Tuesday March 11, 2008

For Immediate Release Contact: Catherine Ribeiro
(202) 225-8020
March 11, 2008

TIERNEY TESTIMONY ON
PRESIDENTIAL SIGNING STATEMENTS

WASHINGTON, DC — Today, National Security and Foreign Affairs Subcommittee Chairman John F. Tierney (D-MA) submitted the following testimony to the House Armed Services Committee, Subcommittee on Oversight and Investigations. The testimony addresses the impact of a Presidential signing statement on Chairman Tierney’s Wartime Contracting Commission, which was passed into law in January as part of the Defense Authorization Act of 2008, and would establish an independent Commission on Wartime Contracting to investigate Iraq and Afghanistan wartime contracts and the contracting processes.

A full copy of Chairman Tierney’s testimony is below:

Testimony of Representatives John F. Tierney and Thomas H. Allen before the House Armed Services Committee, Subcommittee on Oversight and Investigations

The Impact of the Presidential Signing Statement on the Wartime Contracting Commission Contained in the Fiscal Year 2008 National Defense Authorization Act

March 11, 2008

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We would like to thank Chairman Snyder, Ranking Member Akin, and the Members of the Subcommittee on Oversight and Investigations for accepting our written testimony for the record.

This testimony was prompted by the troubling and extremely vague constitutional assertions contained in the signing statement issued by the President in connection with the National Defense Authorization Act for Fiscal Year 2008 (the “Act”). Specifically, we noted with great dismay and confusion the President’s assertion that the establishment of a Wartime Contracting Commission (the “Commission”) “purport[s] to impose requirements that could inhibit the President’s ability to carry out his constitutional obligations.” We commend the Subcommittee in providing leadership in convening this important forum to explore the effect of the President’s assertions.

Frankly, we are baffled at the nature and foundation of the President’s objection to the establishment of a bipartisan Commission to weed out waste, fraud, and abuse by government contractors carrying out missions in the name of the U.S. people and at their expense. We find it deeply troubling that the President’s signing statement suggests that the Administration may hinder the work of this anti-corruption Commission. As a result, we offer this testimony in the hope that the Administration will clarify its intentions and clearly inform U.S. taxpayers that it will fully support the work of this vital Commission

For several years, we have worked hard with our House and Senate colleagues on both sides of the aisle to establish this critical and long-overdue Commission. It received broad bipartisan support in both chambers of Congress. Such widespread support should not be a surprise since the need to protect taxpayers from waste, fraud, and abuse is so clearly in the national interest. Even more important, contractor misconduct can endanger – and, at times, has endangered – our soldiers and their mission.

The Commission, composed of eight members, will be independent and bipartisan. Its experts will study the matters related to government contracting for reconstruction of Iraq and Afghanistan, logistical support of coalition forces operating in Iraq and Afghanistan, and performance of security functions in Iraq and Afghanistan. Thereafter, it will formulate recommendations and report to the President and Congress. With tens of billions spent to date on private contractors in our efforts in Iraq and Afghanistan, surely public policy will be served by a comprehensive review of contracting practices and performance.

We need look no further in our history than the efforts of the Truman Committee during World War II. Senator Truman and his colleagues established credibility and respect for their oversight efforts by prohibiting the committee from becoming a partisan political instrument. More important, however, were the fruits of their labor. They saved American taxpayers an estimated $15 billion dollars by identifying defective weapons systems and other war supplies, and saved countless lives by ensuring that our soldiers were properly equipped when we called on them for battle.

Fast-forward to this new millennium. Standing Congressional committees have recently stepped up to the plate, and they have exposed a magnitude of waste in defense procurement that is truly staggering. We have watched in horror as our soldier-heroes were sent into battle without sufficient body and vehicle armor. And we watched widespread mismanagement of our reconstruction efforts in Iraq and Afghanistan. The total costs of our operations in those two countries now approach $1 trillion.

The need for a neutral, credible, and comprehensive Wartime Contracting Commission to point the way forward is clear. The President’s purported objections, however, are not.

The vague objections to § 841, among other provisions, are lumped together into a hodgepodge of purported constitutional objections. The President merely notes that:

…[S]ection 841…purport[s] 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.<

Since no attempt was made to match this laundry list of objections to purported encroachments on executive authority to the specific provisions of the Act lumped in with Section 841, we will address each argument in turn.

As the President acknowledges in his signing statement, he has an unwavering constitutional obligation to “take Care that the Laws be faithfully executed.” The word “Laws” under the Take Care Clause emphatically includes legislation that has been duly enacted, including, of course, provisions passed by both the House of Representatives and Senate and signed by the President. Section 841 of the Defense Authorization Act has obtained such constitutional imprimatur as a “law” of the United States. Therefore, by definition, the President cannot invoke the Take Care clause as a valid objection to the establishment of the Wartime Contracting Commission.

Therefore, any objection on the President’s part may only be grounded in the Constitution itself. And, again, without benefit of a meaningful – much less satisfying – explanation of the objections expressed in his signing statement, we are at a loss as to a colorable constitutional objection to the establishment, composition, or duties of the Wartime Contracting Commission.

This is truly the worst of all worlds. The American people are left with justifiable concerns that the President may not do his part to establish and support this Commission, and, at the same time, are left devoid of any intelligible reasoning or rationale.

Section 842 cannot offend the Appointments Clause. In Buckley v. Valeo, the Supreme Court offered an exhaustive analysis of the powers a commission comprised of members appointed by both the executive and legislative branches may constitutionally exercise. Buckley states:

Insofar as the powers confided in the [Federal Election] Commission are essentially of an investigative and informative nature, falling in the same general category as those powers which Congress might delegate to one of its own committees, there can be no question that the Commission as presently constituted may exercise them.

Here, Congress granted the Wartime Contracting Commission only powers of an investigative and informative nature, and conferred no enforcement powers that would run afoul of the Appointments clause. Rather, the Commission is merely charged with reporting, recommendation, and referral duties.

Furthermore, we fail to see how the Commission, with its limited duties, could interfere with the President’s ability to “supervise the executive branch.” Section 841 does not grant the Commission any powers to hire, fire, or otherwise alter terms of employment for any executive branch employee or officer. It does not invade the province of prosecutorial discretion; rather, it merely grants the Commission with discretion to refer “any violation or potential violation of law” to the Attorney General. The provision requiring the Attorney General to report on the disposition of such referrals is a commonplace, and non-invasive, legislative provision.

Nor is there anything in the Commission’s composition or duties that could infringe on the President’s powers as Commander-in-Chief. The Commission is not inserted into the chain of command. It moves no armies. It cannot even, without parallel and specific Congressional action, subpoena documents from the executive branch.

The same is true for the assertion that the Commission might hinder the President’s ability “to protect national security.” The suggestions that responsible oversight would hinder United States efforts in wartime are particularly disturbing, especially when there is nothing in this Commission that could be construed to interfere with combat efforts. If history is any guide, the Truman Committee was a huge support for the war effort. By exposing waste, fraud, and abuse during World War II, taxpayer money could be spent more efficiently and the war effort would be strengthened, not weakened.

Credible and constructive oversight of wartime contracting is not only a matter of fiscal responsibility, but a patriotic duty to ensure that government contractors do not compromise our values, waste U.S. taxpayers’ money, or endanger our brave men and women in uniform.

It is our sincere hope that the President’s signing statement is merely boilerplate rather than an indication that the Administration will not fully support the establishment and work of the Wartime Contracting Commission. On behalf of U.S. taxpayers, we will closely monitor the Administration’s actions in the coming days and weeks, and, with like-minded colleagues, will use all Congressional rights and powers at our disposal to both ensure that the American people receive a full accounting of the President’s intentions and, at the end of the day, ensure that this Commission is quickly constituted and able to fully conduct its important work.

Again, we would like to thank the Chairman, Ranking Member, and Members of the Subcommittee for the courtesy of accepting this written testimony into the record.

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