Reality Check: Breaking Down Obama’s NDAA Signing Statement

The President issued a signing statement when he signed the National Defense Authorization Act into law. Conservatives are freaking out over the alleged hypocrisy of Obama’s usage of a signing statement and the less hysterical are still confused as to what it really means, if indeed, it means anything. So, let’s break it down.

A signing statement is something of a public pronouncement a president might make about a bill they are signing into law. They have been used to clarify their positions or elaborate dissent. In modern times, they are used to direct executive agencies to interpret the law according to the President’s interpretation of the Constitution.

As such, Attorney General Eric Holder explained that the signing statement clarifies how the Obama administration views the law and how they (executive agencies like the DoJ) will interpret it.

Obama used this signing statement to amend and clarify his administration’s interpretation of NDAA, a bill he is already on record as objecting to. Due to the administration’s objections and the ACLU’s objections, the language in the original was clarified and changed. However, all law is open to interpretation and can’t be taken alone – the NDAA in concert with the Patriot Act, for example, could be interpreted to mean something much differently than the Obama administration would want to agree to – thus, the signing statement.

Jason Easley reported on the NDAA signing statement (emphasis mine, to draw attention to specific areas of Presidential dissent and interpretation):

In his signing statement attached to the NDAA, President Obama made it clear that the language about detentions does not apply to US citizens.

In the second paragraph of his NDAA signing statement, Obama stated, “The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists. Over the last several years, my Administration has developed an effective, sustainable framework for the detention, interrogation and trial of suspected terrorists that allows us to maximize both our ability to collect intelligence and to incapacitate dangerous individuals in rapidly developing situations, and the results we have achieved are undeniable. Our success against al-Qa’ida and its affiliates and adherents has derived in significant measure from providing our counterterrorism professionals with the clarity and flexibility they need to adapt to changing circumstances and to utilize whichever authorities best protect the American people, and our accomplishments have respected the values that make our country an example for the world.”

The president explained why he signed the NDAA, “Against that record of success, some in Congress continue to insist upon restricting the options available to our counterterrorism professionals and interfering with the very operations that have kept us safe. My Administration has consistently opposed such measures. Ultimately, I decided to sign this bill not only because of the critically important services it provides for our forces and their families and the national security programs it authorizes, but also because the Congress revised provisions that otherwise would have jeopardized the safety, security, and liberty of the American people. Moving forward, my Administration will interpret and implement the provisions described below in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded.”

Conservatives are doing backflips excoriating Obama for allegedly reversing his earlier critiques about Bush’s egregious use of signing statements. They think Obama issuing a signing statement about NDAA makes him a hypocrite for condemning Bush for his use of signing statements. However, the issue was never the use of the signing statement but rather the overuse of them and the overreach included. George W. Bush “routinely asserted that he would not act contrary to the constitutional provisions that direct the president to ‘supervise the unitary executive branch.'”

Conservatives are ignoring this reality, as well as pretending that suddenly they are against a unitary executive as adored by the authoritarian conservatives of the modern day Republican Party.
Bush used signing statements as a way of explaining that if he disagreed with a law or thought it conflicted with the powers he held as unitary executive, he would simply not enforce it.

Signing statements have been issued by all modern Presidents, and that the objection to Bush’s use of them was not that he executed them, but the number of them he executed and the expansion of powers he granted to himself in the doing.

In his book, Broken Government: How Republican Rule Destroyed the Legislative, Executive, and Judicial Branches, John W. Dean points out that there are two metrics for measuring the use of signing statements: Both the number of them issued and the number of provisions within a bill that the President issues a statement about. It isn’t just the number of signing statements, but the challenges to the provisions with each law.

For example, President Bush challenged 1,100 provisions of the law in his signing statements, which is more than all of his previous presidents combined. 78% of Bush’s signing statements raised constitutional objections compared to 18% for President Clinton, 47% for George H.W. Bush and 34% for Ronald Reagan.

We see that President Bush took the theory of the unitary executive to the extreme, pushing the boundaries until it overrode the checks and balances of the other branches of government. John W. Dean calls this type of “presidential autocracy” the natural result of authoritarian conservatism.

The Boston Globe wrote that Bush had assumed the right to disobey more than 750 laws since he took office, “…declaring that he (Bush) has the power to set aside the laws when they conflict with his legal interpretation of the Constitution. The federal government is instructed to follow the statements when it enforces the laws.” (Rather scary on a number of levels, not the least of which was Bush’s rather infamous scorn for the discipline of academic pursuit.)

Bush once wrote in a signing statement that he would, “(C)onstrue Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.”

President Bush issued more challenges to provisions in the laws than all other Presidents combined and he expanded the powers of the executive branch within his statements to include overriding the legislative and judicial branches of government.

Signing statements have been the subject of much controversy, as the Constitution does not allow a President to ignore a law via a signing statement, something George W Bush announced was his right as President. The President may not circumvent, disobey, or ignore any enacted Congressional Law. The President is granted three options: sign it into law, veto it in its entirety and return to the body responsible, or do nothing.

The debate about signing statements can be framed around the interpretation of the unitary executive theory, based on Article II of the Constitution. John W. Dean explains the dangers of taking the unitary executive theory to its extreme, “In its most extreme form, unitary executive theory can mean that neither Congress nor the federal courts can tell the President what to do or how to do it, particularly regarding national security matters.”

In 2006, Laurence H. Tribe writing about then President Bush’s use of signing statements explained on the Boston.com, “It’s not the statements that are the true source of constitutional difficulty. On the contrary, signing statements, which a president can issue to indicate the way he intends to direct his administration to construe ambiguous statutes, are informative and constitutionally unobjectionable.” Tribe went on to explain that the challenge should be to the President for ignoring the law (as Bush did) or for harm that came to others as a result of it (e.g., enemy combatants). He also pointed out that Presidents should face the political music of a veto leading to an override rather than ignore a law.

In this case, President Obama is not indicating he intends to ignore the law; rather he is clarifying his interpretation of it. However purists could argue that he should have vetoed the law if he disagreed with it, even though he faced an override of his veto. However, had he done so, the law could have been implemented without the signing statement clarification of what he found to be ambiguous language.

Conservatives who criticize Obama for his use of a signing statement are being disingenuous and might want to recall back when President Clinton finally figured out that the expanded powers conservatives had used to deregulate could be just as easily used to regulate. Many liberals would like to see President Obama operate more as a unitary executive than he does. They’d like to see Obama operate like President Clinton did with certain regulations.

President Obama is not the autocratic president the right pretends he is and the some of the left wish he were. The NDAA signing statement does not change the law; but it does direct the executive agencies, including the Department of Justice, as to how this administration will interpret the law. To wit, according to this administration, it will not apply to US citizens.

The more pertinent question is not will this apply to US citizens as it will not under the Obama administration, but why the Senate Armed Services Committee is ignoring the very effective defense and security tactics of the Obama administration, and still pushing for a McCain approach. There was way too much of the “give up your freedoms for security” flavor to this law in its original form; and we should be asking why, when the Obama administration’s approach has been more than effective.

The real issue, as I have been writing since the inception of this debacle, is the Senate’s continued push for McCain type military trials versus Obama civilian trials and the political agenda behind refusing to fund the closure of Gitmo.

The push toward militarization continues, and a wise America will wake up to the folks behind this (John McCain, Lindsey Graham, Carl Levin, etc) and start to demand change from them as well.

Additional Source: John W Dean, Broken Government

Image: Source Watch

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15 Replies to “Reality Check: Breaking Down Obama’s NDAA Signing Statement”

  1. I noticed that Milt Shook today was tweeting about and trying to explain or clarify to people WHAT was really in the Law as well. People seemed to be interpreting it differently or basing their opinion on the earlier version before it was revised. (Read it for yourself )

    I will post his (Milt Shooks) comment and the link he provided.

    Here is the final version of NDAA http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540enr/pdf/BILLS-112hr1540enr.pdf Now, find the section that creates “indefinite detention.”

  2. Honesty,

    Yes, many people are posting links to objections to the earlier bill. And arguing things based on the debunked Levin video, etc. That is only muddying the waters at this point and confusing those who don’t understand what’s gone on. However, I encourage people to read as many articles as they can stand on this subject if they are concerned about it. Law is subject to interpretation (I should say in the implementation but also in the courts whose job it is to interpret it) to some extent.

    The timeline can confuse some folks:

    There is the original bill, the ACLU objections, the OA objections to it, the edited video, the commentary and concern, the revised bill, the passage of the revised version along with the signing statement.

    Just to be clear, I am presenting here the President’s interpretation of the law, not mine. I am sure lawyers can find tons of holes in this thing which is why the President wanted to clarify interpretation. The law is imperfect and therefor, I would never argue that this is enough, but I would argue that this admin has made it clear how they see it being implemented.

  3. You may be interested in sec 1032. Note the loosely defined language about creating a list of subjects, in any country that may be creating propaganda etc.

    Now remember, we already have detained prisoners indefinitely in Guantanamo.

    Next visit 1029 (a)(2)

    The department of defense (the same department that feels that all Americans should be subject to unlawful nude searches)is the reigning authority on who gets to have military detention or civil detention.

    Military Detention = guilty until proven innocent.

    Who will be there to prove your innocence?

  4. It is not Obama’s intention to have the detentions apply to US citizens, which is he he worded it this way. Also, the military has no interest in having the AUMF of 2001 apply to US citizens. I’d like to see some research to see if Obama would be unable to issue a ‘signing statement’ if a veto were overridden. this would have happened for sure, what with the votes it got in both houses.

  5. The comment comes from a document on signing statements: ‘If Congress approves the bill over the veto of the president,
    the bill becomes law without his signature. A controversial issue arises when
    the president signs a law passed by Congress but declines to execute the law
    under conditions that he believes make it unconstitutional. Presidents have
    issued signing statements claiming this authority and have indeed exercised
    this authority from the presidency of James Monroe14 to the present.’

    Appears that a signing statement can’t be made since the law is enacted without the Presidents’ signing it in case of veto over ride.

    This is from page 710 in: http://www.uclalawreview.org/pdf/55-3-4.pdf

  6. Great comment, thanks Ken. Yes, that appears to be the case hence the risk of a veto when facing a veto proof majority, not to mention the political loss. Without the clarification to the ex agencies, the ambiguous language, part taken with pre-existing law like the Patriot Act, is left to float.

  7. You mention conservatives several times in your article as the people who have a problem with Obama signing the NDAA but what about those of us, like myself, who voted for him and have a problem with this? This man has broken too many campaign promises to be trusted.

    “They think Obama issuing a signing statement about NDAA makes him a hypocrite for condemning Bush for his use of signing statements.”
    Because it does make him a hypocrite. Its pretty simple.

    Its laughable how many points in this article condemn Bush (rightly so) and then go on to defend Obama for doing the same thing! Is Bush the standard you want to hold a president to?

  8. Bush wasnt wasn’t in a position where his veto would have been over ridden by the senate. He was screwed no matter how you look at it. At least this way he got to say his administration would not uphold it

  9. What. The frack. Are you seriously defending this asshattery? At first I thought it was Poe’s law… but just, wow. I’m with Kerpow, Obama was voted for so we would NOT have another Patriot Act and instead we get more of the same BS. At least if he had vetoed it it would have sent a clear message that he was against it, maybe even some would change their minds, especially if people wrote it. And he still could have said he would not uphold it. Even if he doesn’t uphold it (which, frankly, I don’t believe him at this point in time) what about the people after him?

  10. Had Obama vetoed the bill it would go back to the Senate. They would of passed it as law & Obama wouldn’t have any control of it’s execution. Having signed it into law & written a signing statement he has a chance to at least force this laws controversial parts to a standard according to the Presidents interpretation of the law. His signing statement helps to create a format for this bills execution, without signing it & vetoing we would be stuck with the very scary parts of the bill.

  11. I grant that the NDAA is ‘vague’ (as Milt Shook pointed out), and difficult for most-including myself- to decipher. However after the ACLU, Amnesty International, Glenn Greenwald, Lawfare Blog, and even such non-experts as the Daily Show – have (rightly) decried this bill as applying to US citizens – I believe its clearly time to reconsider your analysis. It’s important that we stop dealing with false self-assurances and start confronting the ugly reality at hand. I sincerely hope PoliticsUSA will correct the understandable mistakes made in it’s reporting on the NDAA.
    ————
    “The ACLU believes that any military detention of American citizens or others within the United States is unconstitutional and illegal, including under the NDAA.” – ACLU Statement on final version of NDAA

  12. No, conservatives in the SASC are for the indefinite detention of US citizens. The article addresses the usage of signing statements, which is not the same thing as signing the law.

  13. The ACLU’s criticism of the NDAA as it stands now (after changes) are that it does not take away the powers already granted by the Patriot Act. However, it does not expand the powers now that it was amended, either.

    The ACLU has had the same objections (rightly so) previous NDAA passages (as a yearly funding bill).

    The ACLU’s criticisms are a good source and read. Bear in mind that the ACLU also supported Citizens United via a filed an amicus brief that supported the decision as they seek broad freedoms under the constitution.

  14. Not granting any new powers doesn’t address the issue that the federal govt has *already* claimed the power to detain US citizens without trial, which the NDAA re-affirms by statute. The ACLU is one of many organizations which have decried this bill, you seem to be sidestepping the main point here – the error made in denying this bill applies to US citizens- when it fact does just that.

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