NPR interview with Boston Globe correspondent Charlie Savage, 2007 Pulitzer Prize winner for national reporting for his series on the Bush administration's use of "presidential signing statements" -- "a way of constitutionally challenging laws and claiming the authority to bypass laws without issuing vetoes." Terry Gross of Fresh Air interviewed Charlie Savage in May of 2006 "when Bush had already challenged more statutes through the use of signing statements than any president in history -- 750!
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Terry Gross: In contrast his father, George H. W. Bush, challenged 232 laws in his four years and Bill Clinton bypassed 140 laws with signing statements in his eight years as president. Although President George W. Bush issued a record number of signing statements, he didn't veto a single bill until five and a half years into his presidency when he struck down Congress's bid to lift funding restrictions on embryonic stem cell research. I asked Charlie Savage to explain what a signing statement is.
Charlie Savage: A signing statement is not a proclamation in which he says, "This is a great bill. This is going to help America. Thank you, Congress, for your hard work!" He also issues those with great fanfare. A signing statement, in contract, is a technical legal document which he files in the federal record on the day that he signs the bill. It contains his interpretation of what the law means and what it doesn't mean and instructions to the federal bureaucracy -- or the military -- on how they are to implement the law now that it's taking force. Often in these signing statements he is making constitutional objections to statutes and provisions that he thinks intrude on his own powers as the Commander in Chief or the head of the Executive Branch to run the government as he sees fit. He has challenged more than 750 laws in the last five years saying that the Executive Branch can ignore all of them because, in his view, they conflict with the Constitution.
TG: He hasn't usually challenged the whole laws but sections of the laws?
CS: This is a problem of nomenclature. If you have a giant bill that is thousands of pages long and contains many different laws, many different statutes within it, sometimes you refer to the whole thing as "a law," but in fact each section is a law in itself and the Supreme Court might strike down that law but the rest remains.
TG: Is there any pattern to the laws that the president has written signing statements for?
CS: Many of the laws that he has challenged have involved rules and regulations for the military and national security. Most famously he's challenged the constitutionality of a law that forbids US interrogators from using torture or other forms of cruel, inhuman, and degrading treatment against detainees anywhere in the world. He says that as commander in chief, only he has the power to set aside that torture ban if he thinks it would assist in preventing terrorist attacks. He has also, however, challenged a range of laws which have nothing to do with national security. He's challenged numerous statutes requiring congressional oversight committees to be given information about how government is conducting certain areas of its business. He's challenged affirmative action provisions which require that the government try to make sure that minorities receive a share of contracts and grants and jobs. He's challenged whistleblower statutes which allow members of the affected branch to speak out about government wrongdoing without fear of losing their jobs if they tell Congress about it. He said that only he, as head of the Executive branch, can decide what information Congress receives. He's challenged safeguards against political interference in federally funded research. All of these things have nothing to do with national security but are also the kinds of laws that President Bush has said, over the past five years, he's not bound to obey.
TG: One of the laws that he issued a signing statement for included the addition of an inspector general for Iraq. This is somebody who would have oversight on how money is being spent in Iraq and how projects are developing. The president wrote that "the inspector shall refrain from investigating any intelligence of national security matter, or any crime the Pentagon says it prefers to investigate for itself"! But isn't part of what the inspector general is investigating the Pentagon itself and how it's using money?
CS: That's correct. The Congress set up a broad-ranging inspector general. In fact, they did this twice: once for the initial phase of the occupation and then again after the former transfer of power. Congress set up an inspector general position that would have the power to go around and uncover any kind of wrongdoing by US forces and officials in Iraq. And they specifically said that no official could get in the way of any inquiry, investigation, or subpoena that this inspector general wanted to issue and, in one case also, that if anyone over there tried to interfere in any way, or did not cooperate with this person's inquiries, he was immediately to tell Congress about it. When President Bush signed the bills containing these inspector general statutes, he first of all, as you read, severely curtailed what kinds of investigations this inspector general could look at. And secondly, he said that the inspector general could not of his own will tell Congress anything without the permission of the president and his appointees.
TG: So isn't that kind of like saying the president doesn't want the inspector general to investigate the Pentagon but it can ask the Pentagon to investigate itself instead?
CS: That's right. It's a way to keep the inspector general from being a free agent who might conduct some kind of investigation that would get out of control from what the president and his appointees wanted to have investigated. And the context of the second law was five months after the Abu Ghraib prison abuse scandal. It was part of a large set of new rules and regulations that Congress made the next time they passed a major military bill in response to that scandal. One of them was the inspector general law. Another was saying that prisons guards around the world, in the military, had to be retrained in the Geneva Conventions and the limits on the treatment of prisoners -- the humane treatment of prisoners. A third was that Pentagon had to create stronger rules for the use of private contractors, including conducting background checks on private contractors and barring them from any sort of criminal justice role. Of course, part of the Abu Ghraib scandal was the use of private contractors as interrogators. All of those rules and regulations the Congress passed in that bill were flagged by President Bush who said that -- despite what the Constitution said Congress can do as far as passing rules and regulations for the military -- only he, as commander in chief, could make such restrictions. And so he could ignore those laws.
TG: Do you know what the process is that the president goes through before issuing a signing statement? Who does he consult with? Who actually writes it?
CS: Yes. Obviously President Bush himself is not reading long bills and singling out provisions that conflict with his interpretation of the Constitution. Within the White House there is the office called Office of Management and Budget which oversees the crafting of these things. They farm out bills to all the various agencies which will be affected by the bill. And they also have lawyers within the White House Counsel's office and in the Justice Department at the Office of Legal Counsel who are also charged with reviewing these laws and finding these provisions. Sometimes they argue amongst themselves about what should go in and what should go out. Eventually there's a final signing statement that's drafted up for the president to sign. So in a sense this is President Bush doing this and it's his signature -- his approval that makes it work. But behind the scenes it is a product of his legal team -- the same legal team which has had a very aggressive view of presidential power in other aspects that we've seen over the last five years including the famous "torture memo," in which the team came up with the theory that President Bush or any president, as commander in chief, could set aside an existing torture ban, an older torture ban, in the interests of national security -- or could authorize interrogators to use whatever techniques he felt necessary despite the ban. That memo was a secret. And then, after the Abu Ghraib prison scandal, it was leaked. It caused such an uproar that the administration had to set it aside. The same lawyers who were drafting things like are also drafting these signing statements.
TG: Speaking of Abu Ghraib, you also write that five months after the Abu Ghraib story broke, Congress passed a series of rules and regulations for military prisons. The president signed that and then said he could ignore them!
CS: That's right. Congress passed a series of new laws in reaction to the Abu Ghraib prison scandal, about five months later. The laws did such things as require the retraining of military prison guards around the world in the humane treatment requirements of the Geneva Conventions. It required the military to perform background checks on the contractors they had to assist them, because of course contractors were some of the interrogators at Abu Ghraib -- as opposed to people who were actually in uniform. It also required contractors to be banned from most criminal justice functions. It would keep them out of places like Abu Ghraib. And it set up the inspector general who was to be charged to look wherever he wanted in Iraq and that no one would be allowed to interfere with investigations he wanted to launch. Bush challenged all of these laws. He said that only he as commander in chief could set rules and regulations for military contractors or decide what kind of training prison guards needed to have. He declared that the inspector general Shall Not investigate anything to do with intelligence, national security or anything that the Pentagon had decided it would investigate itself.
TG: What's the writing like in these statements?
CS: Extremely difficult to deconstruct. President Bush does not say "I'm the comander in chief, I have to protect national security, so regardless of what Congress says, I can waive the torture ban." It's full of terms like "the unitary executive theory," "the executive branch shall construe this clause consistent with my constitutional authority to run the unitary executive and as commander in chief of the armed services..." What does that mean? Eventually you recognize the code words for "I have absolute control over executive branch officials, and Congress cannot fracture that control" despite numerous Supreme Court rulings from the '30's to the '80's saying that Congress can in fact give executive branch officials independence. So it's not something that can be done easily. In addition it does not say, "this provision says I can't torture but I can," it says, you know, "Section 506 pertains to the treatment of detainees" or "purports to require information," and you have to go and look at those sections and you realize, oh! this is the torture ban!, or oh! this is a whistleblower statute! So even though they are public documents, they're written in very vague ways and very dense ways which interferes with the ability, I think, of people to easily grasp what they're talking about. Which may explain in part why Congress paid so little attention to them over the last five years!
TG: Is there a connection between the record number of signing statements and the low number of vetoes -- which is zero [May 2006, at the time of this interview]?
CS: When you read these signing statements going back five years and you deconstruct what it is they're talking about, it starts to become clear that, in a way, these are better than vetoes Because first of all one can use them to take out selected bits and pieces of the bill that one does not like while keeping the rest. In a real veto, you have to take it all or get rid of it all. Secondly, Congress has the power to override a real veto -- which is one of the checks and balances that the founders put into the Constitution. A signing statement is a unilateral final word on what's going to count and what might as well have not been in the law in the first place. And the third way in which the signing statement is more powerful -- or more attractive to a president -- than the veto power the Constitution gives him is that, in practice, signing statements generally pass without notice in the public, the media, and the Congress. Nobody reads these things. Such that you could see that if President Bush vetoed the torture ban, he would have faced some political flak for that. A great deal of political flak for that. By doing it in a signing statement he was able to do it almost without notice.
TG: And with these signing statements, does the president basically reserve the right to be the final arbiter of what is constitutional as opposed to letting that question be settled by the courts?
CS: Yes. This is one of the ways in which President Bush's use of the signing statements is different than what has come before. In addition to the fact that he's crushed all previous records with respect to the frequency with which he's challenging laws, he's also doing so largely in areas that will never get into court, areas such as national security in which there's not going to be a plaintiff who has standing to sue and therefore to get a question before the Supreme Court.
TG: So do you have any idea who the president informs after he issues a signing statement? Does he tell the agencies that are involved in the statement? Does he tell Congress? Does Congress know when Bush makes a signing statement that he appends to legislation?
CS: Congress could know if they chose to look. The signing statements are public documents. They are filed in the federal record. If one wanted to, one can download them all and laboriously read through them. As I did! But by and large, Congress has not chosen to do that or even thought to do that. Because these have not been a normal part of our government system until now, not to this degree. That doesn't mean that inside the executive branch people are not paying very close attention to them. If you're ordered to carry out a law in a certain way, you can look to the signing statement for instruction. Outside the executive branch, though, until recently, very few people even knew these existed.
TG: How does President Bush's use of these signings compare to a line-item veto?
CS: Well, some would argue that he has, in fact, used these as a line-item veto -- an override-proof line-item veto. Technically, the line-item veto that Congress tried to create in the '90's -- and which the Supreme Court ruled was unconstitutional -- was a more public document and it was aimed more at financial matters, budget lines, than substantive law, like these are aimed at. The way that worked was President Clinton would say, "I don't think we should spend whatever on a bridge to nowhere." He would strike it out and send it back to Congress. Congress would notice that he had done that and had a chance to override it. Even despite the check-and-balance built into it, the Supreme Court said, No, it's unconstitutional. The way the Constitution works is that Congress writes an entire bill and the president either takes it or he leaves it. Veto the whole thing or accept it all. So this seems to be something like a line-item veto on substantive grounds -- since he's not knocking out money for things, he's knocking out restrictions on what he can do or regulations for the military and executive branch that he thinks are his prerogative only to foster. But again, he's saying that this section which would be turned into this statute... No... but the rest is okay. In that sense it is like a line-item veto. Except Congress doesn't generally have notice that he's done it and they have no chance to over-ride his judgment.
TG: Has the White House had any response to your articles about the president's signings?
CS: When I was preparing the torture act story back in January [2006], I was able to get on the phone with an attorney in the White House and have a genuine conversation about what was being said here and why. After that, they've been very uninterested in explaining themselves any further. They have a talking point that -- each time when I call them saying I'm doing another story on this and what would their response be -- "previous administrations have done this as well" and "the president intends to faithfully follow these laws in a manner that is consistent with the Constitution." Both of those talking points, of course, are misleading because "the president intends to follow the law in the manner consistent with the Constitution" means he intends not to follow the law if he thinks it's inconsistent with the Constitution while affording himself the right to interpret the Constitution as he sees fit. "Previous president have done this"? That's true. But no previous president has done this anywhere near as frequently or as aggressively as this president. No previous president has done this while abandoning their veto power.
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That interview, as noted, took place last year. On the occasion of Savage's Pulitzer Prize win last week, the program's producer caught Charlie Savage by phone at Boston's Logan Airport.
NPR: Based on your story, Congress decided to look into this issue. Do you know where that stands right now?
CS: The House Judiciary Committee, when Congress reconvened under Democratic control in January, made as its first oversight issue signing statements. Chairman John Conyers held a hearing on it and said this would be the first of many. He would convene a new oversight investigative team to, among other things, try to make sense of all these different laws this administration has said it could disobey and whether or not it has actually followed through on that threat, as it were. So much of happened in the realm of national security where it's hard to say what they're doing behind closed doors. However, because of the exploding controversy over the US attorneys' firings at the Justice Department, I think the signing statements effort has been put on the back burner for now. Everything in the Judiciary oversight committees has been consumed with trying to make sense of what happened with those prosecutors who were fired.
NPR: Have you still been looking into the story? Is the president still doing a lot of signing statements that you're aware of?
CS: I've actually been on book leave for the last six months. I've been writing a book on presidential power called "Takeover" and which should be out this September, if all goes well. Because of the research and writing of that, I haven't been following day-to-day events quite as closely as I was before. However, I do know that because of the new Congress that has taken over in January, there hasn't been a lot of legislation yet that has reached the president's desk, so we have not yet had a chance to see -- with a different political balance in Washington -- whether that may have a chance to affect his approach to the use of signing statements.