Live by the Signing Statement, Die by the Signing Statement

Dahlia Lithwick has a great article at Slate today discussing the legal and practical ramifications of the Bush administration's love affair with the so-called signing statement. Her article got me thinking: what did the President say when he signed into law the USA Patriot Act, which contained a number of key amendments to the Foreign Intelligence Surveillance Act ("FISA")? Well, after a little bit of digging, I found a copy of the President's October 26, 2001 Remarks on the Signing the USA Patriot Act of 2001. Here are some key excerpts:

The changes, effective today, will help counter
a threat like no other our Nation has ever
faced. . . .

We're dealing with terrorists who operate by
highly sophisticated methods and
technologies, some of which were not even
available when our existing laws were
written. The bill before me takes account of
the new realities and dangers posed by
modern terrorists. It will help law
enforcement to identify, to dismantle, to
disrupt, and to punish terrorists before they
strike. . . .

Surveillance of communications is
another essential tool to pursue
and stop terrorists. The existing law
was written in the era of rotary
telephones. This new law I sign today
will allow surveillance of all
communications used by terrorists,
including e-mails, the Internet, and
cell phones. As of today, we'll be able
to better meet the technological
challenges posed by this
proliferation of communications
technology. . . .

This legislation is essential not only to
pursuing and punishing terrorists but also
preventing more atrocities in the hands of
the evil ones. This Government will enforce
this law with all the urgency of a nation
at war. . . .

It is now my honor to sign into law the
USA PATRIOT ACT of 2001.

Now keep in mind that the President made these remarks almost six weeks AFTER Congress passed the Authorization for the Use of Military Force ("AUMF"), the law which he now claims gave him the authority to conduct warrantless surveillance outside of FISA's framework. Yet in this signing statement, the President clearly indicates that until that day, Oct. 26, 2001, he lacked the authority to properly deal with the nature of the terrorist threat. Moreover, he makes it clear again and again that these amendments to FISA are intended to apply during wartime. In a weasely footnote in the DoJ's January 19 white paper, the administration suggests that the "USA PATRIOT ACT amendments made important corrections in the general application of FISA, but were not intended to define the precise incidents of military force that would be available to the President in prosecuting the current armed conflict against al Qaeda."

Could it be any clearer from reading this signing statement how entirely bogus that claim is? Clearly both Congress and the President considered FISA to be in effect and governing the use of domestic surveillance at the time the Patriot Act was passed. This was well after the passage of the AUMF. I hope the Senate Judiciary Committee asks Alberto Gonzales about this signing statement next week. I also hope they ask every single one of the questions Glenn Greenwald has posted at his site (see here, here, here).