Just hours before his State of the Union address on January 28, and with no fanfare, President Bush signed the 2008 National Defense Authorization Act, a $696 billion military spending measure that included a 3.5 percent pay raise for the troops. The president had pocket vetoed a similar version of the bill in late December, declaring that he couldn't accept provisions that would have allowed Americans to sue the new Iraqi government for crimes committed by Saddam Hussein's regime.
But although Bush signed the new version, his support came with a catch -- a signing statement in which he wrote, "Provisions of the Act, including 841, 846, 1079, and 1222, purport to impose requirements that could inhibit" his "ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to supervise the executive branch, and execute his authority as Commander in Chief." In essence, the president was declaring, as he has many times before, that he reserved the right to ignore portions of the law if he felt they unconstitutionally violated his prerogatives or those of the executive branch.
The signing statement was overshadowed by the State of the Union speech and the Florida GOP presidential primary the next day, and it didn't make much news. Still, the statement left members of Congress, particularly Democrats, dismayed after working hard to change the original bill to satisfy the White House's previous veto concerns.
Democrats took to the Senate floor the next day to insist that the president was amending the bill retroactively. "I am at a total loss here," said Virginia's Jim Webb, who co-sponsored one of the provisions that Bush cited in his statement -- language that would create a commission to examine "waste, fraud, and abuse" of wartime contracting in Iraq and elsewhere. Given the authorization bill's broad bipartisan and bicameral support -- the House passed it 369-46 and the Senate 91-3 -- Webb added, "I am amazed to see this kind of language employed with respect to this legislation."
A seemingly bemused Sen. Carl Levin, D-Mich., chairman of the Armed Services Committee, was nonetheless careful in expressing his displeasure. Noting that one of the targeted provisions would deny funds for building permanent military bases in Iraq or Afghanistan, Levin said that "Congress has a right to expect" the president to implement all of the act's provisions, "not just the ones he happens to agree with."
Indeed, the administration is negotiating a status-of-forces agreement with the Iraqi government that would replace the United Nations mandate, which expires in 11 months, and give U.S. troops permission to remain in the country. Critics fear that the agreement is meant to lock the next president into a long-term commitment in Iraq, although the secretaries of Defense and State have firmly denied that in testimony to Congress. Further, critics warn that the new agreement intends to give civilian security contractors, such as Blackwater Worldwide, immunity from Iraqi law.
Members of Congress say they plan to enforce those provisions in the Defense authorization bill about which the president expressed reservations. "We are going to go forward with this commission," Webb declared from the Senate floor, calling for cooperation from the administration in investigating wartime fraud. "We are going to move as rapidly as we can, because the clock is ticking in terms of the statute of limitations on some of the charges that might be filed."
Some Republicans also want to see the wartime contracting commission set up. "I know some of the members on my side of the aisle perceive the potential for this commission to be used in a political framework. I'm not worried about that," said Sen. Tom Coburn of Oklahoma, who supports the commission's goal of bringing transparency to military security contracting. "I think it is intended to hold the agencies accountable for how they spend the money and whether we are going to get a handle on our contracting procedures."
Signing statements aren't new, of course. Bush has issued 156 of them, covering more than 750 statutes -- more statutes than any other president -- including a signing statement for every Defense authorization bill since 2001.
But professor John T. Woolley, chairman of the political science department at the University of California (Santa Barbara) and co-founder of the American Presidency Project, a Web archive of presidential papers, wondered why the White House failed to voice its concerns over these provisions -- which were major discussion points in the House and Senate -- as the legislation moved through Congress. "I think we have to see this as a sequence of strategic moves," Woolley said. If the original pocket veto had killed the bill, and a slightly altered new one had not been quickly passed, the president's reservations about the four provisions might have remained unknown, he noted.
In fact, critics suggest that Bush may have pocket vetoed the first version of the bill less because of the lawsuits against the Iraqi government and more because of Congress's penchant for adding oversight provisions.
Two of the three provisions Bush cited concern contracting oversight. The first, Section 841, perhaps the most important, establishes the Webb-McCaskill Commission on Wartime Contracting (named for Sens. Webb and Claire McCaskill, D-Mo.), which would give broad oversight powers to Congress to hold hearings on waste and fraud in Iraq and Afghanistan contracting. The commission is also charged with recommending a process that defines which roles on the battlefield are inherently governmental and hence not subject to privatization. The second provision, Section 846, strengthens protections for whistle-blowers reporting contractor abuse. The third provision, Section 1079, orders intelligence agencies to provide Congress with all the documents it requests within 45 days.
Interestingly, the Defense authorization bill has dozens of nuts-and-bolts provisions about government contracting in the sections that Bush cites. Some of them mandate a waiting period for retiring members of the military before they can go to work for military contractors. Other provisions require tracking the identities of private security contractors working on the battlefield; mandating that contractors record their weapons discharges; and ending the military's awarding of no-bid contracts. And going back months, the White House has made clear its objections about congressional proposals that it sees as intruding on the executive's authority over contracting.
In October, the White House said it "strongly" opposed and had "grave concerns" about the Military Extraterritorial Judicial Expansion and Enforcement Act of 2007. The original act established U.S. criminal jurisdiction over defense contractors in 2000, but a House-passed bill last year broadened it to include criminal jurisdiction over all U.S. contractors in Iraq working for the government. The bill is now stalled in the Senate.
In December, Bush threatened to veto the 2008 Intelligence Authorization Act because it mandated that the CIA follow the limited interrogation techniques authorized in the Army field manual rather than the broader techniques -- waterboarding, for instance -- used by the CIA and formerly sanctioned by the White House. That bill would also establish an intelligence community inspector general, put caps on the number of employees in the Office of the Director of National Intelligence, and request a "significant amount of information" on the number of private intelligence contractors, whose numbers exploded after September 11. For an unprecedented third year in a row, the Intelligence bill has not become law and has been funded with a continuing resolution.
As for the Webb-McCaskill commission, lawmakers are waiting to see whether the White House will name its two representatives to the eight-member panel. The commission is to have a total of four Democrats from the House and Senate, plus two Republican lawmakers and two White House representatives. In recent days the White House has indicated it might, after all, help set up the commission. Spokespersons from Webb's office say they are cautiously optimistic that the president will comply.
Woolley, fascinated by the politicking involved with the Defense bill, the president's signing statements, and the constitutional implications, said that Bush's stance is "pretty clever politics, but it's not clear that it's good democracy."