Inaction Equals ‘Pocket Veto’
Military Commission Act Not Lawfully Passed
Tue Oct 24, 2006 21:14

UPDATE: H.R. 6166: Military Commissions Act of 2006
Military Commission Act Not Lawfully Passed

President’s Inaction Equals ‘Pocket Veto’
by Pat Shannan

Talk show host Alex Jones’ brief interview last week with an
unknown caller has sent constitutionists and legal
researchers scurrying for the law books.

“The Military Commission Act is not law!” the man barked.
“The ‘pocket veto’ clause of the constitution has already
nullified it.”

He then pointed out to the national radio audience exactly
what the part about “pocket veto” in Article One, Section 7
of the U. S. Constitution means. Indeed, it appears that
President Bush’s signing of the infamous “6166,” which in
effect eliminates the 4th Amendment protection of citizens
in their homes and a whole lot more, is moot. He was too

Now Jones and many others are wondering, who in an official
capacity is going to point this out and enforce it?

Here is what the law says and what happens when a sitting
president sticks a bill passed by congress into his pocket
instead of signing it and sending it back:

A Pocket Veto occurs when the President fails to sign a bill
within the 10 days allowed by the Constitution.

Congress must be in adjournment in order for a pocket veto
to take effect.

If Congress is in session and the president fails to sign
the bill, it becomes law without his signature.

Now to the current specifics.

From the U.S. Constitution Article 1, Section 7: "...If any
Bill shall not be returned by the President within ten Days
(Sundays excepted) after it shall have been presented to
him, the Same shall be a Law, in like Manner as if he had
signed it, unless the Congress by their Adjournment prevents
its Return, in which Case it shall not be a Law."

Since Congress cannot vote while in adjournment, a pocket
veto cannot be overridden. A pocket veto is a legislative
maneuver in American federal lawmaking. The U.S.
Constitution requires the President to sign or veto any
legislation placed on his desk within ten days (not
including Sundays). If he does not, then it becomes law by
default. The one exception to this rule is if Congress
adjourns before the ten days are up. In such a case, the
bill does not become law; it is effectively, if not
actually, vetoed. Ignoring legislation, or "putting a bill
in one's pocket" until Congress adjourns is thus called a
pocket veto.

Congress passed 6166 on September 29th, presented it to the
President on October 10th, and adjourned on October 13th.
Bush signed it on October 17th, the week after Congress had
adjourned, thereby rendering it “vetoed” by constitutional

On September 6, 2006, President Bush asked Congress to pass
the Military Commission Act of 2006. This Act – among other
things – sought to re-define U.S. obligations under Common
Article 3 of the Geneva Conventions, international treaties
signed by every country in the world. Common Article 3
places an absolute prohibition on inhumane treatment of
detainees during an armed conflict.

Specifically, the President wanted Congress to replace the
absolute prohibition on inhumane treatment of Common Article
3 with a "flexible" standard, which would assess on a case-
by-case basis whether particular conduct would amount to
cruel, inhuman or degrading treatment. Human Rights First
criticized the Administration's proposal for adding
ambiguity to an otherwise clear standard of Common Article
3, and would open the door to more Abu Ghraib-style abuses.

In response to the administration's proposal, more than 45
retired senior military leaders wrote to members of the U.S.
Senate expressing their opposition to redefining Common
Article 3 on the grounds that it would compromise the safety
of U.S. Service men and women. They were joined by Former
Secretary of State Colin Powell and former U.S. Chairmen of
the Joint Chiefs of Staff John Vessey, Hugh Shelton, and
William Crowe, who also sent letters expressing their
opposition to redefining Common Article 3.

Spearheaded by Republican Senators John McCain, John Warner,
and Lindsey Graham, the Senate Armed Services Committee
passed an alternative bill, sponsored by McCain, Warner, and
Graham, that preserves Common Article 3. The Administration
then agreed to negotiate with the key Senators, and a
compromise was reached on September 21, which preserved the
meaning and requirements of Common Article 3. Human Rights
First welcomed this aspect of the compromise. Human Rights
First opposed the final version of the Military Commissions
Act, however, because it contained a number of provisions
that raised serious concerns about compliance with the
Geneva Conventions and with fundamental fair trial and due
process principles. Among the most troubling aspects of the
Military Commissions Act are provisions that purport to:

Grant unprecedented and unchecked authority to the Executive
Branch to label as “unlawful enemy combatants”, and possibly
to detain indefinitely, an overly broad range of people,
including U.S. citizens and legal permanent residents inside
the United States

Deny independent judicial review, through habeas, of
detentions of U.S. legal permanent residents and non-

Limit the sources of law to which the courts may look and
the scope of review on appeal

Narrow the scope of the War Crimes Act and seek to eliminate
accountability for past violations of the law by the
president and his administration.

Permit evidence obtained through coercion to be used in the
military commission proceedings, with certain limitations.

Permit the introduction of classified evidence against the
accused even if the accused has not had the opportunity to
review and challenge the “sources, methods, or activities”
by which the government acquired the evidence.

Restrict full disclosure to the accused of exculpatory

Give the Secretary of Defense authority to deviate from time-
tested military justice standards for fair trials

Courts have never fully clarified when an adjournment by
Congress would "prevent" the President from returning a
vetoed bill. Some Presidents have interpreted the
Constitution to restrict the pocket veto to the adjournment
sine die of Congress at the end of the second session of the
two-year Congressional term, while others interpreted it to
allow intersession and intrasession pocket vetoes. In 1929,
the United States Supreme Court ruled that a bill had to be
returned to the chamber while it is in session and capable
of work. A three-day recess of the Senate was considered a
short enough time that the Senate could still act with
"reasonable promptitude" on the veto. However, a five-month
adjournment would be a long enough period to enable a pocket
veto. Within those constraints, there still exists some
ambiguity; Presidents have been reluctant to pursue disputed
pocket vetoes to the Supreme Court for fear of an adverse
ruling that would serve as a precedent in future cases[1].

For matters regarding the authority of the federal
government, the place to start the analysis is with the
United States Code. In 1 U.S.C. 106a, we find the

Section 106a. Promulgation of laws

Whenever a bill, order, resolution, or vote of the Senate
and House of Representatives, having been approved by the
President, or not having been returned by him with his
objections, becomes a law or takes effect, it shall
forthwith be received by the Archivist of the United States
from the President; and whenever a bill, order, resolution,
or vote is returned by the President with his objections,
and, on being reconsidered, is agreed to be passed, and is
approved by two-thirds of both Houses of Congress, and
thereby becomes a law or takes effect, it shall be received
by the Archivist of the United States from the President of
the Senate, or Speaker of the House of Representatives in
whichsoever House it shall last have been so approved, and
he shall carefully preserve the originals.

Attorney and constitutional expert Harmon Taylor of Dallas,
Texas harbors some consternation about the federal courts
disregarding the constitution in recent years and ruling on
federal statutes and court precedent.

He points out, “This language is curiously silent regarding
the "10-day Rule" set forth in Art. I, 7, cl. 2. It is
also noticeably silent about adjournment and any effect that
adjournment may have on the "’10-day Rule.’

”Therefore, the next source to check is judicial
construction, and the best starting place for that is with
Supreme Court opinions. While Clinton v. City of New York,
524 U.S. 417 (1998), specifically addresses and thwarts
executive law-making efforts via the so-called "Line Item
Veto," and, so, is not directly on point with our current
question, it's very helpful on the applicability of Art. I,
7, cl. 2, generally, thus, the "10-day Rule," in
particular. The Court cites the law-making procedure in
full in n.28. Clinton, 524 U.S. at 438-39 n.28. Even more
importantly, the Court identifies that the "veto" power
being analyzed is read in terms of the whole context. This
is the point raised by n.29.

Applying that to the present circumstance, it's difficult to
picture how the Supreme Court would read the whole of Art.
I, 7, cl. 2 for purposes of "veto" analysis but then read
only part of it for purposes of a question under the "10-day
Rule." So, where all of Art. I, 7, cl. 2 is material,
then both the "10-day Rule" and "adjournment" are material
procedural facts in determining whether an act by the
"congress" and presented to the "president" actually
produced federal law.”

Taylor also pointed out to us that a separate new question
arises as to whether the congress may enact legislation
inconsistent with the Geneva Conventions to which the
federal government is a signatory. In the recent case of
Hamdan v. Rumsfeld, __ U.S. __, 126 S. Ct. 2749 (2006), the
Supreme Court clearly identified several variances between
the "military commission" process being utilized by the
present administration and the trial process contemplated by
the Geneva Convention. Should it turn out that the most
recent legislation implements that same, or a very similar,
"military commission" trial process, already characterized
by the Court as "illegal," then the question arises as to
whether legislation that strays from the Geneva Convention
standards is federal law.

“The answer may seem intuitively obvious,” Taylor said, “but
this one will take some additional study and reflection.
Your conclusions are correct, constitutionally speaking,” he
said, referring to President Bush’s delayed signing of the
bill, “but you can bet that the Supreme Court, if it comes
to that, will do everything it can to avoid making a
constitutionally based decision.”

Indeed. Even as the most amateurish constitutional
historians realize, we have not been able to keep the
republic Ben Franklin feared we could not 220 years ago.
Now it seems we may have to be concerned with that
piece of philosophy from Mao -- the one about
“Power coming out of the barrel of a gun.”


"Stay the course...... Pres. Bush" —Radio Your Way, Tue Oct 24 16:16;article=105656;title=APFN

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