Senior administration officials refuse to join hearing on signing statements

Senior Bush administration officials have refused invitations to testify Tuesday during a House Armed Services Oversight and Investigations Subcommittee hearing examining President Bush's signing statement on the fiscal 2008 defense authorization bill, several congressional aides said Monday.

The panel asked representatives from the Defense and Justice departments to testify on the effect the signing statement would have on implementing four provisions in the policy measure, but senior officials at the agencies ultimately declined the offer.

Instead, today's hearing will feature lawyers from the Government Accountability Office and the Congressional Research Service, as well as two attorneys who have researched the use and impact of presidential signing statements.

The Justice Department declined to comment and a spokesman at the Defense Department did not respond by presstime to a request for comment.

President Bush's widespread use of signing statements to raise constitutional and legal objections to legislation has become a thorny issue on Capitol Hill, where lawmakers, most of them Democrats, have argued that he has used the pronouncements to declare his intention to disregard certain provisions of the laws he has just enacted.

So far, Bush has issued 157 signing statements, 122 of which expressed constitutional or other legal concerns, according to T.J. Halstead, a CRS attorney in the American Law Division, whose prepared testimony was obtained by CongressDaily. In total, Bush's signing statements have been directed at more than 1,000 provisions in various laws.

When he signed the defense measure in late January, Bush asserted that four sections of the bill "impose requirements that could inhibit the president's ability to carry out his constitutional obligations."

Among the provisions was a widely publicized amendment from Sens. Claire McCaskill, D-Mo., and Jim Webb, D-Va., creating a commission to investigate instances of fraud and waste in wartime contracting. Another high-profile provision prohibited the administration from using any funds authorized in the bill to establish permanent U.S. military bases in Iraq or to exercise control over Iraqi oil resources.

In testimony to be delivered today, Halstead raises several questions about Bush's objections to the four provisions in the defense measure, arguing that none of them necessarily raise constitutional or other legal issues.

The wartime contracting commission, for instance, is similar to other commissions established by Congress and "is not vested with any powers that may be considered executive in nature, obviating any separation of powers concerns."

On the issue of permanent bases, Halstead concluded that Bush's objection "rests upon an expansive conception of his constitutional Commander in Chief powers." But Congress's power of the purse gives it the authority to impose binding restrictions on appropriated funds, he says.

Meanwhile, GAO testimony prepared for today's hearing provides a sample study of presidential signing statements, concluding that of 29 provisions reviewed by investigators, federal agencies failed to execute the laws in only nine cases. But that study did not include a close examination of national security, intelligence or foreign relations matters because GAO said it had limited access to information.

Still, Gary Kepplinger, GAO's general counsel, sees a parallel between three provisions the agency found were ignored or delayed by the administration and three provisions Bush highlighted in his signing statement on the authorization bill.

One of the defense provisions is the wartime contracting commission, while another other seeks to protect contract employees who serve as whistle-blowers on Defense Department contracts. The third provision requires the U.S. intelligence community to respond within 45 days to requests by the House and Senate Armed Services committees for intelligence assessments, reports, estimates and legal opinions.

But Kepplinger suggests in his written testimony that non-compliance with those congressional directives is uncertain. "Given our findings regarding these similar provisions, the subcommittee may wish to stay abreast of DOD's implementation of the provisions in the [defense bill] to which the president objected in his signing statement," he says.