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Reality Check: Breaking Down Obama’s NDAA Signing Statement

Last updated on February 8th, 2013 at 12:33 am

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

Sarah Jones

Listen to Sarah on the PoliticusUSA Pod on The Daily newsletter podcast here. Sarah has been credentialed to cover President Barack Obama, then VP Joe Biden, 2016 Democratic presidential candidate Hillary Clinton, and exclusively interviewed Speaker Nancy Pelosi multiple times and exclusively covered her first home appearance after the first impeachment of then President Donald Trump. Sarah is two-time Telly award winning video producer and a member of the Society of Professional Journalists. Connect with Sarah on Post,  Mastodon @PoliticusSarah@Journa.Host, & Twitter.

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