Proyectos de ley sobre Pueblos Indígenas, Patrimonio Cultural y Repatriación al 2019

One of the curious moves made during the Obama administration in the use of signing statements was a departure from the notion of a unified executive branch. Where

the George W. Bush administration emphasized a defense of signing statements that relied on the assertion of UET as a justification for expansive presidential action, the linguistic hallmarks of that ideological approach were almost entirely absent from the Obama administration signing statements. This is not to say that the signing statements issued by the Obama administration were prima facie less problematic, it does point towards the need for a more nuanced understanding of how the use of signing statements by the Obama administration differed from the George W. Bush administration.

Following the 2010 midterm elections which gave the Republican Party control over the House of Representatives the Obama administration faced a hostile Congress.

One of the expressions of this hostility would be found in the yearly National Defense Authorization Acts which would, because of their necessity for the ongoing funding of the military, become a repository for pieces of legislation that would be vetoed if passed separately. Against this backdrop, the ongoing disagreement with Congress over the treatment of detained persons continued.

One example of this can be found in the National Defense Authorization Act of 2012 (NDAA 2012). A year removed from the signing statement resisting congressional attempts to sustain the practice of indefinite detention by withholding funding, the Obama administration issued another signing statement that responded to language in NDAA 2012 that sought to constrain more directly the decision making power of the President.

The provisions of greatest concern are sections 1022-1029 which outlined the categories of persons who could be subject to military detention and subsequently how

they could be tried, as well as continuing to block the funding of the efforts to transfer detainees. At the moment of its passage, section 1022 was subject to the most public criticism, for an apparent vagueness that could be interpreted to refer even to those who reported on Al Qaeda because such reporting could provide “substantial support” for the organization. Culminating in Hedges v. Obama, a court case led by the well-known reporter and activist Christopher Hedges, there was significant public scrutiny over the potential reach of the provision. Although the Obama administration’s signing statement would not speak to that particular concern directly, the atmosphere of public scrutiny influenced the nature of the signing statement issued.

It was against that backdrop that the Obama administration issued a signing statement that reads quite differently from those of the George W. Bush administration and other Obama administration signing statements. The statement, after providing an initial explanation of why he had signed NDAA 2012 and describing the success of his policies in pursuing the terror wars, outlines a general objection:

Against that record of success, some in Congress continue to insist upon restricting the options available to our counterterrorism professionals and interfering with the very operations that have kept us safe. My Administration has consistently opposed such measures. Ultimately, I decided to sign this bill not only because of the critically important services it provides for our forces and their families and the national security programs it authorizes, but also because the Congress revised provisions that otherwise would have jeopardized the safety, security, and liberty of the American people. Moving forward, my Administration will interpret and implement the provisions described below in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded (Para. 3).¹¹⁹

119 Obama, Barack. “Statement on Signing the National Defense Authorization Act for Fiscal Year 2012.”

December 31, 2011. Online by Gerhard Peters and John T. Woolley, The American Presidency Project.

http://www.presidency.ucsb.edu/ws/index.php?pid=98513.

In this general expression of dissent there are three important elements. First, the actions of Congress are framed in a contrarian manner that undermines the success in the terror wars described above to delegitimize congressional action.

Second, the more favorable action taken by Congress to ameliorate the concerns of the presidency are outlined as the conditions which made it possible for the President to take action. Third, the President asserts a role in interpreting provisions in keeping with the flexibility required to maintain the safety and values “on which this country was founded.”

In short, this paragraph poses a different approach from the Bush

administration in taking exception to parts of legislation. The first two elements work to posit the President, not as the unified power over the legislative branch, but as a participant in competition with that branch. This approach subtly shifts the focus from the question of UET, to one of more direct competition between the presidential agenda and the will of Congress. In this shift, the shared values explicitly named and alluded to by the President become shared concepts that both branches contest, but nonetheless assent to their importance.

In place of an emphasis on unity, the role of the President is described in terms of flexibility necessary to pursue those shared goals. In this view,

flexibility infers the ability and need for presidential interpretation to play a more central role in the practice of governance. This subtle reframing of the role of the President provides a distinct view from the approach taken by the George W.

Bush administration, in that it does not assert a role as final arbiter over the acceptability of the laws, but instead the need to have a free hand in interpreting the law.

This view is supported by the first line of the subsequent paragraph, which points out that section 1021 which affirmed the authority of the President to carry out ongoing detention programs, “breaks no new ground and is unnecessary.”

This wording, not aimed at taking exception, but voicing an interpretation is representative of just such an approach. By not taking exception, but emphasizing the view of the President that the language is redundant, the statement affirms the role of the President as interpreter without taking the more dubiously

constitutional step of attempting to mitigate legislative action. Going a step further the statement points out that the restrictions in that section had been advocated by the Obama administration.

This is not to say that the use of signing statements by the Obama administration abandons altogether the practice of mitigating legislative action.

In the two subsequent paragraphs the Obama administration outlines a separate approach. The first paragraph holds that:

Section 1022 seeks to require military custody for a narrow category of non-citizen detainees who are "captured in the course of hostilities authorized by the Authorization for Use of Military Force." This section is ill-conceived and will do nothing to improve the security of the United States. The executive branch already has the authority to detain in military custody those members of al-Qa'ida who are captured in the course of hostilities authorized by the AUMF, and as Commander in Chief I have directed the military to do so where appropriate. I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat. While section 1022 is

unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations (para. 5).¹²⁰

In this paragraph the statement positions the executive branch in a more adversarial mode. In the first instance, the unnecessary (if arguably accurate) conclusion that the section was “ill-conceived” becomes an ad hominem attack on the credibility of the provision by blaming Congress for a lack of foresight in rendering a decision on foreign policy. Second, the term “reject any approach” positions the Obama administration as opposed to Congress.

Despite this adversarial mode, the approach taken by the Obama administration is distinct from those of the Bush administration. Rather than refusing to enforce the provision, the Obama administration instead is arguing that an interpretation is available that reconciles the intention of Congress with the will of the Obama administration. This interpretation is then positioned as a necessary approach because it avoids “undue harm to our current operations.” Ultimately, this approach provides an interpretation that emphasizes the desirable ends of the policy choices of the President as the standard against which the actions of the legislative branch will be measured.

The subsequent paragraph attempts to outline just how such an interpretation would work. In that paragraph the Obama administration begins by framing section 1022 as providing “the minimally acceptable amount of flexibility to protect national security.”

In this framing, the Obama administration posits the provision as ultimately less than ideal, but which can be workable within the parameters of a specific interpretation. The

120 Obama, Barack. “Statement on Signing the National Defense Authorization Act for Fiscal Year 2012.”

December 31, 2011. Online by Gerhard Peters and John T. Woolley, The American Presidency Project.

http://www.presidency.ucsb.edu/ws/index.php?pid=98513.

statement continues, “Specifically, I have signed this bill on the understanding that section 1022 provides the executive branch with broad authority to determine how best to implement it, and with the full unencumbered ability to waive any military custody requirement, including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States.” In this sentence the Obama administration posits an interpretation that emphasizes one paragraph within the section that allows the other provisions to be waived for the purposes of national security. In so doing, the Obama administration coopts the language of the bill to maintain the flexibility of the presidency to render a decision which is counter to the larger intent of the bill.

Later in that same paragraph, this utilitarian reading of the section is justified by the argument that, “As my administration has made clear, the only responsible way to combat the threat al-Qa’ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system.” The emphasis on practicality here poses a distinct position from that taken by the Bush administration. Where the Bush administration preferred an argument rooted in constitutional interpretation, the Obama administration is favoring a more utilitarian approach defined by the exigencies created by al-Qa’ida. Yet what is evinced here is an affirmation of a core principle found in UET that the President must have the authority to make decisions with a free hand, in this case, over the treatment of individual persons.

That this treatment is to be handled on a case by case basis is significant. In pushing for a case by case treatment for detainees the Obama administration undermines the conception of a universal set of rights due to detained persons as a category. Instead,

national security defined by the need to fight al-Qa’ida becomes the measure by which the treatment of detainees will be measured. Even as the Obama administration is positioning itself as defending an alternative to military detention, the values that guide the decision to exercise that alternative are the same values that undergird the general practice of indefinite detention. In asserting the sovereign decision over the lives of individual detainees, the signing statement renders those lives subservient to the question of U.S. national security interests.

The paragraph concludes with a remarkable holding. Pointing out that a failure to maintain the current policies of the executive branch, the Obama administration

concluded, “I will therefore interpret and implement section 1022 in the manner that best preserves the same flexible approach that has served us so well for the past 3 years and that protects the ability of law enforcement professionals to obtain the evidence and cooperation they need to protect the Nation.” In this conclusion the Obama

administration reiterates the principle of flexibility that he argues has been crucial to his efforts. In couching flexibility as a means necessary to achieve the end, what Obama preserves is a notion that the executive is not bound by the Constitution, but rather to the exigencies of the moment.

What differentiates this signing statement from those issued by the George W.

Bush administration is a language that seeks to work with the language of the legislation.

Taking the greatest possible advantage of its language, the Obama administration

advances an interpretation that would appear to cut against the larger intention of the bill.

Nonetheless, the inclusion of an exception for universal military detention rooted in

national security left the Obama administration a reasonable basis for asserting an interpretation rooted in the principle of flexibility. This approach, emphasizing a literal interpretation of the text based on a broader principle represents a shift in technique from the norms of the Bush administration that emphasized either a deferral to language outside of the legislation, such as Supreme Court cases, or a distinct constitutional theory supporting an interpretation, to manipulating the language of the text to support a

preferred interpretation of the legislation.

What this signing statement underscores is the importance of understanding genre not only in terms of constraints, but how flexibility is afforded within those constraints.

For Presidents the use of signing statements affords the possibility for diverse and nuanced approaches. For the Obama administration, this took for the form of a more nuanced approach, specially tailored to make more limited interventions against the actions of Congress described not in terms of far reaching presidential power rooted in the Constitution but instead in practical reasoning required to address particular policy problems. This should not be understood as a repudiation of presidential power. Indeed, what Obama did certainly circumvented Congress. The Obama administration should not be understood as a repudiation of presidential power. Instead, the efforts of the Obama administration are better understood as an attempt to perform the office differently.