Bush Shuns Patriot Act Requirement

by Charlie Savage for the Boston Globe - March 24, 2006

WASHINGTON - When President Bush signed the reauthorization of the USA Patriot Act this month, he included an addendum saying that he did not feel obliged to obey requirements that he inform Congress about how the FBI was using the act's expanded police powers.

The bill contained several oversight provisions intended to make sure the FBI did not abuse the special terrorism-related powers to search homes and secretly seize papers. The provisions require Justice Department officials to keep closer track of how often the FBI uses the new powers and in what type of situations. Under the law, the administration would have to provide the information to Congress by certain dates. 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."

Bush wrote: ''The executive branch shall construe the provisions . . . that call for furnishing information to entities outside the executive branch . . . in a manner consistent with the president's constitutional authority to supervise the unitary executive branch and to withhold information . . . " The statement represented the latest in a string of high-profile instances in which Bush has cited his constitutional authority to bypass a law. After The New York Times disclosed in December that Bush had authorized the military to conduct electronic surveillance of Americans' international phone calls and e-mails without obtaining warrants, as required by law, Bush said his wartime powers gave him the right to ignore the warrant law.

And when Congress passed a law forbidding the torture of any detainee in US custody, Bush signed the bill but issued a signing statement declaring that he could bypass the law if he believed using harsh interrogation techniques was necessary to protect national security. Past presidents occasionally used such signing statements to describe their interpretations of laws, but Bush has expanded the practice. He has also been more assertive in claiming the authority to override provisions he thinks intrude on his power, legal scholars said. Bush's expansive claims of the power to bypass laws have provoked increased grumbling in Congress. Members of both parties have pointed out that the Constitution gives the legislative branch the power to write the laws and the executive branch the duty to ''faithfully execute" them. Several senators have proposed bills to bring the warrantless surveillance program under the law. One Democrat, Senator Russell Feingold of Wisconsin, has gone so far as to propose censuring Bush, saying he has broken the wiretapping law. Bush's signing statement on the USA Patriot Act nearly went unnoticed.

Senator Patrick J. Leahy, Democrat of Vermont, inserted a statement into the record of the Senate Judiciary Committee objecting to Bush's interpretation of the Patriot Act, but neither the signing statement nor Leahy's objection received coverage from in the mainstream news media, Leahy's office said. Yesterday, Leahy said Bush's assertion that he could ignore the new provisions of the Patriot Act -- provisions that were the subject of intense negotiations in Congress -- represented ''nothing short of a radical effort to manipulate the constitutional separation of powers and evade accountability and responsibility for following the law. The president's signing statements are not the law, and Congress should not allow them to be the last word," Leahy said in a prepared statement. ''The president's constitutional duty is to faithfully execute the laws as written by the Congress, not cherry-pick the laws he decides he wants to follow. It is our duty to ensure, by means of congressional oversight, that he does so."

The White House dismissed Leahy's concerns, saying Bush's signing statement was simply ''very standard language" that is ''used consistently with provisions like these where legislation is requiring reports from the executive branch or where disclosure of information is going to be required. The signing statement makes clear that the president will faithfully execute the law in a manner that is consistent with the Constitution," said White House spokeswoman Dana Perino. ''The president has welcomed at least seven Inspector General reports on the Patriot Act since it was first passed, and there has not been one verified abuse of civil liberties using the Patriot Act." David Golove, a New York University law professor who specializes in executive power issues, said the statement may simply be ''bluster" and does not necessarily mean that the administration will conceal information about its use of the Patriot Act. But, he said, the statement illustrates the administration's ''mind-bogglingly expansive conception" of executive power, and its low regard for legislative power. ''On the one hand, they deny that Congress even has the authority to pass laws on these subjects like torture and eavesdropping, and in addition to that, they say that Congress is not even entitled to get information about anything to do with the war on terrorism," Golove said.