Candidates, Signing Statements, Whistleblowers, and Permanent Bases

President Bush’s propensity for attaching signing statements to enacted legislation is well documented, and his signing statement slap at Congress’s determination to restrict his adventures in the Middle East much observed; but, his signing statement attached to S.274, the Federal Employee Protection Act of 2007, may have ramifications at least equal to the others.

Does the Bush Administration believe its track record in regard to whistle-blowers is so pristine that there is no reason for whistle-blower protection? The Project on Government Oversight reports that the Administration has now put the kibosh on Whistleblower Protections. On January 28, 2007 the President attached this caveat to S. 274: “Provisions of the Act, including sections 841, 846, 1079, and 1222, purport to impose requirements that could inhibit the President's 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 to execute his authority as Commander in Chief. The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President.” [WHPR] Note that the President offers only to construe the provisions in a “manner consistent with the constitutional authority of the President,” not in a manner consistent with the Constitution of the United States, or statutory requirements made under the guidance thereof. Rarely has any statement of unilateral authoritarianism been made so blatantly, unless of course one reads through the previous Bush signing statements.

The Ethics Resource Center recently released its study of governance under the Bush-Cheney Administration. “According to the report, "Just over half of federal employees observed misconduct in the past year. In the past twelve months, 52 percent of federal government employees observed at least one type of misconduct. Of this 52 percent of employees, 70 percent observed more than one type of misconduct."

In addition, "Many of those who reported the misconduct they observed were retaliated against. This is troubling on two fronts: reporters are punished for their responsible, courageous decision at the same time that future reporting is discouraged.

• More than one out of ten (11 percent) of federal government employees who reported their observations of misconduct have experienced retaliation as a result of their reports.
• Almost a quarter (24 percent) of federal government employees who observed misconduct but chose not to report it feared retaliation from management.
• Also, 16 percent of non-reporters within the federal government feared retaliation from their peers." [POGO]

Beyond the obvious constitutional issues in regard to the President’s assertion that he is above the law and beyond the Constitution, this signing statement only serves to exacerbate problems related to every day governance and oversight. We’ve glimpsed some of these issues already.

The politicized mess that has become the General Services Administration under the mis-direction of Bush appointee Lurita Doan, and the charges and countercharges leveled by GSA Inspectors General, rests in part on the activities of whistle-blowers willing to come forward with information on the agency’s operations.

When the House Oversight and Government Reform Committee took on Blackwater, Inc. concerning the corporation’s contracts with the U.S. Department of State the department’s Inspector General, Howard Krongard meddled to such an extent that two whistleblowers resigned in response. Two of Krongard’s employees, special agents Ron Miltana and Brian Rubendall ignored Krongard’s threats to fire them and spoke before the committee anyway. [MJ] During a House Oversight hearing last February, Chairman Waxman observed: “It’s remarkable that the world of contractors and subcontractors is so murky that we can’t even get to the bottom of this, let alone calculate how many millions of dollars taxpayers lose in each step of the subcontracting process.” [HOversight pdf]

Rory J. Mayberry, an EMT once hired by First Kuwait to work on the American embassy project in Iraq provided compelling and disturbing testimony about the conditions to which workers were subjected to the House Oversight and Government Reform Committee on July 26, 2007. (pdf)

Richard Foster, an analyst with the Department of Health and Human Services and the chief actuary for Medicare, was threatened with firing back in 2003 if he revealed that the prescription drug benefit legislation supported by the Bush Administration was going to be far more expensive that members of Congress had been told. Foster released the numbers in the face of administration retaliation.

David Lewis, a microbiologist at the EPA for 31 years demonstrated that pathogens could remain undetected in sludge, but because the Administration was pushing the use of sludge for agricultural purposes he was harassed and eventually fired in May, 2003.

Douglas Parker, an employee of the U.S. Forest Service lost his job in late 2005, after nearly 40 years of public service, because he filed a whistle-blower complaint about a systemic problem caused by the use of pesticides across several forests in New Mexico and Arizona.

Associate Director David J. Graham of the FDA’s Office of Drug Safety was the target of a smear campaign by managers of the agency in November 2004 after he testified at a Senate hearing that six prescription drugs posed serious safety risks not being addressed by the Food and Drug Administration.

Could it be that the President believes that his capacity to “supervise the executive branch” should mean that there will be more individuals added to the already long list of federal employees who have been harassed, threatened, intimidated, re-assigned, and retaliated against because they sincerely believed that the nation’s business (and its revenues) were being wasted? How many more episodes of Bill Moyer’s Journal must be dedicated to uncovering waste, fraud, and abuse before Congressman Waxman’s committee can reduce its number of investigations?

There is a second question arising from the signing statements: Are current candidates for the Presidency of the United States willing to take a principled stand against the misuse or abuse of these signing statements?

Steve Benen posting on The Carpetbagger Report states that the President has issued 151 signing statements challenging 1149 provision of enacted legislation. Benen observes that both Senator Hillary Clinton and Senator Barack Obama have made their positions obvious, decrying these “extra-constitutional” statements.

The Boston Globe provided answers given by candidates to its survey on presidential powers, including the question: “Under what circumstances, if any, would you sign a bill into law but also issue a signing statement reserving a constitutional right to bypass the law?” Senator Hillary Clinton responded: “I have opposed the Bush Administration's abuse of signing statements, and as President, I would not use signing statements to disagree on policy grounds with legislation passed by Congress or as an end run around the veto. I would only use signing statements in very rare instances to note and clarify confusing or contradictory provisions, including provisions that contradict the Constitution. My approach would be to work with Congress to eliminate or correct unconstitutional provisions before legislation is sent to my desk.” [BG]

Senator Barack Obama was also clear on the issue: “Signing statements have been used by presidents of both parties, dating back to Andrew Jackson. While it is legitimate for a president to issue a signing statement to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law, it is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability. I will not use signing statements to nullify or undermine congressional instructions as enacted into law. The problem with this administration is that it has attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation. The fact that President Bush has issued signing statements to challenge over 1100 laws – more than any president in history – is a clear abuse of this prerogative. No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that.” [BG]

Senator John McCain “used” to oppose this Bushian tactic. [TP] The Boston Globe reported on November 20, 2007 that Senator McCain told the Nashua, New Hampshire, Rotary Club, “I would never issue a signing statement…adding that he would sign it or veto any legislation that reached his desk as president.” His response to the Boston Globe survey was straight to the point, “As President, I won’t have signing statements. I will either sign or veto any legislation that comes across my desk.” [BG] However, what we hear now from Senator McCain in the wake of the signing statement in which President Bush reserved to himself the power to use funds to build permanent military bases in Iraq attached to a bill that specifically forbid such use of tax dollars, amounts to “The Sound of Silence.”

Those who like signing statements may take comfort in Willard “Mitt” Romney’s response to the Boston Globe survey: “I share the view of many past presidents that signing statements are an important presidential practice.” [BG] Mike Huckabee refused to answer the question, as did Ron Paul, Fred Thompson, and Rudy Giuliani. [BG]

As a matter of importance both for the administration and governance of the country, and to avoid the presidential arrogance so alarmingly on display in regard to the Military Appropriations bill provisions, the candidates need to affirm, and in the case of the Republicans explain their views on presidential signing statements.