LIBERTY AND SECURITY: RECOMMENDATIONS FOR THE NEXT ADMINISTRATION AND CONGRESS A coalition of more than twenty organizations and over seventy-five individuals collaborated to create “Liberty and Security: Recommendations for the Next Administration and Congress.” The Constitution Project coordinated the production of the report, which was released in November 2008. “Liberty and Security” indexes policy proposals across 20 different issue areas, including privacy, secrecy and surveillance; detention, interrogation, and trials of so-called “enemy combatants”; and discrimination in immigration and charities policy. It includes recommendations for congressional and executive action, and provides in-depth background information to support action by policy makers. It also includes lists of issue- based resources and experts in the community. The report includes the following chapters: CHAPTER 1: Eliminate Unnecessary Barriers To Legitimate Charitable Work CHAPTER 2: Closing Guantánamo CHAPTER 3: End Illegal Detention, Torture, and Rendition CHAPTER 4: Prosecute Terrorist Suspects in Accordance with the Law CHAPTER 5: Failing to Protect Refugees and Asylum Seekers: Overly Broad Definition of Material support for Terrorism. CHAPTER 6: Ending Immigration Enforcement Based on National Origin, Ethnicity, and Religion CHAPTER 7: Misuse of Immigration Detention Laws in Counterterrorism Efforts CHAPTER 8: Revising Attorney General Guidelines on FBI Investigations CHAPTER 9: Updating the Law Governing the Privacy of Electronic Communications CHAPTER 10: Fusion Centers and the Expansion of Domestic Intelligence CHAPTER 11: Promoting Government Transparency CHAPTER 12: National Security Letters and Section 215 of the USA PATRIOT Act CHAPTER 13: Reform of the National Security Surveillance Laws and Procedures CHAPTER 14: Preventing Over-Classification and Retroactive Classification and Promoting Declassification of Government Documents CHAPTER 15: Reforming the State Secrets Privilege CHAPTER 16: Reforming Watch Lists CHAPTER 17: Assertion of Executive Authority in National Security Matters CHAPTER 18: Executive Privilege and Congressional Oversight CHAPTER 19: Signing Statements CHAPTER 20: War Powers Authority The full report is available online at http://2009transition.org/liberty-security/, at www.constitutionproject.org, and on the websites of many members of the coalition. For policy questions, please contact the individuals or organizations identified in the catalogue as allies. Please direct general questions to Daniel Schuman, Director of Communications and Counsel, the Constitution Project, at 202-580-6922. CHAPTER NINETEEN SIGNING STATEMENTS I. The Problem Historically, presidents have used signing statements to provide reasons for signing a bill, to explain their interpretation of legislative language, or even to express objections to portions of the legislation. More recently, however, the President has increasingly used signing statements to repudiate a wide range of laws -- including those designed to protect basic rights and ensure accountability -- and to indicate that while not vetoing the bills, he will decline to enforce them as written. The President has objected to the constitutionality of hundreds of pieces of legislation based on assertions of unilateral power, such as the “power to supervise the unitary executive,” the “exclusive power over foreign affairs,” and the “authority to determine and impose national security classifications and withhold information.” By signing a particular bill into law, but then declaring in a signing statement that he will not give effect to it, the President asserts authority both more robust than the veto -- because it denies Congress an opportunity to override the decision -- and less robust -- because the bill does become law, on the books for future Presidents to enforce and for courts to interpret. Insofar as the President declares an intent not to enforce a portion of the law, and so long as he does not enforce it, he arrogates authority akin to the line item veto that the Supreme Court declared unconstitutional. Recent signing statements also have been opaque as to the statutory provisions being repudiated and the legal justifications for the repudiation, thwarting Congress’s ability to exercise its legislative and oversight responsibilities and the public’s ability to debate the executive branch’s assertion of power. In June 2007, the Government Accountability Office found that, as of that date, the President’s signing statements included objections to 160 separate provisions in 11 appropriations bills. Reviewing a sample of 19 of those provisions, GAO concluded that the executive branch failed to implement nearly 30% of them. According to a study by Professor Christopher S. Kelley of Miami University, as of October 2008, President Bush had issued 171 signing statements challenging 1,168 provisions of law. See http://www.users.muohio.edu/kelleycs/ The President has also used signing statements to object to laws that require reporting of executive non-compliance with laws, further concealing from Congress and the public the President’s decision to disregard laws. The misuse of signing statements is particularly troublesome when, as happened recently, the President uses them to declare his own constitutional powers in a manner that avoids judicial review of his position. Contriving to seize the last word on the enforceability of congressional enactments threatens the constitutional system of checks and balances. 305 of 320 II. Proposed Solutions A. Guiding Principles Signing statements must respect the rule of law and the constitutional separation of powers. Such statements are an appropriate vehicle for stating the President’s reasons for signing a bill or for explaining his understanding of ambiguous legislative language. If, however, the President believes that a bill is unconstitutional, the best course in almost all cases is to veto it. Short of a veto, if the President determines that a provision would violate the Constitution and believes that the courts would agree, he should seek to work with Congress to correct the provision. Transparency of the President’s reasoning and actions is key. If the President and Congress cannot agree, they should create an opportunity for judicial resolution of the issue. B. Proposed Measures 1. Proposal 1. The President should commit that, when bills are under consideration by Congress, the President will promptly identify any concerns that certain provisions may be unconstitutional and communicate these concerns to Congress so that it can correct the provisions. 2. Proposal 2. If the President believes a previously enacted law is unconstitutional, he should commit to provide Congress a report setting forth in full the legal basis for any decision to disregard or decline to enforce all or part of a law, or to interpret a law in a manner inconsistent with the clear intent of Congress. 3. Proposal 3. Congress should enact legislation requiring the President to notify Congress if he intends to disregard or decline to enforce all or part of a law, and to provide a report setting forth in full the reasons and legal basis for any such decision. 4. Proposal 4. Congress should enact legislation to enable the President, Congress, or other entities to seek judicial review of any signing statement that states the intention, to disregard or decline to enforce all or part of a law he has signed, or to interpret a law in a manner inconsistent with the clear intent of Congress. Such legislation would seek to confer on Congress as an institution or its agents (either its own Members or interested private parties as in qui tam actions) standing in such actions. III. Allies* American Association of Law Libraries Mary Alice Baish, Acting Washington Affairs Representative baish(at)law.georgetown.edu 202-662-9200 American Library Association 306 of 320 Lynne E. Bradley, Director lbradley(at)alawash.org 202-682-8410 Association of Research Libraries Prudence Adler prue(at)arl.org 202-296-2296 (ext. 104) Citizens for Responsibility and Ethics in Washington Anne Weismann, Chief Counsel aweismann(at)citizensforethics.org 202-408-5565 Common Cause Sarah Dufendach, Vice President for Legislative Affairs www.commoncause.org 202-736-5709 The Constitution Project Sharon Bradford Franklin sfranklin(at)constitutionproject.org 202-580-6920 Defending Dissent Foundation Sue Udry, Director Sue.udry(at)defendingdissent.org 202-549-4225 www.defendingdissent.org Essential Information John Richard or Robert Weissman 202-387-8034 Federation of American Scientists Steve Aftergood saftergood(at)fas.org 202-546-3300 Government Accountability Project Jesselyn Radack, Homeland Security Director JesselynR(at)whistleblower.org 202-408-0034 (ext. 107) Liberty Coalition Michael D. Ostrolenk, Co-Founder/National Director 307 of 320 www.libertycoalition.net mostrolenk(at)libertycoalition.net 301-717-0599 OpenTheGovernment.org Patrice McDermott pmcdermott(at)openthegovernment.org 202-332-6736 Stanford Law School - Mills International Human Rights Clinic Barbara J. Olshansky, Leah Kaplan Visiting Professor and Clinic Director Kathleen Kelly, Clinical Teaching Fellow bj.olshansky(at)gmail.com 650-736-2312 U.S. Bill of Rights Foundation Dane vonBreichenruchardt, President usbor(at)aol.com 202-546-7079 * These groups and individuals support the general principles expressed and the general policy thrust and judgments in the policy proposals described above. The allies listed do not necessarily