Bush Thumbs Nose at Congress

By Dan Froomkin

Special to

January 30, 2008

It's about as basic as it gets: Congress has the power of the purse. And Section 1222 of the massive defense appropriation bill [1] enacted this week asserts that power. It reads, in its entirety:

"No funds appropriated pursuant to an authorization of appropriations in this Act may be obligated or expended for a purpose as follows:

"(1) To establish any military installation or base for the purpose of providing for the permanent stationing of United States Armed Forces in Iraq.

"(2) To exercise United States control of the oil resources of Iraq."

But in another of his controversial "signing statements," [2] President Bush on Tuesday asserted that Section 1222 -- along with three other sections of the bill -- "purport to impose requirements that could inhibit the President's ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to supervise the executive branch, and to execute his authority as Commander in Chief."

Therefore, he wrote: "The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President."

The overall message to Congress was clear: I'm not bound by your laws.

The three other sections Bush reserved the right to ignore are also significant. One mandates the establishment of a commission to investigate waste and fraud in military contracts; another strengthens protections for whistle-blowers working for federal contractors; a third requires the president to explain in writing each time an intelligence agency refuses to respond to a document request from the House and Senate armed services committees.

But it's Bush's cavalier dismissal of the ban on funding for permanent military bases that really speaks volumes -- not just about his view of the role of the legislative branch, but also about his intentions for Iraq.

An overwhelming majority of the American public wants a withdrawal of U.S. troops; the Democrats who control congress, and may take over the White House in a year, are committed to doing just that. But, by keeping open the possibility of permanent military bases, Bush raises suspicions domestically that he is trying to lock the nation's armed forces into a long-term presence -- while risking increased anger in Iraq over what many perceive as a long-term project of imperial domination.

Where's the Coverage?

Looking for a news story about all this in your morning paper? You won't find one in The Washington Post, the New York Times, the Los Angeles Times or the Wall Street Journal.

Instead, you must turn to the Boston Globe and Charlie Savage, [3] who won a Pulitzer Prize last year for being the first -- and for a long time, only -- reporter to write about Bush's unprecedented use of signing statements.

In today's Globe, Savage writes: "President Bush this week declared that he has the power to bypass four laws, including a prohibition against using federal funds to establish permanent US military bases in Iraq, that Congress passed as part of a new defense bill.

"Bush made the assertion in a signing statement that he issued late Monday after signing the National Defense Authorization Act for 2008. In the signing statement, Bush asserted that four sections of the bill unconstitutionally infringe on his powers, and so the executive branch is not bound to obey them."

It's not like Savage was in on a secret. The signing statement was distributed to the press corps, and several Democrats yesterday took to the Senate floor to express their fury. (See below.) From the House side, Savage quotes Speaker Nancy Pelosi as saying: "I reject the notion in his signing statement that he can pick and choose which provisions of this law to execute. . . . His job, under the Constitution, is to faithfully execute the law - every part of it - and I expect him to do just that.'"

Savage also talked to legal specialists who disagreed with the administration's legal theory.

"'Congress clearly has the authority to enact this limitation of the expenditure of funds for permanent bases in Iraq,' said Dawn Johnsen, an Indiana University law professor who was the head of the Justice Department's Office of Legal Counsel during the Clinton administration. . . .

"Phillip Cooper, a political science professor at Portland State University, noted that Bush's statement does not clearly spell out the basis for any of his challenges. Cooper, who has been a pioneer in studying signing statements, said the vague language itself is a problem.

"'It is very hard for Congress or the American people to figure out what is supposed to happen and what the implications of this are,' Cooper said."

Here are some of the statements from the Senate floor yesterday.

Said Carl Levin, [4] chairman of the Senate Armed Services Committee: "Congress has a right to expect that the Administration will faithfully implement all of the provisions of the National Defense Authorization Act for Fiscal Year 2008 -- not just the ones the President happens to agree with. . . .

"[T]he President vetoed an earlier version of this Act, which contained the same specific provisions that he singled out in his signing statement yesterday. The President did not choose to exercise his veto over these provisions, and as a result they have not changed in any way whatsoever in the version of the bill he chose to sign. With his signature these provisions become the law of the land. Congress and the American people have a right to expect that the Administration will now faithfully carry them out."

Said Sen. Jim Webb, cosponsor of the legislation to establish the commission to investigate military contracts: "[T]he President of the United States -- who has been in charge of the conduct of this war and whose administration has been in charge of executing these contracts, supervising them, making sure that they meet the requirements of fairness in the law -- is now saying that he believes that a legislative body can enact a law that he can choose to ignore because he says it would interfere with his responsibility to supervise a war as Commander-and-Chief.

"I am at a total loss here. I am amazed to see this kind of language employed with respect to this legislation.

"The Commission was put into place with broad bipartisan and bicameral support, with the intention of studying systemic problems. I would think that these are the sorts of problems that this President would want to root out. . . .

"We don't quite know what the Administration intends with this sort of language, but I want all my colleagues to be aware of it and to be aware that it potentially is an impingement on the rights of this legislative body -- in effect saying that the President has the authority to ignore a law that is now passed, a law that he has now signed. . . .

"If the Administration would like to explain to us what their constitutional issue is with a piece of legislation that the President has just signed, we would be happy to hear that. In the meantime, we are moving forward with this Commission."

Said Sen. Bob Casey: [5] "Every time a senior Administration official is asked about permanent U.S. military bases in Iraq, they contend that it is not their intention to construct such facilities. Yet this signing statement issued by the President yesterday is the clearest signal yet that the Administration wants to hold this option in reserve. Mr. President, that is exactly the wrong signal to send, both to the Iraqi government and its neighbors in the region. Permanent U.S. military bases gives a blank check to an Iraqi government that has shown no evidence it is ready to step up and accept its responsibility to take the training wheels off and demonstrate real leadership and governance for the Iraqi people. Permanent U.S. military bases feeds the propaganda of our enemies, who argue that the U.S. invasion in 2003 was carried out only to secure access to Iraq's oil and establish a strategic beachhead for the U.S. military in the region. Permanent U.S. military bases means that U.S. troops will be in Iraq for years to come, ensuring that the great strain on the U.S. military we see today will continue indefinitely."

The only White House response I've seen thus far was in an Associated Press story by Mary Clare Jalonick, who reported a White House spokeswoman's claim that the contracts investigation provision could be read to require the Justice Department to disclose whether or not it is prosecuting individuals.

"'Under longstanding constitutional principles, the executive branch may protect from disclosure certain sensitive information, including national security information, as well as information about decisions whether to file criminal charges,' the spokeswoman, Jeanie Mamo, said late Tuesday. 'The signing statement provides notice that the commission's requests for information, if they are too broad, may run afoul of the Constitution.'"

Despite the silence in its news columns, the New York Times [6] editorial board weighs in today: "The president said [the four provisions] impinged on his constitutional powers. We asked the White House to explain that claim, but got no answer, so we'll do our best to figure it out.

"The first provision created a commission to determine how reliant the government is on contractors in Iraq and Afghanistan, how much waste, fraud and abuse has occurred and what has been done to hold accountable those who are responsible. Congress authorized the commission to compel government officials to testify.

"Perhaps this violated Mr. Bush's sense of his power to dole out contracts as he sees fit and to hold contractors harmless. The same theory applies to the second provision that Mr. Bush said he would not obey: a new law providing protection against reprisal to those who expose waste, fraud or abuse in wartime contracts.

"The third measure Mr. Bush rejected requires intelligence officials to respond to a request for documents from the Armed Services Committees of Congress within 45 days, either by producing the documents or explaining why they are being withheld. Clearly, this violates the power that Mr. Bush has given himself to cover up an array of illegal and improper actions, like his decisions to spy on Americans without a warrant, to torture prisoners in violation of the Geneva Conventions and to fire United States attorneys apparently for political reasons.

"It's glaringly obvious why Mr. Bush rejected the fourth provision, which states that none of the money authorized for military purposes may be used to establish permanent military bases in Iraq.

"It is more evidence, as if any were needed, that Mr. Bush never intended to end this war, and that he still views it as the prelude to an unceasing American military presence in Iraq."