Signing Statements Redux
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.Continued on the next page
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