SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 104
September 28, 2006

Secrecy News Blog: http://www.fas.org/blog/secrecy/

Support Secrecy News: http://www.fas.org/static/contrib_sec.jsp

BUSH USES SIGNING STATEMENTS TO LEVERAGE POWER FROM CONGRESS, CRS SAYS

The Bush Administration's use of Presidential signing statements to assert objections to enacted legislation reflects an attempt to expand and consolidate Presidential authority at the expense of Congress, according to a new analysis from the Congressional Research Service.

"It seems evident that the Bush signing statements are an integral part of the Administration's efforts to further its broad view of presidential prerogatives and to assert functional and determinative control over all elements of the executive decisionmaking process," the CRS study said.

"It appears that recent administrations, as made apparent by the voluminous challenges lodged by President George W. Bush, have employed these instruments in an attempt to leverage power and control away from Congress by establishing these broad assertions of authority as a constitutional norm."

Signing statements have been issued by Presidents for over a century and are not inherently problematic. To the contrary, they may be beneficial to the extent that they alert Congress and the public to Presidential actions and intentions.

Yet the Bush Administration has been issuing signing statements with growing frequency, as reported earlier this year by Charlie Savage of the Boston Globe, and in a way that involves a "qualitative difference" from their use in the past, according to the CRS.

The Bush signing statements appear to be part of a larger campaign to seize increased Presidential authority, the CRS said.

"The broad and persistent nature of the claims of executive authority forwarded by President Bush appear designed to inure [i.e., to accustom] 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 CRS report stated.

It follows that "the appropriate focus of congressional concern should center not on the issuance of signing statements themselves, but on the broad assertions of presidential authority forwarded by Presidents and the substantive actions taken to establish that authority."

The CRS study, written by T.J. Halstead, provides abundant information on the history of presidential signing statements, describes their limited impact on the judicial process, critiques a recent American Bar Association report on the subject, and more.

Like other CRS products, this study has not been made directly available to the public by CRS. A copy was obtained by Secrecy News.

See "Presidential Signing Statements: Constitutional and Institutional Implications," September 22, 2006:


CONGRESS POISED TO TRANSFER POWER TO THE EXECUTIVE

Instead of defending Congressional prerogatives, Congress appears eager to transfer new, unchecked authority to the President in the name of combating terrorism.

A bill on military commissions for trial of enemy detainees that was approved in the House this week would permanently alter the complexion of the U.S. government by authorizing abuse of prisoners, curtailing prisoner access to the judicial system, and other previously unthinkable steps.

For critical perspectives on the military commissions bill, see "The Blind Leading the Willing" by Dahlia Lithwick, Slate, September 27:

and "Rushing Off a Cliff," New York Times (editorial)(free reg. req'd), September 28:

The September 27 House debate, leading to approval of the bill, is here:

The September 27 Senate floor debate on the bill is here:

Meanwhile, House Democrats said that pending legislation on domestic intelligence surveillance would dismantle existing checks and balance and traduce the Constitution.

H.R. 5825, the Electronic Surveillance Modernization Act, "is a dangerously broad bill that would turn FISA [the Foreign Intelligence Surveillance Act, which regulates domestic intelligence surveillance] on its head by making warrantless surveillance the rule rather than the exception," the House Democrats said.

"[Its] vague definitions and broad loopholes allow the Executive Branch to conduct electronic surveillance of telephone calls and e-mail in the United States without court orders and without meaningful oversight."

Their views, detailed in a dissent to a new report of the House Intelligence Committee, were rejected along party lines by the Republican majority.

See "Electronic Surveillance Modernization Act," House Report 109-680, part 1, September 25:


PROTECTION OF UNCLASSIFIED SECURITY-RELATED INFORMATION

Classification is the predominant means of protecting national security information. But even when information is unclassified, there are a number of statutes that can be used to restrict its public availability on security-related grounds.

Such statutory controls on unclassified security-related information are usefully cataloged in a new report from the Congressional Research Service.

See "Protection of Security-Related Information," September 27, 2006:

For no extra charge, here are a couple of other recent CRS reports obtained by Secrecy News.

"U.S.-India Nuclear Cooperation: A Side-By-Side Comparison of Current Legislation," September 5, 2006:

"The Use of Federal Troops for Disaster Assistance: Legal Issues," updated August 14, 2006:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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