Sunday, March 11, 2007
Getting To It
The most recent issue of Mother Jones, which is one of my favorite magazines (I used to get a subscription for my birthday by my very apolitical girlfriend in the 1980s), has a piece taking on the use of the signing statement by the current Bush administration, and some of it corrects the record but mostly it distorts it. Given that it is a partisan magazine, I suppose I can understand (though not accept) some deliberate misconstructions of the Bush record.
The article, written by investigative reporter Daniel Schulman, is one of the first to acknowledge that the history of the signing statement reaches back to the presidency of James Monroe, and does so in the opening sentence. That really is a break from the were most partisans are, who are unwilling to accept that it predates the current presidency. But it doesn't take long before the report falls into a familiar rut.
First, if the author really wants to make an impact upon his audience, he should take the time to update his numbers. As it stands, he writes that the "Bush administration alone has challenged 800 statutes" in comparison to the 600 (or so) from all previous presidents combined. The most recent numbers that I have is a challenge of 1,151 statutes in just 150 signing statements. It seems to me that the latter figure adds "umph" to his point.
Second, he deliberately misinforms his reader by leaving important information out of his story. After his opening paragraph, he proceeds to list several "mini-case studies" of how the administration has abused the law via the use of the signing statement. And his first "mini-case" is the signing of the Sarbanes-Oxley Act of 2002. I also used the signing statement of Sarbanes-Oxley in a 2005 conference paper, but in exactly the opposite manner. Schulman points to Bush's narrowing the definition of "whistleblower" in the law. Schulman notes that "[O]nly whistleblowers who squeal directly to the congressman or a committee that is investigating the relevant issue will be protected." He adds a quote by Senator Charles Grassley (R.IA) in response to this statement, which argued that the Bush interpretation applied only to those lucky enough "to find the one member of Congress out of 535 who happens to be the chairman of the appropriate committee who also just happens to already be conducting an investigation, even though the problem identified may not have come to light yet."
Actually, this whole incident represents a case study in how not to challenge the Congress over the meaning of law. When Bush signed the bill, which contained a public signing ceremony and a 1,527 statement that said nothing of the treachery contained in the smaller, private, written statement. In the written statement, Bush stated:
Given that the legislative purpose of section 1514A of title 18 of the U.S. Code, enacted by section 806 of the Act, is to protect against company retaliation for lawful cooperation with investigations and not to define the scope of investigative authority or to grant new investigative authority, the executive branch shall construe section 1514A(a)(1)(B) as referring to investigations authorized by the rules of the Senate or the House of Representatives and conducted for a proper legislative purpose.
This was a high profile piece of legislation which also resonated with the public. It is clear that theories of unilateral action would suggest that the president was free to act so long as he did not step upon the collective toes of the Congress and while he operated under the radar of the public, press, and Congress. When the president challenged something that was "high profile" as far as Congress was concerned, a loss for the president was imminent. One could certainly argue that the administration could be forgiven for being drunk on the power of the post-9/11 environment's high public opinion approval polls. But what is clear is that theories--at least good ones--do a very good job of predicting action, and the theory of unilateral action certainly held.
After Senators Grassley and Leahy (D. VT) were informed of Bush's interpretation, and given the amount of time they devoted to passing the bill, they fired off a letter to Bush arguing that the "narrow interpretation [was] at odds with the plain language of the statute and [risked] chilling corporate whistleblowers who" wished to report wrong doing. Later, after the administration didn't appear to back away from the interpretation, they sent off another letter expressing their "desire [was] to protect the well-intentioned employee who contacts his elected representative (or any representative for that matter) and not require that employee to consult the Congressional Directory and Congressional Record prior to making his call to determine whether he/she will be afforded the whistleblower protections of the Act." Instead of replying on the merits, the administration simply failed to reply, hoping, it would seem, that the issue would just go away. And given how Congress can only focus on the present, the administration probably felt confident that it would just go away. Two months later, the Acting Solicitor for the Department of Labor (and son of Justice Scalia) filed an amicus brief in a whistleblower case before the Department of Labor administrative review board where he applied Bush's narrow interpretation in his signing of Sarbanes. It was in response to this that Grassley made the statement listed above by Schulman.
What Schulman does not tell us, and thus leads us to believe that Bush's interpretation prevailed, is that for some reason, which no one can seem to tell me, in January 2003, the administration backed off their interpretation of the whistleblower provision and adopted the view of the Congress. In a letter from the new Acting Solicitor for the Department of Labor, Howard M. Radzely,to Senator Grassley, it expressed the willingness of the Department of Labor--and by extension the administration--to go along with the Congress. He wrote:
It is the Department's view that under Sarbanes-Oxley, complaints to individual Members of Congress are protected, even if such Member is not conducting an ongoing Committee investigation within the jurisdiction of a particular Congressional committee, provided that the complaint relates to conduct that the employee reasonably believes to be a violation of one of the enumerated laws or regulations.
In the end, the administration lost. Not only did it acquiesce to the demands of the Congress, but it also caused continued congressional meddling. Senator Leahy, who was shocked by the use of the signing statement (and I also hypothesized that this is when he became "aware" of their existence), placed into a Department of Justice appropriations authorization bill of that same year a requirement (see "Section 530D") that the administration inform Congress whenever it refused to defend or enforce a provision of law. As I have noted elsewhere, my FOIA requests to the DOJ have gone unfulfilled, and given this response to inquiries made of Gonzales and his fidelity to the Leahy mandate, I doubt I will ever know if the Bush DOJ has faithfully carried out this requirement. Nonetheless, Bush's action burdened him, and future presidents, of the time it will take answering these questions from Members of Congress whenever they look to score political points. So this mini-case cannot represent the optimum use of the signing statement by the administration, as Schulman leads us to believe it does.
In one of the other mini-case studies, Schulman includes the recent signing statement regarding the claim that the administration may open our mail without a warrant, pretty much as it pleases. As I have documented elsewhere, I will simply restate that this is the meekest of statements the administration has made and does not represent the power of the signing statement. What he, and others continue to overlook is the signing statement to the "Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006," which is a stark violation of international agreements we have held with our allies regarding the certification of, and the sale of nuclear materials to non-nuclear states. Further, given our history in siding with the nuclear non-proliferation treaty, the statement also forces us to lurch in a direction away from past practice. This statement has not even been a blip on the radar of anyone inside the United States--particularly to the critics of the administration.
Fourth, and finally, Mother Jones has long prided itself as a magazine that stands by a long tradition of investigative reporting--a practice that has been severely threatened in the past decade by corporate consolidation in the media, among other things. Mother Jones often finds its stories listed in Project Censored's accounting of censored news stories for any given year. Thus rather than parroting what one may find on any anti-Bush blog about the high number of challenges the President has made to provisions of law, Mr. Schulman should instead be putting his energy into investigating how many of those challenges have been carried out. I have long contended that reporters represent our best chance to coming to an understanding as to just what kind of a threat these signing statements make to our democracy. But we will never know (or at least not until the administration has left town) just how vigorous, cunning, or strategic the it has been so long as we only focus on the claims.
So Mr. Schulman--please live up to the fine standing of Mother Jones and those investigators who came before you and uncover what is really going on inside the Bush administration and its use of the signing statement.
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The article, written by investigative reporter Daniel Schulman, is one of the first to acknowledge that the history of the signing statement reaches back to the presidency of James Monroe, and does so in the opening sentence. That really is a break from the were most partisans are, who are unwilling to accept that it predates the current presidency. But it doesn't take long before the report falls into a familiar rut.
First, if the author really wants to make an impact upon his audience, he should take the time to update his numbers. As it stands, he writes that the "Bush administration alone has challenged 800 statutes" in comparison to the 600 (or so) from all previous presidents combined. The most recent numbers that I have is a challenge of 1,151 statutes in just 150 signing statements. It seems to me that the latter figure adds "umph" to his point.
Second, he deliberately misinforms his reader by leaving important information out of his story. After his opening paragraph, he proceeds to list several "mini-case studies" of how the administration has abused the law via the use of the signing statement. And his first "mini-case" is the signing of the Sarbanes-Oxley Act of 2002. I also used the signing statement of Sarbanes-Oxley in a 2005 conference paper, but in exactly the opposite manner. Schulman points to Bush's narrowing the definition of "whistleblower" in the law. Schulman notes that "[O]nly whistleblowers who squeal directly to the congressman or a committee that is investigating the relevant issue will be protected." He adds a quote by Senator Charles Grassley (R.IA) in response to this statement, which argued that the Bush interpretation applied only to those lucky enough "to find the one member of Congress out of 535 who happens to be the chairman of the appropriate committee who also just happens to already be conducting an investigation, even though the problem identified may not have come to light yet."
Actually, this whole incident represents a case study in how not to challenge the Congress over the meaning of law. When Bush signed the bill, which contained a public signing ceremony and a 1,527 statement that said nothing of the treachery contained in the smaller, private, written statement. In the written statement, Bush stated:
Given that the legislative purpose of section 1514A of title 18 of the U.S. Code, enacted by section 806 of the Act, is to protect against company retaliation for lawful cooperation with investigations and not to define the scope of investigative authority or to grant new investigative authority, the executive branch shall construe section 1514A(a)(1)(B) as referring to investigations authorized by the rules of the Senate or the House of Representatives and conducted for a proper legislative purpose.
This was a high profile piece of legislation which also resonated with the public. It is clear that theories of unilateral action would suggest that the president was free to act so long as he did not step upon the collective toes of the Congress and while he operated under the radar of the public, press, and Congress. When the president challenged something that was "high profile" as far as Congress was concerned, a loss for the president was imminent. One could certainly argue that the administration could be forgiven for being drunk on the power of the post-9/11 environment's high public opinion approval polls. But what is clear is that theories--at least good ones--do a very good job of predicting action, and the theory of unilateral action certainly held.
After Senators Grassley and Leahy (D. VT) were informed of Bush's interpretation, and given the amount of time they devoted to passing the bill, they fired off a letter to Bush arguing that the "narrow interpretation [was] at odds with the plain language of the statute and [risked] chilling corporate whistleblowers who" wished to report wrong doing. Later, after the administration didn't appear to back away from the interpretation, they sent off another letter expressing their "desire [was] to protect the well-intentioned employee who contacts his elected representative (or any representative for that matter) and not require that employee to consult the Congressional Directory and Congressional Record prior to making his call to determine whether he/she will be afforded the whistleblower protections of the Act." Instead of replying on the merits, the administration simply failed to reply, hoping, it would seem, that the issue would just go away. And given how Congress can only focus on the present, the administration probably felt confident that it would just go away. Two months later, the Acting Solicitor for the Department of Labor (and son of Justice Scalia) filed an amicus brief in a whistleblower case before the Department of Labor administrative review board where he applied Bush's narrow interpretation in his signing of Sarbanes. It was in response to this that Grassley made the statement listed above by Schulman.
What Schulman does not tell us, and thus leads us to believe that Bush's interpretation prevailed, is that for some reason, which no one can seem to tell me, in January 2003, the administration backed off their interpretation of the whistleblower provision and adopted the view of the Congress. In a letter from the new Acting Solicitor for the Department of Labor, Howard M. Radzely,to Senator Grassley, it expressed the willingness of the Department of Labor--and by extension the administration--to go along with the Congress. He wrote:
It is the Department's view that under Sarbanes-Oxley, complaints to individual Members of Congress are protected, even if such Member is not conducting an ongoing Committee investigation within the jurisdiction of a particular Congressional committee, provided that the complaint relates to conduct that the employee reasonably believes to be a violation of one of the enumerated laws or regulations.
In the end, the administration lost. Not only did it acquiesce to the demands of the Congress, but it also caused continued congressional meddling. Senator Leahy, who was shocked by the use of the signing statement (and I also hypothesized that this is when he became "aware" of their existence), placed into a Department of Justice appropriations authorization bill of that same year a requirement (see "Section 530D") that the administration inform Congress whenever it refused to defend or enforce a provision of law. As I have noted elsewhere, my FOIA requests to the DOJ have gone unfulfilled, and given this response to inquiries made of Gonzales and his fidelity to the Leahy mandate, I doubt I will ever know if the Bush DOJ has faithfully carried out this requirement. Nonetheless, Bush's action burdened him, and future presidents, of the time it will take answering these questions from Members of Congress whenever they look to score political points. So this mini-case cannot represent the optimum use of the signing statement by the administration, as Schulman leads us to believe it does.
In one of the other mini-case studies, Schulman includes the recent signing statement regarding the claim that the administration may open our mail without a warrant, pretty much as it pleases. As I have documented elsewhere, I will simply restate that this is the meekest of statements the administration has made and does not represent the power of the signing statement. What he, and others continue to overlook is the signing statement to the "Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006," which is a stark violation of international agreements we have held with our allies regarding the certification of, and the sale of nuclear materials to non-nuclear states. Further, given our history in siding with the nuclear non-proliferation treaty, the statement also forces us to lurch in a direction away from past practice. This statement has not even been a blip on the radar of anyone inside the United States--particularly to the critics of the administration.
Fourth, and finally, Mother Jones has long prided itself as a magazine that stands by a long tradition of investigative reporting--a practice that has been severely threatened in the past decade by corporate consolidation in the media, among other things. Mother Jones often finds its stories listed in Project Censored's accounting of censored news stories for any given year. Thus rather than parroting what one may find on any anti-Bush blog about the high number of challenges the President has made to provisions of law, Mr. Schulman should instead be putting his energy into investigating how many of those challenges have been carried out. I have long contended that reporters represent our best chance to coming to an understanding as to just what kind of a threat these signing statements make to our democracy. But we will never know (or at least not until the administration has left town) just how vigorous, cunning, or strategic the it has been so long as we only focus on the claims.
So Mr. Schulman--please live up to the fine standing of Mother Jones and those investigators who came before you and uncover what is really going on inside the Bush administration and its use of the signing statement.
