Wednesday, January 4, 2012

Signing off on hypocrisy

Article first published as Signing Statements Redux on Techorati.

Back in 2006, Charlie Savage of the Boston Globe penned a story about President Bush's use of Signing Statements that quickly gained momentum, eventually turning into a full-blown pseudo-scandal. The story even won Mr. Savage a Pulitzer Prize. The supposedly controversial use of Signing Statements by President Bush, however, continued through the remainder of his Presidency. During the 2008 campaign, they were a serious issue. Barack Obama--while campaigning for the Presidency--specifically said he would not use Signing Statments "as a way of doing an end run around Congress." Asked if he would promise to not use them to get his way, Obama answered "yes."

But since becoming President, Obama has changed his tune to say the least, having now issued a number of Signing Statements that undermine the specifics of the bills they are attached to. The latest one comes just yesterday, as President Obama signed into law the National Defense Authorization Act. The bill includes provisions detailing the manner in which foreign nationals will be held, when involved in war or terrorism against the United States, and it these provisions--and a few others--that the President's Signing Statement addresses. As an example, these are the President's objections to Section 1022 of the bill:
Section 1022 seeks to require military custody for a narrow category of non-citizen detainees who are "captured in the course of hostilities authorized by the Authorization for Use of Military Force." This section is ill-conceived and will do nothing to improve the security of the United States. The executive branch already has the authority to detain in military custody those members of al-Qa'ida who are captured in the course of hostilities authorized by the AUMF, and as Commander in Chief I have directed the military to do so where appropriate. I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat. While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations. 
I have concluded that section 1022 provides the minimally acceptable amount of flexibility to protect national security. Specifically, I have signed this bill on the understanding that section 1022 provides the executive branch with broad authority to determine how best to implement it, and with the full and unencumbered ability to waive any military custody requirement, including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States. As my Administration has made clear, the only responsible way to combat the threat al-Qa'ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system. Otherwise, investigations could be compromised, our authorities to hold dangerous individuals could be jeopardized, and intelligence could be lost. I will not tolerate that result, and under no circumstances will my Administration accept or adhere to a rigid across-the-board requirement for military detention. I will therefore interpret and implement section 1022 in the manner that best preserves the same flexible approach that has served us so well for the past 3 years and that protects the ability of law enforcement professionals to obtain the evidence and cooperation they need to protect the Nation.
Note the manner through which the legislation is challenged: the provisions will be interpreted by the administration in such a manner as to allow circumvention. And indeed, this is the same sort of language utilized by the previous administration. Still, the reality is that President Obama--like President Bush before him--is telling Congress that he will not fully follow the law he has signed, that there are elements of it he finds objectionable--for Constitutional reasons--even though the great bulk of it passes muster.

The simple conclusion here, the unavoidable one, is that the President has gone back on his word, has broken a clear promise with regard to Signing Statements. But it is only fair to ask if this is really that big of deal.

The short answer: no, it's not. Because--despite Savage's Pulitzer and the many articles on Signing Statement "controversies"--there is no new power being created and exercised by the President through the use of Signing Statements. The statements are not, themselves, legal instruments. They possess no authority and indeed are not functional elements of the bills to which they are attached. They are nothing more than Presidential commentary.

Not all Signing Statements from past Presidents challenged elements of bills. Many were of the sort "Good show!" or "Well done!" with regard to legislation. Others were simply intended to clarify what was entailed by the legislation, in order to help agencies follow the law properly. For those that were actual challenges, were written to say "Hey, I'm signing the bill, but some of it could violate the Constitution, and I won't allow that," the statements remain exactly that: statements. In essence, they amount to fair warning, nothing more.

Yet, some have noted the apparent proliferation of Signing Statements under recent administrations (starting with Reagan) and suggested that the statements are being used to expand Presidential powers (even though the statements, again, carry no legal weight). But there is an alternate explanation for the increase in usage: a Congress seeking to expand its authority beyond what the Constitution allows.

Consider President Obama's latest statement. He has a fair point, insofar as it's really not the business of Congress to micromanage how the chief executive prosecutes a war. It's really not. And a look back at some of President Bush's statements would show the same pattern, from this point of view.

Still, the Signing Statement controversies are largely manufactured. Aside from the statements having no legal authority, there is another matter: laws stay on the books until repealed or overridden by new laws. Not so for Signing Statements. They pass into history as quickly as the President that made them. Future Presidents and administrations are not constrained in any way by the Signing Statements of previous Presidents. The statements are footnotes, nothing more.

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