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In Praise of the Signing Statement

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Monday, January 2, 2012 at 5:22 PM

Last year, at this time, I wrote a hot-headed little post objecting the signing statement President Obama issued in connection with last year’s defense authorization act. This year’s signing statement, which Steve posted the other day, seems to me a far more creditable effort. For starters, it is not simply a set a policy whines about what Congress has done. Rather, it announces with respect to several sections of the bill an intent to adopt interpretations that preserve operational flexibility with respect to prosecution of terrorist suspects. More important, it follows a sustained–if belated–engagement on the part of the administration on the terms of the legislation Congress was contemplating, one that included an actual veto threat and that significantly shaped the direction the legislation took. The result of this more assertive stance is legislation that, while troubling in some respects, has some positive elements too and is dramatically less bad than earlier versions of it were. On one of the specific matters that gave rise to last year’s signing statement–the foreign transfer restrictions–this year’s NDAA actually contains a modest improvement over last year’s legislation. So while the administration is taking a beating from its base for some of the bill’s provisions, I actually think it has done okay. Through the legislative process, it has injected a great more discretion and flexibility into the bill. And in the signing statement, the President has made clear that he means to adopt plausible interpretations that will make use of that latitude. Maybe it’s just that I’m feeling mellow following a week in Maui, but I’m not inclined to criticize the administration over its handling of this one.