that if he determines that enforcement of that law would interfere with his duties as president and authority as president, he will ignore it.

So that’s the effect of signing statements as recent presidents have used them. And they are corrosive. They are damaging to our system of government. And that’s why this bipartisan ABA task force, as you said at the top, comprised of some very distinguished and respected conservatives, as well as liberals, Republicans and Democrats, came out with a unanimous report, finding the practice of a president using these signing statements to violate the Constitution of the United States.

AMY GOODMAN: Michael Greco, we have to break for 60 seconds. We’ll be back with you. Michael Greco is President of the American Bar Association. Later, we’ll be joined by Congressmember Dennis Kucinich. He’s attempting to get into the Capitol building, but they’re not letting him in, as he tries to make his way into the studio, into his own house, the House of the people. He says it’s unclear why they’re not letting the congressman in. Stay with us.


AMY GOODMAN: Our guest is the President of the American Bar Association, Michael Greco. The American Bar Association committee task force has come out with a report finding President Bush’s signing statements undermine the separation of powers. You’ve given examples in the report of the kinds of bills that he has used the signing statement with. Can you give us a few?

MICHAEL GRECO: Well, the one I mentioned before the break, the torture amendment, which was of such importance to Congress and to the American people to say to the world, we don’t torture people; if the President, after Congress has deliberated and enacted that law, announces in a signing statement that he doesn’t intend to enforce that, that’s a very serious matter.

Another example is that Congress enacted another law requiring the President to report to Congress any incidents in which the PATRIOT Act, the USA PATRIOT Act, was being misused, to report on the number of times that Americans have been spied on and other such information. He attached a signing statement to that bill, as well, saying that if he believes that enforcing that bill would interfere with his presidential powers, he will ignore it.

One thing should be pointed out. If the President believes that a law that Congress has enacted is unconstitutional or he has other problems with it, the Constitution provides him with an avenue: he can veto that bill. No one expects the President to enforce a law that he is uncomfortable with. But instead of vetoing these bills and sending it back to Congress so that Congress can deal with the President’s concerns and either modify that bill to address those concerns or override the veto by a two-thirds vote, what the President is doing is denying Congress that power, given to it in the Constitution.

That’s what we mean when we’re talking about destroying the system of checks and balances, because recent presidents — and it isn’t just President Bush — recent presidents have been taking, seizing more and more power from the other two branches to create a more powerful executive branch. The founders of this country separated those powers, precisely so that we would not have a monarch or a king or an all-powerful executive branch. That’s how serious this issue is.

AMY GOODMAN: We’re talking to Michael Greco, President of the American Bar Association. The Senate Judiciary Committee is holding a hearing today on modernizing the Foreign Intelligence Surveillance Act, FISA. Can you talk about the new FISA bill that’s been proposed by Senator Arlen Specter?

MICHAEL GRECO: The American Bar Association issued a report from another task force that I appointed as ABA president back in January, and in that report, also from a bipartisan group of distinguished conservatives and liberals, that report was also unanimous. And in that report we urged that Congress not enact any legislation amending FISA until Congress knows what’s going on.

Seven months after the New York Times disclosed the existence of the secret spying program, the administration still has not informed Congress, other than a couple of committees, some members of those committees, what this program is all about. So first and foremost, the ABA task force has said, “Do not take any action on any legislation until you, Congress, know what is involved.” How can you legitimize this program until you know what’s in it? The Specter bill, unfortunately, to our view, legitimizes what’s going on now without Congress or the American people knowing what’s in that program, number one.

Number two, the ABA’s position is there’s no reason to do drastic surgery on FISA. That bill, enacted in 1978 to address abuses by the then administration of spying on Americans, has some very important safeguards in it. It requires that, before someone is spied on, that a warrant be gotten by the Justice Department or by the prosecution or the prosecutors. Any amendment to FISA — and some of these bills, including the Specter bill and others, would eliminate that requirement of a warrant, and in doing that, damage, fatal damage, would be done to the Fourth Amendment of the U.S. Constitution. And we can’t afford to have one of our Bill of Rights so easily dismissed. The Fourth Amendment requires that there be a warrant issued and that there be probable cause existing before someone is spied on. Any bill that Congress enacts must continue to have those two Fourth Amendment protections.

In a nutshell, that’s the ABA’s position, and the Specter bill, as much as we admire and respect Senator Specter for bringing this to the forefront, we think that bill falls way short of the protections that the American people deserve to have under FISA and under the Fourth Amendment.

AMY GOODMAN: Michael Greco is outgoing president of the American Bar Association, the nation’s largest law association, association of lawyers in this country. Can you talk about the issues of torture, the Hamdan decision, and the issues of extraordinary rendition?

MICHAEL GRECO: As I said a moment ago, when all of us in our country learned that our military was torturing people, when we learned that people were being held, detained at Guantanamo without access to family, to lawyers, to a judge, to review the reasons for that incarceration, these are just some examples of the kinds of freedoms issues that the American Bar Association addresses to protect our constitutional rights.

The Supreme Court of the United States, in two decisions, in 2004 and again about three weeks ago, made it clear that the war on terror does not give the President a blank check to deny fundamental freedoms that are protected by the Constitution. We are not a country that has tortured people, and it shamed all of us, and that is why the ABA adopted a policy resolution condemning that and asking Congress, urging Congress to hold hearings to find out who caused that torture, why it happened, and to ensure that it will never happen again. Congress has not held such hearings. We continue to urge Congress to get beneath that torturing system so that we can find out why and prevent it from happening again.

These series of issues that you just mentioned are issues of great concern, not only to the ABA, but to all of us in this country. We want security. We want our nation to be secured. We want the President and the administration to protect us, but not at the expense of giving up our constitutional freedoms, because if we do that voluntarily, then we are doing the work of the terrorists that are trying to destroy our democracy. We would be doing it to ourselves, and that would be the ultimate harm inflicted on ourselves.

AMY GOODMAN: Michael Greco, would you call the presidency of President Bush dangerous?

MICHAEL GRECO: I think that’s too sweeping a statement. I think the President and the administration are doing their job as they see fit and in the best way they can. There are legitimate differences of opinion as to how the war on terror is being conducted. We say at the ABA and a lot of scholars around the country say that we can fight the war on terror and also protect our freedoms. It’s not an either/or. It should not be an either/or. Anyone who says that you have to choose national security over constitutional freedoms is giving the American people a false choice. I reject that false choice. The American Bar Association rejects that false choice. We can do both, and we must do both for the good, not only of our current citizenry, but for generations to come. We have to protect our freedoms while we are winning the war on terror.

AMY GOODMAN: Michael Greco, I want to thank you for being with us, President of the American Bar Association, speaking to us from Washington D.C.


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