Reed

PROVIDENCE — Sen. Jack Reed yesterday decried President Bush’s attempts to “disrupt the balance of powers” among the three branches of government, accusing the president of using “dubious constitutional theories” to exert authority unchecked by Congress.

Mr. Bush “has taken the notion of separation of powers, which I think is an idea that has proved its worth over several centuries, and tried to eviscerate it,” Reed said as he and fellow Democratic Sen. Sheldon Whitehouse spoke to the Federal Bar Association’s Rhode Island chapter during a breakfast meeting at the Providence Biltmore Hotel.

“He has attempted to assert this notion of the unitary president which is, in many respects, above the Constitution,” Reed said. “That has been a very dangerous trend, which if we do not effectively push back on it, will leave us much the worse.”

Reed, a lawyer and member of the Senate Armed Services Committee, said that after three administrations and 16 years in Washington, he is struck by the various ways that Mr. Bush, a Republican, has extended his authority.

Since 2001, Mr. Bush has used 152 “signing statements” to reserve the right to ignore or reinterpret measures that he has signed into law, Reed said. Also, Mr. Bush has used executive orders and legal opinions to assert his power, and he has ignored “bona fide” requests from Congress for information, he said.

“All of these, I think, raise the serious question of: Where is the executive going?” Reed said. “I believe that we need serious checks and balances on the president. I think it’s not only just to demonstrate the prerogative of the Congress, but also it provides for much better government.”

During his eight years in office, former Democratic President Bill Clinton issued 70 signing statements, “but they never amounted to a frontal assault on provisions of law declaring them to be unexecutable by the president or effectively voided by the president,” Reed said.

Of the 152 signing statements issued by Mr. Bush, 118 “contain some type of constitutional objection — much, much more than any other president,” Reed said. Mr. Bush’s signing statements call into question a thousand “distinct provisions of law,” he said. Many deal with the “war on terror,” but they also involve affirmative-action programs and even statistics compiled by executive agencies, he said.

Reed said he hopes the administration is realizing that congressional oversight can be a help and not a hindrance.

“One of the sad facts of the whole operation in Iraq is that there was no serious congressional review of any of the plans for occupation,” Reed said. “The Congress — the Republican Congress — was simply supine. And as a result, there was no plan.”

Since taking control of Congress, Democrats have tried to increase the level of oversight, Reed said. But he predicted the battle will continue during the remainder of the Bush administration and the issue will come up among presidential candidates.

“I hope the new administration, of whatever party, comes into office with the view that this is a government of laws — not a government of presidential prerogative,” Reed said. And he told the audience, “The federal bar is crucial in this whole debate, both as individual advocates, as members of the court, as judges.”

THE WHITE HOUSE media-affairs office did not return calls seeking comment yesterday.

Whitehouse, who defeated Republican Lincoln D. Chafee in last November’s election, devoted much of his speech to what it’s like to be a new senator.

But he also addressed a recent amendment to the Foreign Intelligence Surveillance Act, saying, “In August, the Bush administration whipped up a colossal stampede just as we were leaving, and they pushed through a really embarrassing piece of legislation, from the Senate’s point of view — the so-called Protect America Act.”

Whitehouse said the act “withdrew from statutory oversight the executive branch’s surveillance of Americans when they are ‘reasonably believed to be outside the United States.’ What remained to protect American citizens was an executive order, which provides that the attorney general can determine you are an agent of a foreign power, and if he has done so, then you may be surveilled but not otherwise.”

Whitehouse, a member of the Senate Judiciary Committee and the Select Committee on Intelligence, said he has reviewed Office of Legal Counsel opinions that assert the president is not bound by executive orders. Those opinions advance the legal theory that if the president does not follow an executive order, then he is implicitly waiving the order, he said. “And when you do that, you are under no obligation to disclose what you have done,” he said.

So under that legal theory, the president can have “a posted executive order and a plan operating in clear violation of it running at the same time,” and the public would never know about it, Whitehouse said.

When the Foreign Intelligence Surveillance Act amendment came up, administration officials said an executive order protects Americans when they’re abroad, but that’s “pretty thin gruel if that doesn’t constrain the president,” Whitehouse said.

Whitehouse, a former U.S. Attorney and Rhode Island attorney general, said he has experience in obtaining court orders for surveillance and wire taps of Americans inside the country, and it’s a good model.

“It really works pretty well in the real world,” he said. “You don’t have to worry that everything is going to go wrong if the surveillance folks are obliged to get orders from the [Foreign Intelligence Surveillance Act] court before they target Americans when they are abroad.”

But since August, Whitehouse said, “we have been at a situation in which any American abroad — whether you are going to visit your aunt in Ireland, whether you are taking your family on vacation to the Caribbean, whether you are going on business over the border into Canada, whether you are a soldier serving our country in uniform in Iraq — you are under no statutory protection from having your calls listened into, your Blackberry messages surveilled. Except, of course, the executive order, which is waivable if the president is doing something different.”

In August, the White House issued a “fact sheet” about the Protect America Act, saying it gives “intelligence professionals the tools they urgently need to gather information about our enemies, while protecting the civil liberties of Americans.” It said, “The government should not have to obtain a court order to conduct surveillance on foreign intelligence targets located in foreign countries.”

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