Bush’s contention that he can ignore provisions of the Patriot
whose renewal he ushered last month, has drawn scrutiny. (Jim Young/ Reuters)
Especially since the mid-1980s, presidents have sometimes declared that they can ignore a provision of a bill because they believe it is unconstitutional.
Among the laws Bush said he can ignore are military rules and regulations, affirmative-action provisions, requirements that Congress be told about immigration services problems, ''whistle-blower" protections for nuclear regulatory officials, and safeguards against political interference in federally funded research.
Legal scholars say the scope and aggression of Bush's assertions that he can bypass laws represent a concerted effort to expand his power at the expense of Congress, upsetting the balance between the branches of government. The Constitution is clear in assigning to Congress the power to write the laws and to the president a duty ''to take care that the laws be faithfully executed." Bush, however, has repeatedly declared that he does not need to ''execute" a law he believes is unconstitutional.
Former administration officials contend that just because Bush reserves the right to disobey a law does not mean he is not enforcing it: In many cases, he is simply asserting his belief that a certain requirement encroaches on presidential power.
But with the disclosure of Bush's domestic spying program, in which he ignored a law requiring warrants to tap the phones of Americans, many legal specialists say Bush is hardly reluctant to bypass laws he believes he has the constitutional authority to override.Number of new statutes challenged
Far more than any predecessor, Bush has been aggressive about declaring his right to ignore vast swaths of laws -- many of which he says infringe on power he believes the Constitution assigns to him alone as the head of the executive branch or the commander in chief of the military.
Many legal scholars say they believe that Bush's theory about his own powers goes too far and that he is seizing for himself some of the law-making role of Congress and the Constitution-interpreting role of the courts.
Phillip Cooper, a Portland State University law professor who has studied the executive power claims Bush made during his first term, said Bush and his legal team have spent the past five years quietly working to concentrate ever more governmental power into the White House.
''There is no question that this administration has been involved in a very carefully thought-out, systematic process of expanding presidential power at the expense of the other branches of government," Cooper said. ''This is really big, very expansive, and very significant."
For the first five years of Bush's presidency, his legal claims attracted little attention in Congress or the media. Then, twice in recent months, Bush drew scrutiny after challenging new laws: a torture ban and a requirement that he give detailed reports to Congress about how he is using the Patriot Act. Bush administration spokesmen declined to make White House or Justice Department attorneys available to discuss any of Bush's challenges to the laws he has signed.
Instead, they referred a Globe reporter to their response to questions about Bush's position that he could ignore provisions of the Patriot Act. They said at the time that Bush was following a practice that has ''been used for several administrations" and that ''the president will faithfully execute the law in a manner that is consistent with the Constitution."
But the words ''in a manner that is consistent with the Constitution" are the catch, legal scholars say, because Bush is according himself the ultimate interpretation of the Constitution. And he is quietly exercising that authority to a degree that is unprecedented in US history.
Bush is the first president in modern history who has never vetoed a bill, giving Congress no chance to override his judgments. Instead, he has signed every bill that reached his desk, often inviting the legislation's sponsors to signing ceremonies at which he lavishes praise upon their work.
Then, after the media and the lawmakers have left the White House, Bush quietly files ''signing statements" -- official documents in which a president lays out his legal interpretation of a bill for the federal bureaucracy to follow when implementing the new law. The statements are recorded in the federal register.
In his signing statements, Bush has repeatedly asserted that the Constitution gives him the right to ignore numerous sections of the bills -- sometimes including provisions that were the subject of negotiations with Congress in order to get lawmakers to pass the bill. He has appended such statements to more than one of every 10 bills he has signed.
''He agrees to a compromise with members of Congress, and all of them are there for a public bill-signing ceremony, but then he takes back those compromises -- and more often than not, without the Congress or the press or the public knowing what has happened," said Christopher Kelley, a Miami University of Ohio political science professor who studies executive power.
The Constitution grants Congress the power to create armies, to declare war, to make rules for captured enemies, and ''to make rules for the government and regulation of the land and naval forces." But, citing his role as commander in chief, Bush says he can ignore any act of Congress that seeks to regulate the military.
On at least four occasions while Bush has been president, Congress has passed laws forbidding US troops from engaging in combat in Colombia, where the US military is advising the government in its struggle against narcotics-funded Marxist rebels.
Bush has also said he can bypass laws requiring him to tell Congress before diverting money from an authorized program in order to start a secret operation, such as the ''black sites" where suspected terrorists are secretly imprisoned.
Congress has also twice passed laws forbidding the military from using intelligence that was not ''lawfully collected," including any information on Americans that was gathered in violation of the Fourth Amendment's protections against unreasonable searches.
Congress first passed this provision in August 2004, when Bush's warrantless domestic spying program was still a secret, and passed it again after the program's existence was disclosed in December 2005.
On both occasions, Bush declared in signing statements that only he, as commander in chief, could decide whether such intelligence can be used by the military.
In October 2004, five months after the Abu Ghraib torture scandal in Iraq came to light, Congress passed a series of new rules and regulations for military prisons. Bush signed the provisions into law, then said he could ignore them all. One provision made clear that military lawyers can give their commanders independent advice on such issues as what would constitute torture. But Bush declared that military lawyers could not contradict his administration's lawyers.
Other provisions required the Pentagon to retrain military prison guards on the requirements for humane treatment of detainees under the Geneva Conventions, to perform background checks on civilian contractors in Iraq, and to ban such contractors from performing ''security, intelligence, law enforcement, and criminal justice functions." Bush reserved the right to ignore any of the requirements.
The new law also created the position of inspector general for Iraq. But Bush wrote in his signing statement that the inspector ''shall refrain" from investigating any intelligence or national security matter, or any crime the Pentagon says it prefers to investigate for itself.
Bush had placed similar limits on an inspector general position created by Congress in November 2003 for the initial stage of the US occupation of Iraq. The earlier law also empowered the inspector to notify Congress if a US official refused to cooperate. Bush said the inspector could not give any information to Congress without permission from the administration.
In December 2004, Congress passed an intelligence bill requiring the Justice Department to tell them how often, and in what situations, the FBI was using special national security wiretaps on US soil. The law also required the Justice Department to give oversight committees copies of administration memos outlining any new interpretations of domestic-spying laws. And it contained 11 other requirements for reports about such issues as civil liberties, security clearances, border security, and counternarcotics efforts.
Likewise, when Congress passed the law creating the Department of Homeland Security in 2002, it said oversight committees must be given information about vulnerabilities at chemical plants and the screening of checked bags at airports.
It also said Congress must be shown unaltered reports about problems with visa services prepared by a new immigration ombudsman. Bush asserted the right to withhold the information and alter the reports.
On several other occasions, Bush contended he could nullify laws creating ''whistle-blower" job protections for federal employees that would stop any attempt to fire them as punishment for telling a member of Congress about possible government wrongdoing.
When Congress passed a massive energy package in August, for example, it strengthened whistle-blower protections for employees at the Department of Energy and the Nuclear Regulatory Commission.
The provision was included because lawmakers feared that Bush appointees were intimidating nuclear specialists so they would not testify about safety issues related to a planned nuclear-waste repository at Yucca Mountain in Nevada -- a facility the administration supported, but both Republicans and Democrats from Nevada opposed.
When Bush signed the energy bill, he issued a signing statement declaring that the executive branch could ignore the whistle-blower protections.
Bush's statement did more than send a threatening message to federal energy specialists inclined to raise concerns with Congress; it also raised the possibility that Bush would not feel bound to obey similar whistle-blower laws that were on the books before he became president. His domestic spying program, for example, violated a surveillance law enacted 23 years before he took office.
David Golove, a New York University law professor who specializes in executive-power issues, said Bush has cast a cloud over ''the whole idea that there is a rule of law," because no one can be certain of which laws Bush thinks are valid and which he thinks he can ignore.
''Where you have a president who is willing to declare vast quantities of the legislation that is passed during his term unconstitutional, it implies that he also thinks a very significant amount of the other laws that were already on the books before he became president are also unconstitutional," Golove said.
Nonetheless, Bush has said in his signing statements that the Constitution lets him control any executive official, no matter what a statute passed by Congress might say.
Similarly, the Supreme Court has repeatedly upheld affirmative-action programs, as long as they do not include quotas. Most recently, in 2003, the court upheld a race-conscious university admissions program over the strong objections of Bush, who argued that such programs should be struck down as unconstitutional.
Yet despite the court's rulings, Bush has taken exception at least nine times to provisions that seek to ensure that minorities are represented among recipients of government jobs, contracts, and grants. Each time, he singled out the provisions, declaring that he would construe them ''in a manner consistent with" the Constitution's guarantee of ''equal protection" to all -- which some legal scholars say amounts to an argument that the affirmative-action provisions represent reverse discrimination against whites.
Golove said that to the extent Bush is interpreting the Constitution in defiance of the Supreme Court's precedents, he threatens to ''overturn the existing structures of constitutional law."
A president who ignores the court, backed by a Congress that is unwilling to challenge him, Golove said, can make the Constitution simply ''disappear."
Since the early 19th century, American presidents have occasionally signed a large bill while declaring that they would not enforce a specific provision they believed was unconstitutional. On rare occasions, historians say, presidents also issued signing statements interpreting a law and explaining any concerns about it.
But it was not until the mid-1980s, midway through the tenure of President Reagan, that it became common for the president to issue signing statements. The change came about after then-Attorney General Edwin Meese decided that signing statements could be used to increase the power of the president.
When interpreting an ambiguous law, courts often look at the statute's legislative history, debate and testimony, to see what Congress intended it to mean. Meese realized that recording what the president thought the law meant in a signing statement might increase a president's influence over future court rulings.
Under Meese's direction in 1986, a young Justice Department lawyer named Samuel A. Alito Jr. wrote a strategy memo about signing statements. It came to light in late 2005, after Bush named Alito to the Supreme Court.
In the memo, Alito predicted that Congress would resent the president's attempt to grab some of its power by seizing ''the last word on questions of interpretation." He suggested that Reagan's legal team should ''concentrate on points of true ambiguity, rather than issuing interpretations that may seem to conflict with those of Congress."
Many of the challenges involved longstanding legal ambiguities and points of conflict between the president and Congress.
Throughout the past two decades, for example, each president -- including the current one -- has objected to provisions requiring him to get permission from a congressional committee before taking action. The Supreme Court made clear in 1983 that only the full Congress can direct the executive branch to do things, but lawmakers have continued writing laws giving congressional committees such a role.
Still, Reagan, George H.W. Bush, and Clinton used the presidential veto instead of the signing statement if they had a serious problem with a bill, giving Congress a chance to override their decisions.
But the current President Bush has abandoned the veto entirely, as well as any semblance of the political caution that Alito counseled back in 1986. In just five years, Bush has challenged more than 750 new laws, by far a record for any president, while becoming the first president since Thomas Jefferson to stay so long in office without issuing a veto.
''What we haven't seen until this administration is the sheer number of objections that are being raised on every bill passed through the White House," said Kelley, who has studied presidential signing statements through history. ''That is what is staggering. The numbers are well out of the norm from any previous administration."
Defenders say the fact that Bush is reserving the right to disobey the laws does not necessarily mean he has gone on to disobey them.
Indeed, in some cases, the administration has ended up following laws that Bush said he could bypass. For example, citing his power to ''withhold information" in September 2002, Bush declared that he could ignore a law requiring the State Department to list the number of overseas deaths of US citizens in foreign countries. Nevertheless, the department has still put the list on its website.
Jack Goldsmith, a Harvard Law School professor who until last year oversaw the Justice Department's Office of Legal Counsel for the administration, said the statements do not change the law; they just let people know how the president is interpreting it.
''Nobody reads them," said Goldsmith. ''They have no significance. Nothing in the world changes by the publication of a signing statement. The statements merely serve as public notice about how the administration is interpreting the law. Criticism of this practice is surprising, since the usual complaint is that the administration is too secretive in its legal interpretations."
Lower-level officials will follow the president's instructions even when his understanding of a law conflicts with the clear intent of Congress, crafting policies that may endure long after Bush leaves office, Cooper said.
''Years down the road, people will not understand why the policy doesn't look like the legislation," he said.
And in many cases, critics contend, there is no way to know whether the administration is violating laws -- or merely preserving the right to do so.
Many of the laws Bush has challenged involve national security, where it is almost impossible to verify what the government is doing. And since the disclosure of Bush's domestic spying program, many people have expressed alarm about his sweeping claims of the authority to violate laws.
In January, after the Globe first wrote about Bush's contention that he could disobey the torture ban, three Republicans who were the bill's principal sponsors in the Senate -- John McCain of Arizona, John W. Warner of Virginia, and Lindsey O. Graham of South Carolina -- all publicly rebuked the president.
''We believe the president understands Congress's intent in passing, by very large majorities, legislation governing the treatment of detainees," McCain and Warner said in a joint statement. ''The Congress declined when asked by administration officials to include a presidential waiver of the restrictions included in our legislation."
Added Graham: ''I do not believe that any political figure in the country has the ability to set aside any . . . law of armed conflict that we have adopted or treaties that we have ratified."
And in March, when the Globe first wrote about Bush's contention that he could ignore the oversight provisions of the Patriot Act, several Democrats lodged complaints.
Senator Patrick J. Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee, accused Bush of trying to ''cherry-pick the laws he decides he wants to follow."
And Representatives Jane Harman of California and John Conyers Jr. of Michigan -- the ranking Democrats on the House Intelligence and Judiciary committees, respectively -- sent a letter to Attorney General Alberto R. Gonzales demanding that Bush rescind his claim and abide by the law.
''Many members who supported the final law did so based upon the guarantee of additional reporting and oversight," they wrote. ''The administration cannot, after the fact, unilaterally repeal provisions of the law implementing such oversight. . . . Once the president signs a bill, he and all of us are bound by it."
The courts have little chance of reviewing Bush's assertions, especially in the secret realm of national security matters.
''There can't be judicial review if nobody knows about it," said Neil Kinkopf, a Georgia State law professor who was a Justice Department official in the Clinton administration. ''And if they avoid judicial review, they avoid having their constitutional theories rebuked."
Without court involvement, only Congress can check a president who goes too far. But Bush's fellow Republicans control both chambers, and they have shown limited interest in launching the kind of oversight that could damage their party.
''The president is daring Congress to act against his positions, and they're not taking action because they don't want to appear to be too critical of the president, given that their own fortunes are tied to his because they are all Republicans," said Jack Beermann, a Boston University law professor. ''Oversight gets much reduced in a situation where the president and Congress are controlled by the same party."
Said Golove, the New York University law professor: ''Bush has essentially said that 'We're the executive branch and we're going to carry this law out as we please, and if Congress wants to impeach us, go ahead and try it.' "
Bruce Fein, a deputy attorney general in the Reagan administration, said the American system of government relies upon the leaders of each branch ''to exercise some self-restraint." But Bush has declared himself the sole judge of his own powers, he said, and then ruled for himself every time.
''This is an attempt by the president to have the final word on his own constitutional powers, which eliminates the checks and balances that keep the country a democracy," Fein said. ''There is no way for an independent judiciary to check his assertions of power, and Congress isn't doing it, either. So this is moving us toward an unlimited executive power." © Copyright 2006 Globe Newspaper Company.
Examples of the president's signing statements
Since taking office in 2001, President Bush has issued signing statements on more than 750 new laws, declaring that he has the power to set aside the laws when they conflict with his legal interpretation of the Constitution. The federal government is instructed to follow the statements when it enforces the laws. Here are 10 examples and the dates Bush signed them:
March 9: Justice Department officials must give reports to Congress by certain dates on how the FBI is using the USA Patriot Act to search homes and secretly seize papers.
Bush's signing statement: The president can order Justice Department officials to withhold any information from Congress if he decides it could impair national security or executive branch operations.
Dec. 30, 2005: US interrogators cannot torture prisoners or otherwise subject them to cruel, inhuman, and degrading treatment.
Bush's signing statement: The president, as commander in chief, can waive the torture ban if he decides that harsh interrogation techniques will assist in preventing terrorist attacks.
Dec. 30: When requested, scientific information ''prepared by government researchers and scientists shall be transmitted [to Congress] uncensored and without delay."
Bush's signing statement: The president can tell researchers to withhold any information from Congress if he decides its disclosure could impair foreign relations, national security, or the workings of the executive branch.
Aug. 8: The Department of Energy, the Nuclear Regulatory Commission and its contractors may not fire or otherwise punish an employee whistle-blower who tells Congress about possible wrongdoing.
Bush's signing statement: The president or his appointees will determine whether employees of the Department of Energy and the Nuclear Regulatory Commission can give information to Congress.
Dec. 23, 2004: Forbids US troops in Colombia from participating in any combat against rebels, except in cases of self-defense. Caps the number of US troops allowed in Colombia at 800.
Bush's signing statement: Only the president, as commander in chief, can place restrictions on the use of US armed forces, so the executive branch will construe the law ''as advisory in nature."
Dec. 17: The new national intelligence director shall recruit and train women and minorities to be spies, analysts, and translators in order to ensure diversity in the intelligence community.
Bush's signing statement: The executive branch shall construe the law in a manner consistent with a constitutional clause guaranteeing ''equal protection" for all. (In 2003, the Bush administration argued against race-conscious affirmative-action programs in a Supreme Court case. The court rejected Bush's view.)
Oct. 29: Defense Department personnel are prohibited from interfering with the ability of military lawyers to give independent legal advice to their commanders.
Bush's signing statement: All military attorneys are bound to follow legal conclusions reached by the administration's lawyers in the Justice Department and the Pentagon when giving advice to their commanders.
Aug. 5: The military cannot add to its files any illegally gathered intelligence, including information obtained about Americans in violation of the Fourth Amendment's protection against unreasonable searches.
Bush's signing statement: Only the president, as commander in chief, can tell the military whether or not it can use any specific piece of intelligence.
Nov. 6, 2003: US officials in Iraq cannot prevent an inspector general for the Coalition Provisional Authority from carrying out any investigation. The inspector general must tell Congress if officials refuse to cooperate with his inquiries.
Bush's signing statement: The inspector general ''shall refrain" from investigating anything involving sensitive plans, intelligence, national security, or anything already being investigated by the Pentagon. The inspector cannot tell Congress anything if the president decides that disclosing the information would impair foreign relations, national security, or executive branch operations.
Nov. 5, 2002: Creates an Institute of Education Sciences whose director may conduct and publish research ''without the approval of the secretary [of education] or any other office of the department."
Bush's signing statement: The president has the power to control the actions of all executive branch officials, so ''the director of the Institute of Education Sciences shall [be] subject to the supervision and direction of the secretary of education."
SOURCE: Charlie Savage
© Copyright 2006 Globe Newspaper Company.
By Rick Holmes:
President George W. Bush signed the 9/11 bill into law on Aug. 3. Then, as is his habit, Bush issued a "signing statement" that was anything but: "I will also continue to work with Congress to ensure the workability of the cargo screening provisions in a way that increases our vigilance on homeland security while ensuring the continuance of vital commerce."
In other words, the executive branch will follow the law if it can figure out a way to do it without inconveniencing FedEx and UPS.
This is something Bush has been doing for years. Congress sends him a bill appropriating funds for the war in Iraq but requiring timely progress reports, he signs the bill, then later adds a signing statement saying he might not provide the progress reports.
After long, hard debate, Congress sends the president a bill prohibiting the use of torture against detainees in U.S. custody, he signs it, then later adds a signing statement reserving his right to order whatever interrogation techniques he deems fit.
Charlie Savage, the Boston Globe reporter who won a Pulitzer Prize for blowing the whistle on this practice, estimates Bush has used signing statements to excuse himself from enforcing more than 1,100 provisions of laws he has signed. All presidents before Bush issued signing statements challenging 600 sections of laws.
There are a few parts of the Constitution experts argue about 200 years later, but Article II, Section 3 seems perfectly clear: The president "shall take Care that the Laws be faithfully executed."
The signing statements are part of a pattern. At every turn, Bush and Cheney have looked for opportunities to strengthen executive powers, usually by reducing the powers previously vested in Congress and the judiciary.
Markey, who is chairman of the House Committee on Telecommunications, has been trying for years to figure out how the National Security Administration's system of domestic wiretapping works. He knows AT&T and other telecom companies have given the NSA and/or other intelligence agencies back-door access to the servers that handle telephone and e-mail traffic. But whose e-mails are they reading, how are conversations monitored, and who is in charge? Every time Markey tries to ask, even in Congress' top-secret cone-of-silence room, the administration invokes the "state secrets" law and won't say a thing.
If things don't go from bad to disastrous in Iraq, Iran, Afghanistan and Pakistan - a big if - Bush's most enduring legacy may be the distortion of the Constitution's balance of powers and the return of the imperial presidency. That's not by accident. Strengthening executive power has been a goal of Dick Cheney's since he served in the Ford White House and saw the power Nixon had accumulated slip away.
What can be done about it?
One constitutional remedy is impeachment, and most serious observers would agree that Bush has provided plenty of grounds. Just holding hearings into his violations would be an instructional exercise in righting the constitutional imbalance.
But there are lots of arguments against impeachment. First, nothing would get done in Washington while impeachment held center stage. Markey is looking forward to pushing an important global warming bill through the House this week. It would never become law if impeachment were being debated, he says.
Since Newt Gingrich's House impeached Bill Clinton, impeachment has come to be seen as a way to settle political scores, not a serious constitutional exercise. Gingrich paid for it at the polls, a lesson that hasn't been lost on Washington Democrats.
Then there is the result of a successful impeachment of Bush: President Cheney. And at this point, the clock would likely run out on Bush's presidency before impeachment proceedings could be completed.
What's the alternative to impeachment? Markey says next year's election will repudiate everything Bush stood for, including his usurpation of powers the Constitution doesn't give the president. Maybe, but only if executive powers become a campaign issue.
There's hope on this score: John McCain, Bill Richardson and Ron Paul have all pledged that, if elected, they will never use signing statements to sidestep the constitutional process. But these aren't exactly front-burner issues in Iowa and New Hampshire.
Besides, can we count on people like Hillary Clinton or Rudy Giuliani to voluntarily give up some of the president's powers just as they enter the White House? I wouldn't bet on it.
If Congress wants to wrest some of its authority back from the president, it should do it by legislation. After all, Richard Nixon's impeachment by itself did little to shrink the imperial presidency.
But while Nixon was weakest, a Democratic Congress passed legislation - the War Powers Resolution that restricted the president's authority to wage undeclared wars, the Foreign Intelligence Surveillance Act (FISA) which reined in wiretapping until Bush started ignoring it, the Presidential Records Act and Freedom of Information Act, both of which have been undermined by Bush/Cheney - were important correctives to abuses of power in the White House.
Democrats in Congress shouldn't wait for a Democratic president to give power back to Congress. They should be passing laws that restore its authority. Among them should be a law that reinforces the Constitution's mandate that the president "faithfully execute" the law.
Rick Holmes is opinion editor of the MetroWest Daily News. He can be reached at email@example.com.
THE TRANSCRIPT OF THE DEMOINE REGISTER DEMOCRATIC DEBATE - 12-13-07
QUESTION: As president would you use signing statements to assert that certain acts of congress conflict with your interpretation of the constitution and your obligation to enforce those laws?
I would use them the way presidents before this president used them. They were used to clarify the law, to perhaps make it more coherent with other laws that had been passed, and then along came president bush. He's used them as essentially a form of veto. He did it to a piece of legislation I passed where I said if you're going to have a FEMA director, it should be somebody with experience handling emergencies.
I know. We actually had to pass it there us the congress. And when George bush signed the Bill, he used a signing statement to say I don't have to follow that unless I choose to. So let's quit with all the of the perversion of the constitution and the rule of law, let's get back to what presidents did in both parties and hopefully remove the legacy of George w. Bush.
Well, it's true that bush has not only in the use of signing statements but in every conceivable way expanded the executive power. And this is not the way our founding fathers intended this government to operate. And what I will do is go back to the way signing statements have been used historically. And on top of that, I'm going to make absolutely certain that our three branches of government are, in fact, co-equal. We don't have a royal presidency, we don't have a king of the United States, whatever George bush thinks, he is not king. And it's important for the American people to understand that their president respects them and understands that the oval office and the white house and the presidency doesn't belong to one person. It belongs to the American people.
I will call in the joint chiefs of staff and tell them they have a new
mission which is to in a responsible, careful way end this war in Iraq, bring
our combat troops home. I will initiate the kind of diplomacy that's necessary
to stabilize the country and the region as we're pulling out. Number two, I'll
call in my new attorney general to review any executive order that's been made
by George bush. Number three, we're going to have an open conversation with all
the key players in the health care arena to make sure that we are moving forward
on a plan to provide coverage to every single American and to save money so that
we can actually afford it over the long haul.
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