Thursday, November 29, 2007

A Signing Statement

I think that a recent signing statement by President Bush is indicative of the type of signing statements we should expect for his remaining days in office. Rather than the bold, confrontational language of the past six years, this statement covering the "Department of Defense Appropriations Act, 2008" (HR 3222) is vague and covers a number of different sections of the bill. Here is what I mean:


The Act contains certain provisions identical to those found in prior bills passed by the Congress that might be construed to be inconsistent with my Constitutional responsibilities (sections 8005, 8009, 8012(b), 8034(b), 8052, 8082, 8085, 8089, 8091, and 8116, and the
provision concerning consolidation under the heading ``Operation and Maintenance, Defense Wide''). To avoid such potential infirmities, I will interpret and construe such provisions in the same manner as I have previously stated in regard to those provisions.


First, what specifically do these sections do?

8005--Deals with the president's ability to control communications. The section directs the Secretary of Defense to transfer funds where necessary, but before he does, he must notify the Congress "promptly of all transfers." The president has objected to this language before, arguing that the Constitution gives him the sole authority to communicate to Congress and not the inferior executive officers.

8009--Ibid. States that funds used for a "special access program" (you would think something that vague would draw the fire alone) may not be spent without first notifying the defense committees in Congress 30 days before spending money.

8012(b)--This section demands that the president "prepare and submit" budget materials for the Congress. Traditionally the president objects to this language as a violations of the Recommendations clause.

8034(b)--Ibid. The provision requires the president to submit "justification material" with his budget request.

8052--This is a "report and wait" requirement similar to 8009 above, requiring the administration to report to the "congressional defense committees, the Committee on International Relations in the House of Representatives, and the Committee on Foreign Relations of the Senate."

8082--This complaint would center on interference with the presidents executive powers. It tells the president how he may use appropriated funds.

8085--This section contains two problems. First, it tells the president how he may or may not use funds and second it commands him to receive "prior notification" from the defense committees once he has decided how the funds may be used.

8089--Tells the president how to spend "$62,700,000."

8091--Directs the president on what he needs to put in the budget request for FY 2009.

8116--Ibid. This particular section tells the president that requesting money for military operations outside of the normal budget will no longer be permitted: "Any request for funds for a fiscal year after fiscal year 2008 for an ongoing military operation overseas, including operations in Afghanistan and Iraq, shall be included in the annual budget of the President for such fiscal year as submitted to Congress..."

``Operation and Maintenance, Defense Wide''-- This objection interferes with the president's ability to direct and supervise inferior executive officers.

President Bush's demands are found in two separate "Statements of Administration Policy" sent to the House and the Senate as the bill made its way through both chambers. You can read them here and here.

Now all we need to do is wait and see how he acts upon these complaints. While waiting, it is clear that this signing statement differs dramatically from the signing statements in his past.

Monday, November 26, 2007

Attacking Addington

David Cole has a review of former Bush Justice Department official Jack Goldsmith's book, The Terror Presidency. Cole, like the Democrats on the Senate Judiciary Committee before him, seems most unhappy with Goldsmith for not unloading on his former boss.

Last month, the Senate Judiciary Committee called Goldsmith to testify about his time in the Bush Justice Department, and it is clear that they had not read his book prior to doing so. When Goldsmith praised the administration, and supported the notion that much of the problems facing the modern presidency has its origins in the Congress, for passing laws in the 1970s that interfered with prerogatives of the president.

For Cole, he titles his piece "The Man Behind the Torture," which refers to VP Cheney's Chief of Staff, David Addington. Goldsmith does spend time criticizing Addington, as does Cole, who makes him out to be a boogeyman, but the criticism is done disingenuously. What do I mean? Back in the 1970s and 1980s, it was popular for those running for national office to run against the bureaucracy. All sorts of horrors could be--and were--heaped upon the back of bureaucrats because the bureaucracy wouldn't fight back. It is the same as cursing the moon for personal problems. Blame is placed elsewhere with no chance of bouncing back.

It is well known that Addington does not do interviews. He is perfectly content to lounge in his spider hole and make his presence felt elsewhere, away from the prying eyes of the media, the Congress, and the American public. Thus for critics, it is easy to place all sorts of blame at his feet. For Goldsmith, blaming Addington makes it easier than placing blame where it is deserved--at the feet of the president.

There are additional problems I have with Cole's critique of the book. Cole chastises Goldsmith for not criticizing administration policy on its merits, instead seeking the diplomatic route by obtaining "congressional authorization for them." I am not sure that it is the job of the political appointees in the Justice Department to criticize the policy on the merits--in particular, to criticize the President for a decision that is his and his alone. What is an appropriate part of the job at Justice is to decide whether the policy is constitutional or consistent with the law. If it is not consistent with the law, then it is perfectly appropriate to recommend that the administration work with Congress--rather than to stand alone--to bolster the case for action. As a critic of the administration, Cole believes that actions he feels is politically repugnant should also be voiced by the officials inside the Justice Department. I don't think that is fair.

Finally, I think in one part, Cole misses the point. He writes: "For all its strengths as a descriptive account of an administration run amok, the prescriptive elements of The Terror Presidency are at best conventional and at worst perverse. Holding up Franklin Delano Roosevelt as a model, Goldsmith recommends that the executive branch should take a more diplomatic approach to the other branches of government. As a matter of realpolitik, he suggests, the executive might well consolidate and exercise its power more effectively by working with Congress and the courts than by aggressively asserting immunity from legislative and judicial oversight on national security matters. What is striking is not the content of this prescription, which in itself is neither novel nor controversial, but the fact that Addington and other members of the Bush administration so vehemently rejected it."

That is not what Goldsmith was saying. Goldsmith argued, quite correctly, that the administration--in particularly Cheney and Addington--resisted any action that involved the Congress for fear that it would be interpreted as precedent for congressional meddling. And that of course is absolutely correct. If Cheney and Addington could put down their blinders for one minute, and recognize that the Congress of 2001-2006 was willing to do whatever the president wished, it could have enhanced the powers of the presidency far greater than the unilateral strategy they chose. And that is right on the button.