No way. In general, the excesses of the Bush II administration can be dealt with without permanently infringing on executive power. You don’t need provocative signing statements to be an effective president. And as Jack Goldsmith argues, referring issues like detainee treatment to Congress can actually enhance presidential authority. But what of a new Clinton administration’s (or any other Democratic candidate, for that matter) stance on executive power generally? The term “unitary executive” is now so toxic that it may have to be jettisoned. But adopting a cautious approach to executive power would simply repeat the mistakes of Clinton I.

George W. Bush is now in the midst of trying to ensure his legacy. His speech this Friday at the Conservative Political Action Committee made clear that he sees the future direction of the Republican party as continuing what he regards as his signature policies: demanding lower taxes appointing conservative judges, increasing spending on defense, and fighting the war on terror, which, for Bush, means continuing the war in Iraq and the military occupation of Iraq indefinitely. Put another way, Bush's speech put down a marker that if John McCain or any other Republican wants to be elected in 2008, Bush expects it will be by a continuation of his basic policies-- a third term of the George W. Bush Administration. It is worth noting that on almost all of the issues just mentioned, John McCain appears to be following Bush.

The Republicans, now divided, are trying to put the Reagan coalition together again. Bush's advice is: do it my way. Use my Presidency and its commitments-- low taxes, a conservative judiciary, and national security in an age of terrorism as the party's mantra going forward. To know what the Republicans stand for, look at what I stand for.

As Laura notes below, in his most recent signing statement the President has reserved the authority to disregard several "provisions" of the National Defense Authorization Act for Fiscal Year 2008.

In response to questions from Senator Specter concerning when, if at all, the President may rely on his Article II authorities to decline to abide by statutes or treaties, the Attorney General testified this morning that "I can't contemplate any situation in which this President would assert Article II authority to do something that the law forbids."

Jack and Eric Posner have a new Bloggingheads episode up, dealing principally with Bush's aggrandizements of executive power. Characteristically excellent and provocative, although supiciously truncated at the end. . .

I have some minor quibbles, however:

Jack says at one point that all Presidents since Nixon have claimed that the War Powers Resolution is unconstitutional. To the extent Jack is referring to the principal provision of the WPR, prohibiting the President from engaging in military hostilities for more than 90 days without congressional authorization, the notion that Presidents have uniformly condemned its constitutionality is often asserted, but that don't make it true. The statute is plainly constitutional, in my humble opinion; but more to the point, it's simply not the case that every President has claimed it's unconstitutional. Nixon did so before the law was enacted; Reagan suggested it at one point; and John Yoo (Bush's surrogate, presumably) stated it in his September 25, 2001 memo. But that's it. The Carter Administration, for instance, specifically concluded that it was constitutional, and the Clinton Administration carefully avoided saying otherwise (going to great trouble, for instance, to try to argue that the WPR was satisfied in the case of Kosovo).

Dear Senator McCain:

The White House has now admitted that the United States has waterboarded, that President Bush believes the practice is not torture, and that it violates neither the anti-torture statute, the McCain Amendment (which you sponsored) nor the Military Commissions Act of 2006 (which you voted for).

Will you condemn the White House for its latest admission? Will you say to the President what you said to Rudy Giuliani back in October?

"All I can say is that it was used in the Spanish Inquisition, it was used in Pol Pot’s genocide in Cambodia, and there are reports that it is being used against Buddhist monks today," Mr. McCain, who spent more than five years in a North Vietnamese prison camp, said in a telephone interview.

Of presidential candidates like Mr. Giuliani, who say that they are unsure whether waterboarding is torture, Mr. McCain said: "They should know what it is. It is not a complicated procedure. It is torture."

As Marty has detailed in multiple posts (including below), the Bush Administration has argued that water boarding is not "torture," and it has argued that water boarding is not "illegal" if a Justice Department official so opines.

In conjunction with those arguments, the Bush Administration also appears to suggest that whether water boarding constitutes "torture" depends not only on the water boarding itself but on the urgency of the situation. By this reasoning, a water boarding session under urgent circumstances is not "torture," while the same water boarding under less dire circumstances is "torture."

The Administration's position is described as follows:

The White House on Wednesday defended the use of the interrogation technique known as waterboarding, saying it is legal — not torture as critics argue — and has saved American lives.

President Bush could authorize waterboarding for future terrorism suspects if certain criteria are met, a spokesman said....

Commissioner of Baseball was the job that George W. Bush really wanted. Because Bud Selig, while owner of the Milwaukee Brewers, insisted on converting his position as interim baseball commissioner into permanent commissioner, he prevented George W. Bush from getting his dream job. As a result, Bush had to settle for second best, and it's clear his heart hasn't really been in it.

Had Selig stepped down, Commissioner Bush, a recovered "heavy drinker," would certainly have wanted to crack down on the merest hint of misuse of drugs by baseball players. And, as baseball commissioner, he wouldn't have invaded Iraq, legitimized torture and shredded the Constitution. And who knows, President Gore might served only one term and the Republicans might have kept control of Congress, so everybody's a winner.

Can the President disregard the torture statute, or the Uniform Code of Military Justice, if he concludes that the restrictions in such statutes make the successful prosecution of an armed conflict more difficult? Is FISA unconstitutional as applied to the war against al Qaeda? Can the President disregard the Geneva Conventions? The Habeas Act? Legislative restrictions on detention, interrogation, combat, etc.?

Today President Bush vetoed an intelligence authorization bill which would have required the CIA to abide by the Army Field Manual. The Army Field Manual outlaws waterboarding and a variety of other coercive techniques that the Administration euphemistically calls "enhanced interrogation techniques." The White House announced previously that it had waterboarded people before and might do so again in the future. Bush's veto is, in effect, an attempt to retain the option to violate the Geneva Conventions, the Federal Anti-Torture statute, and the McCain Amendment. He would only retain this option, however, because his lawyers have made unreasonable interpretations of U.S. law to conclude that the most egregious of these techniques-- including waterboarding-- are lawful, instead of what they actually are: violations of federal law and breaches of Geneva.

I don't want to distract our readers from the very important story about the Administration's stonewalling of the 9/11 Commission -- read about the New York Times's essential story and the Zelikow Report here -- but this is very much worth your attention, too:

Continuing his invaluable work, Charlie Savage of the Boston Globe today publishes responses of nine presidential candidates to a series of questions he posed about the topics that have dominated this blog since 2004. I'll add some highlights here shortly -- in the meantime, go read the responses.

In a word, no.

It is true that the Administration's most extreme theories of the Presidency have been rebuffed both in the courts and in public opinion. But the more important question is whether the next President will find him or herself significantly limited in what he or she seeks to do because of the Bush Administration's failures. The answer to that question is: almost certainly not.

Senate Majority Leader Harry Reid and Virginia Senator Jim Webb think they have found a solution to the problem of unconstitutional recess appointments: every three or so business days during the Thanksgiving break, they will convene "pro forma" sessions of the Senate, lasting only a minute or two. (The schedule was announced by Senator Webb on Monday.) They think this will prevent the President from appointing officers during this intra-session adjournment.

Not even the Shadow knows.

There has been a spate of stories in recent days endlessly recounting, parsing and debating a long series of statements by Senator McCain and his campaign about the extremely important question of whether the NSA's domestic surveillance program was unlawful or whether, instead, the President has the constitutional authority to disregard limits on electronic surveillance that Congress imposed in the Foreign Intelligence Surveillance Act (FISA). See, for example, Glenn Greenwald's, Charlie Savage's, and Orin Kerr's accounts.

The whole, sordid timeline is provided in this Jake Tapper blogpost today, in which Jake appends the McCain campaign's latest, even-more-ambiguous flip-flop.

The President just signed the Defense Authorization Act, which has two provisions that are relevant to contractor accountability. The first, section 841, added through an amendment sponsored by Senators Webb and McCaskill, would establish an independent commission to study the waste, fraud, and abuse in wartime contracting. The second, section 846, would improve whistleblower protection for contractor employees who report abuses by contractors.

Senator Schumer has a very thoughtful Op-Ed in the Times today about why he's voting to confirm Judge Mukasey. The centerpiece of the editorial is this:

Mike McConnell's call for immunity for telecom companies in today's Washington Post would be far more persuasive if we didn't recall why the issue arises in the first place. The Bush Administration repeatedly violated FISA and told telecom companies that it was ok to do so based on a crazy constitutional theory that the President couldn't be bound by the law.

This speech by Senator Sheldon Whitehouse accuses the Bush Administration of dictatorial powers. The Senator read classified OLC opinions that stated that the President is not bound by previous executive orders, that the President can determine for himself how they apply and whether to revoke them, that the President can waive orders by merely disregarding them in practice, and that the Justice Department must obey the President's determinations with respect to the operations of Executive Orders.

The second part of my article with David Barron on the President's authority to disregard congressional limitations on the conduct of war is now available online here. (First part is here.) The abstract:
Over the past half-century, discussions of constitutional war powers have focused on the scope of the President’s “inherent” power as Commander in Chief to act in the absence of congressional authorization. Professors Barron and Lederman argue that attention should now shift to the fundamental question of whether and when the President may exercise Article II war powers in contravention of congressional limitations, when the President’s authority as Commander in Chief is at its “lowest ebb.” This Article is the second part of a two-part effort to determine how the constitutional argument concerning such preclusive executive war powers is best conceived.

Douglas Kmiec is a principled conservative, former head of the OLC under two Republican Administrations. Here is what he had to say about "Law and War":

There is probably no more important executive power topic than the relation between law and war. For example, Chris Matthews asked Governor Romney whether he would need the authorization of Congress to take military action against Iran’s nuclear facilities. Soundly, the Governor responded that his overriding consideration as President of the United States would be to do what is "in the best interests of the United States to protect us against a potential threat." However, because the Governor also commented that " he would consult legal counsel on the range of his available authority," he has been taking some flak.

This criticism is wholly unwarranted....

A story in today's Times about George W. Bush's encounters with relatives of slain soldiers includes the following description of those meetings: "God is a frequent topic. Robert Lehmiller, also of Salt Lake City, says the president brought religion into the conversation, telling him, “If you truly believe the Scriptures, you will see your son again.” Although I probably should, I can't refrain from placing this comment in the context of the alleged belief of Islamicist suicide bombers that they will reach paradise quickly (and be greeted by 72 virgins). That is, I presume that for most of us that belief is just one more sign of irrational fanaticism. But what should we think of what presumably is the far more common belief in the US that there is indeed an afterlife in which one will be reunited with those one loved?

In a letter written yesterday to the Chair of the House Intelligence Committee, Attorney General Mukasey and Director of Intelligence McConnell alarmingly reveal that the expiration of the Protect America Act one week ago has caused us to "lose intelligence information this past week," has led some "partners" (i.e., telecom companies) to "delay[] or refuse[] compliance with our requests to initiate new surveillances of terrorists and other foreign intelligence targets under existing directives," and "has led directly to a degraded intelligence capability."

Well, Attorney General Mukasey testified that he would try to be less adversarial toward Congress -- less inclined to articulate constitutional objections where to do so would only inflame relations.

Yesterday's signing statement therefore may well be the state of things to come. My colleagues and I have complained that, in earlier signing statements, the President was insufficiently transparent about the nature of his constitutional objections, and unclear about whether and when he would disregard statutory commands on constitutional grounds. The new formulation, however, might well make one yearn for those good ol' days of relative candor in signing statement constitutional objections. Here's how it reads:

While everyone seems to be focused on which sermons Barack Obama heard from his minister and what the Second Amendment means, the United States, and by extension the world, is on the brink of a financial melt-down, which the Federal Reserve Board is doing its best to prevent.

The Fed is now taking emergency actions-- for example approving a 30 billion dollar loan to J.P. Morgan to purchase Bear Stearns-- that it would not dream of taking in ordinary circumstances. In essence, the Fed is trading loans that are very low risk for loans that are very high risk and while simultaneously taking control of Bear Stearn's portfolio in order to protect itself. It has also announced that it will offer loans to other similarly endangered Wall Street investment firms.

You may have read that the Department of Justice's Office of Responsibility has now been cleared to conduct an investigation of the role of Department attorneys in relation to the NSA domestic wiretapping program(s).

The letter from House members that triggered the investigation asked OPR to investigate a bunch of factual, historical questions about how the program was instituted, justified and changed. It's not clear to me, however, that such an investigation is within OPR's legal mandate.

Today the White House admitted that it violated the anti-torture statute and the War Crimes Act and that it may seek to do so in the future.

What? Did it really say that?

The catch is that the White House admitted it was waterboarding but didn't admit that it was either torture or a war crime. The Associated Press reports:
The White House on Wednesday defended the use of the interrogation technique known as waterboarding, saying it is legal — not torture as critics argue — and has saved American lives.

President Bush could authorize waterboarding for future terrorism suspects if certain criteria are met, a spokesman said.

A day earlier, the Bush administration acknowledged publicly for the first time that the tactic was used by U.S. government questioners on three terror suspects. Testifying before Congress, CIA Director Michael Hayden said Khalid Sheikh Mohammed, Abu Zubayda and Abd al-Rahim al-Nashiri were waterboarded in 2002 and 2003. . . .

The Red Sox were honored at the White House by President Bush on Wednesday for their second championship in four years. I loved these two photos: "My fellow Americans, I have seized power in a bloodless coup today. You can now call me President Kick Ass of the F**k Yeah Brigade!"

"I knew if I delivered all of you in Red Sox Nation another championship, you'd make me president!"

More photos of the Red Sox meeting with President Bush, courtesy of the Boston Globe:

http://www.boston.com/sports/baseball/redsox/gallery/02_27_08_white_house_visit/

From Senator Schumer's explanation of why he will vote for Judge Mukasey:
This afternoon, I met with Judge Michael Mukasey one more time. I requested the meeting to address, in person, some of my concerns. The judge made clear to me that were Congress to pass a law banning certain interrogation techniques, we would clearly be acting within our constitutional authority. And he flatly told me that the president would have absolutely no legal authority to ignore such a law, not even under some theory of inherent authority under Article II of the Constitution. He also pledged to enforce such a law and repeated his willingness to leave office rather than participate in a violation of law.