International legal experts use a branding label called the "Mark of Cain," which is a term used for those in power who violate the human rights of their citizens. If the international legal regime is tight, it means that these people will forever be hunted until they are brought to justice. Thus they often become prisoners in their own country, for fear of leaving and then getting snatched by countries who are obliged by international law to bring them to justice--think for instance of Pinochet. This is the prospect facing folks like former OLC head John Yoo:
For more than four years, the Justice Department ethics office has been investigating his work and that of a few of his colleagues. A convicted terrorist has filed a lawsuit blaming Mr. Yoo for abuses he says he endured. Law students have led protests and the Berkeley City Council even passed a resolution in December calling for Mr. Yoo's prosecution for war crimes.
Yoo, and others, argue that this is unacceptable--that he is being wrongly persecuted for doing his job--for giving his client the advice he sought, particularly during an extraordinary time like the 9/11 attacks. And if he can be persecuted for this, what does this say for future presidents seeking the candid, if not extraordinary, legal advice of their legal counsel?
While that may be true, what is really at issue here is whether Yoo, Addington, and others gave their advice under the canopy of the Constitution, federal and international law, or whether they took advantage of the circumstances to advance a conservative legal theory out of step with the rest of the country?
I fall on the latter. For example, when Lincoln took the powers he did, he was always mindful of the Constitution and the laws--and mindful about how he would be judged in the future. Thus when the controversy ended, Lincoln asked the Congress and the courts to judge what he had done. In the case of the Bush legal team, there was no concern for either, thus they are reaping the seeds they sowed.
In the second, the issue of the signing statement has reared its ugly head once again. When Obama was on the campaign trail, he was careful, unlike McCain, to allow himself wiggle room on the use of the signing statement. Where McCain claimed he would never, under any circumstances, use the signing statement, Obama simply said that he would not use the signing statement as President Bush had. That's a loophole the size of the Pacific Ocean. Well, that loophole didn't get any smaller today in a memorandum issued by Obama to all Executive Branch agencies.
Obama outlines the history of the signing statement, and how it had been used carefully to "ensure that concerns about the constitutionality of discrete statutory provisions do not require a veto of the entire bill." But recently, that has changed. The past practice of using the signing statement to settle "policy disagreements" abused the sober history of this device, thus the need to outline how it will be used under Obama. This of course is a generous view of the history of the signing statement--Bush was not the first president to use the signing statement to settle policy differences. He was just the first to use them to such an extent that it raised public attention. And Bush did deviate in one major way from his predecessors--he began using the signing statement without grounding it in some part of the Constitution and without giving the Congress a clear ideal to what was specifically under challenge. That is an important difference that does merit the Bush administration criticism--not that he was somehow the first to use it.
So what is Obama's plan for the device? He lists four principles to which he will adhere:
- The executive branch will take appropriate and timely steps, whenever practicable, to inform the Congress of its constitutional concerns about pending legislation. Such communication should facilitate the efforts of the executive branch and the Congress to work together to address these concerns during the legislative process, thus minimizing the number of occasions on which I am presented with an enrolled bill that may require a signing statement.
- Because legislation enacted by the Congress comes with a presumption of constitutionality, I will strive to avoid the conclusion that any part of an enrolled bill is unconstitutional. In exercising my responsibility to determine whether a provision of an enrolled bill is unconstitutional, I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded.
- To promote transparency and accountability, I will ensure that signing statements identify my constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection.
- I will announce in signing statements that I will construe a statutory provision in a manner that avoids a constitutional problem only if that construction is a legitimate one.
I will take these point by point. In point 1, the principle he is claiming is not a new one. Recent presidents have maintained extensive communications with the Congress in an effort to shape the final bill the president receives--these communications can be found in things like SAPs, or Statements of Administration Policy, maintained at the OMB website (whitehouse.gov/omb). As my colleague Bryan Marshall and I have found, recent presidents use the signing statement in conjunction with SAPs to squeeze all they can from legislation, giving them final say over legislation. In point 2, legislation coming for the president's signature is presumed to be constitutional. But if you read on, that may be swell, but if the president determines part is unconstitutional, then he won't enforce it. So throw Congress a bone. We won't just assume you all don't know what you are doing down there. We will at least assume you know what the Constitution is all about, but that doesn't mean we will believe that once we actually read what you send. Seems insulting to me. Points 3 & 4 are a direct slam against the Bush administration. In point 3, if they do challenge a provision, they will "make clear the nature and basis of the constitutional objection." By 2005, the Bush administration had begun to make challenges without any constitutional grounding. And to follow that up, point 4 claims that he will only challenge if he can make a legitimate argument.
What follows is also interesting. In the memo, he informs all agencies that they are not to follow previous signing statements without first clearing it with the Attorney General--not their own counsels--but the AG. This actually brings up an interesting, and understudied, part of the signing statement, and one I briefly explored in my dissertation. A signing statement has a shelf life longer than the administration that issued it AND a president can reinterpret legislation signed by previous presidents--in essence, issue a signing statement post-facto. President H.W. Bush did this early in his administration with the policy of federal money and abortion--an action that led to the Supreme Court case Rust v Sullivan.
Either way, what is of big concern for those interested in the signing statement is that it is alive and well. What President Obama is doing is clearing the way for his use of the signing statement. Much the same as Clinton did in 1993, Obama is signaling that he will make use of the signing statement, with all due respect to the Congress, and not use like Bush. But use it he will!
