Bush Signing Statement on Sudan Divestment Law Still Controversial

By Dan Robinson

Washington

09 February 2008

Some U.S. Lawmakers, and experts testifying to a congressional panel say President Bush may have undermined a law he signed last year designed to encourage divestment from Sudan. VOA's Dan Robinson has a report from Capitol Hill, where a hearing examined the potential impact of the president's action on worldwide efforts for divestment over the Darfur issue.

When he signed the Sudan Accountability and Divestment Act, which was aimed at making it easier for U.S. state and local governments and pension funds to end investment ties with companies doing business in Sudan, the president took a step he has employed frequently during his time in the White House.

While saying he shared the concerns of Congress about violence against people in Sudan's Darfur region, President Bush also expressed reservations about the measure in what is called a signing statement.

In short, he reserved the right to overrule the law if divestment decisions taken under the legal framework it provides conflict with what he views as the exclusive authority of the executive branch to conduct foreign policy.

For lawmakers, Democrats and Republicans, and groups that worked with Congress to get the law passed, that undermines the very purpose of the legislation.

A hearing on Capitol Hill brought together legal experts, a state representative, and the director of the Save Darfur Coalition to discuss the subject.

Barney Frank, a Democrat, who chairs the House Financial Services Committee, challenges the constitutionality of the president's action. "The president was entitled to oppose the bill, the president was entitled to have the State Department lobby against it. He was even entitled to veto it. What he is not entitled to do is, having failed in those efforts, and having declined to veto it, to then unilaterally undermine it by a signing statement which will vitiate its intended effect," he said.

Although the Bush administration sent letters to Congress explaining its reasoning, no White House, State Department or Justice Department officials showed up at the hearing.

The president's signing statement said the divestment law risks being interpreted as insulating from Federal oversight state and local divestment actions that could interfere with implementation of national foreign policy.

Patricia Wald, former Chief Judge of the U.S. Court of Appeals for the District of Columbia, says while many presidents have used signing statements, their use increased sharply beginning with Republican President Ronald Reagan.

Wald says explanations for the president's signing statement lack specificity, and asserts the action could weaken the law. "As a practical matter, signing statements do have real work effects. They may have, as some people have alluded to, a deterrent effect, because states don't want to have a lawsuit even if they would win it eventually, or we all know executive officials in the administration have many areas in which they interact with the states, in which their benignness, or their antipathy could be very important in other areas there are all sorts of ways of leveraging power," she said.

Sharper criticism comes from Paul Schwartz, with the law firm Cooley Godward Kronish. Congress, he says, has a significant role in foreign policy, and he agrees that President Bush potentially undermined the law. "In my view, the administration's argument is without any legal merit. Nevertheless, a risk exists that the signing statement could create a mis-impression among states and local governments that are considering targeting Sudan investment, that [the Sudan law] does not effectively protect their actions," he said.

Frank Caprio, of the Office of the Rhode Island General Treasurer, says divestment has become an effective tool in dealing with regimes such as the one in Khartoum accused of supporting genocide.

He asserts that states have the right and capacity to invest based on social, humanitarian and financial values consistent with investment standards, and says this about the signing statement. "The president's murky signing statement reinstates the fear of legal action that this act was intended to remove. It is counter-intuitive that an act which intends to end ambiguity on the issue of Sudan divestment would be accompanied by a presidential statement that opens the very door to the ambiguity by placing the act at the president's potential discretion," he said.

Ambiguity is just what Jerry Fowler, Executive Director of the Save Darfur Coalition, sees having been injected into the picture. "In my mind the real negative impact of the signing statement so far has been the ambiguous message it sends to Khartoum, and to the business interests that are contributing to Khartoum's ability to carry out genocide in Darfur," he said.

Congressman Frank raises the possibility of congressional resolutions that would formally, but only symbolically, disapprove of the president's signing statement, a step to place lawmakers on the record on the issue.

Republican Spencer Bachus, a supporter of the Sudan legislation, favors more discussions with the administration on the matter, but has this sharp criticism of the administration. "Communications between this White house and the Congress have been problematic on many issues. Obviously this is an additional one. I am disappointed by the State Department and what appears on its face to be arrogant and also an ignorance of the duties and obligations as well as the powers vested in the legislative branch by the Constitution," he said.

As the controversy continues, Fowler of the Save Darfur Coalition, says everyone must keep the most important thing in sight. "Ultimately we can't lose sight of the fact that it is human lives that have been destroyed, and human lives that remain at risk," he said.

Sudan divestment efforts have been initiated in some 20 U.S. States, as part of the worldwide movement to exert more pressure on the Sudanese government, which has supported Arab militia attacks against civilians in Darfur, a charge Khartoum has always denied.