The Obfuscation Report

Report sees broad strategy

By Charlie Savage, Globe Staff | October 5, 2006

WASHINGTON -- President Bush's frequent use of signing statements to assert that he has the power to disobey newly enacted laws is ``an integral part" of his ``comprehensive strategy to strengthen and expand executive power" at the expense of the legislative branch, according to a report by the non partisan Congressional Research Service.

In a 27-page report written for lawmakers, the research service said the Bush administration is using signing statements as a means to slowly condition Congress into accepting the White House's broad conception of presidential power, which includes a presidential right to ignore laws he believes are unconstitutional.

The ``broad and persistent nature of the claims of executive authority forwarded by President Bush appear designed to inure Congress, as well as others, to the belief that the president in fact possesses expansive and exclusive powers upon which the other branches may not intrude," the report said.

Under most interpretations of the Constitution, the report said, some of the legal assertions in Bush's signing statements are dubious. For example, it said, the administration has suggested repeatedly that the president has exclusive authority over foreign affairs and has an absolute right to withhold information from Congress. Such assertions are ``generally unsupported by established legal principles," the report said.

Despite such criticism, the administration has continued to issue signing statements for new laws. Last week, for example, Bush signed the 2007 military budget bill, but then issued a statement challenging 16 of its provisions.

The bill bars the Pentagon from using any intelligence that was collected illegally, including information about Americans that was gathered in violation of the Fourth Amendment's protections against unreasonable government surveillance.

In Bush's signing statement, he suggested that he alone could decide whether the Pentagon could use such information. His signing statement instructed the military to view the law in light of ``the president's constitutional authority as commander in chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch."

Bush also challenged three sections that require the Pentagon to notify Congress before diverting funds to new purposes, including top-secret activities or programs. Congress had already decided against funding. Bush said he was not bound to obey such statutes if he decided, as commander in chief, that withholding such information from Congress was necessary to protect security secrets.

Like all Congressional Research Service reports, the report, dated Sept. 20 and titled ``Presidential Signing Statements: Constitutional and Institutional Implications," was written for members of Congress and was not made available to the public. The Federation of American Scientists has posted a copy on its website.

The report marked the latest installment in a recent debate over the Bush administration's use of signing statements.

A signing statement is issued by the president as he signs a bill into law. It describes his interpretation of the bill, and it sometimes declares that one or more of the laws created by the bill are unconstitutional and thus need not be enforced or obeyed as written.

Signing statements date to the 19th century but were rare until the 1980s. The Bush-Cheney administration has taken the practice to unprecedented levels.

Bush has used signing statements to challenge more than 800 laws that place limits or requirements on the executive branch, saying they intrude on his constitutional powers. By contrast, all previous presidents challenged a combined total of about 600 laws.

This year, The Boston Globe published a detailed accounting of the laws Bush has claimed he has the power to disobey, including a torture ban and oversight provisions in the USA Patriot Act. The report prompted widespread concerns, but critics have not been able to agree on precisely the nature of the problem.

For example, the American Bar Association concluded that the issue was the mechanism itself.

The American Bar Association called signing statements ``contrary to the rule of law and our constitutional separation of powers." It said presidents cannot sign bills and then declare parts of them unconstitutional because a president has only two choices -- to sign a bill and enforce it as written, or to veto it and give Congress a chance to override the veto.

This year Arlen Specter , a Pennsylvania Republican who chairs the Senate Judiciary Committee, held a hearing on signing statements during which he accused the administration of unconstitutionally trying to ``cherry-pick" bills, keeping only the parts it likes.

At that hearing in June, Michelle Boardman , an administration lawyer, defended the legality of signing statements. She said statements are necessary because Congress often bundles many different laws into a single bill, making it impractical to veto the entire package because some parts are flawed.

``Signing statements serve a legitimate and important function, and are not an abuse of power," Boardman testified