ANTHONY BROOKS, host:
This is DAY TO DAY. I'm Anthony Brooks.
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I'm Madeleine Brand.
Coming up: That junkie old computer you tossed out might just end up in India, polluting the environment.
BROOKS: But first to the topic of presidential signing statements, which are sort of like presidential P.S.'s attached to laws passed by Congress. A report from the Government Accountability Office this week criticized the way President Bush has used signing statements, saying he is ignoring parts of some bills approved by Congress.
Democrats who asked the GAO to conduct the study say the report is further evidence that the Bush administration is ignoring the will of Congress and overstepping its constitutional authority. That, of course, is a matter of debate. But it's clear that the study will only intensify a growing tug-of-war between Congress and the Bush White House.
Joining us now is Dahlia Lithwick of the online magazine, Slate. She's a frequent contributor to DAY TO DAY and has been covering the signing statement issue since it first came up in January.
Thanks for joining us, Dahlia.
Ms. DAHLIA LITHWICK (Reporter, Slate): Pleasure to be here.
BROOKS: And take us back, if you would, to last January, just to remind us when this first came to light in a big way during negotiations between the White House and Congress on renewal of the Patriot Act, right? Which included language that ban the use of torture.
Ms. LITHWICK: That was John McCain pushing very, very hard for an anti-torture bill. This would have been December of 2005. The White House made a big show of opposing it, saying, you know, that would encroach on presidential prerogatives. There was a big reconciliation. The president wasn't going to veto it. Everybody hugged. It looked like it was going to be okay, and then unbeknownst to everybody, the signing ceremony for that anti-torture bill happened December 30th at 8:00 p.m. at the White House.
Nobody noticed that the president had sort of slipped in language - like you say, a P.S. to the bill - that said, essentially the White House was only going to follow this anti-torture law, quote, "in a manner consistent with his constitutional authority to supervise the unitary executive and the constitutional limitations on judicial power."
In other words, I'm signing it, but I'm going to have a sort of extra veto on how I'm going to implement it. And this all came to light because Charlie Savage at the Boston Globe broke the story that the president had, in fact, been signing lots and lots of these sort of fingers-crossed-behind-its-back statements saying, yes, I'm going to sign the bill. No, I'm not going to veto it, but I'm going to sort of enforce it the way I want to, not the way the bill is written.
BROOKS: So let's move on to this study from the Government Accountability Office. What did they look at, and what did they find?
Ms. LITHWICK: Well, they were asked to study a small sample of the bills that actually contained the signing statements. There's now been over 1,100 provisions of bills called into question by President Bush. And so they wanted to know essentially if the statements were having an effect on how the bills were implemented.
Of the ones that they studied, agencies effectively disobeyed the language of the law six times. And 10 times, the signing statement did not have an effect on how the agency implemented it. But six times the agency said, well, we're going to go along with what the signing statement said.
Now I want to be clear that the GAO said they did not sign the causal link -that is to say the agencies weren't saying, well, the president told us not obey it, so we're not going to obey it. The GAO said that was beyond the scope of what they were investigating. But certainly it is very clear that very frequently agencies said we're going to abide by what the president says, not what the bill expressly says.
BROOKS: Yeah. And it's important to point out that these signing statements do not have the force of law. Is that correct? But it sounds like the agencies are acting as if they do.
Ms. LITHWICK: Well, that's exactly the question I think that at the time the signing statement story broke, there was a real sort of sense that, oh, they don't have the force of law. The courts don't really pay much attention to them. But I think that your point is exactly apt, which is it doesn't matter whether they have the force of law.
What matters is, is this telegraphing to the agency sort of wink, wink, do what I say not what the bill says? And it seems very clear from the study that that may be happening.
BROOKS: Now signing statements, of course, had been used by presidents since the days of President Monroe. It's also been pointed out that President Clinton was a very prolific issuer of signing statements. So is this president breaking with the past in any way, in your view?
Ms. LITHWICK: I think that it's clear that he is. Signing statements used to sort of be what I've characterized as executive branch throat clearing. It was sort of thank you to the Elks, really appreciate you pushing this bill. Not a lot of stuff of substance was said.
That really changed in the Reagan administration. Reagan was the first president who started using them to sort of stake out the boundaries of the executive power, to sort of push back after Watergate. The difference under Bush is not just the extreme amount of signing statements - that is to say, he's used more of them than all the other presidents put together in the course of history - but that these sort of boundaries of executive power are being pushed quite far. I think it's kind of crossed the line from merely symbolic language into language that actually seems to offer instruction on how to go about implementing the law.
BROOKS: Dahlia Lithwick, thanks for your insight on this story.
Ms. LITHWICK: Always a pleasure.
BROOKS: Dahlia Lithwick from the online magazine, Slate.
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