[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]



 
                      NEGATIVE IMPLICATIONS OF THE
                     PRESIDENT'S SIGNING STATEMENT
                      ON THE SUDAN ACCOUNTABILITY
                           AND DIVESTMENT ACT

=======================================================================

                                HEARING

                               BEFORE THE

                    COMMITTEE ON FINANCIAL SERVICES

                     U.S. HOUSE OF REPRESENTATIVES
                      ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                            FEBRUARY 8, 2008

                               __________

       Printed for the use of the Committee on Financial Services

                           Serial No. 110-87


                    U.S. GOVERNMENT PRINTING OFFICE
41-178                      WASHINGTON : 2008
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092104 Mail: Stop IDCC, Washington, DC 20402ï¿½090001

                 HOUSE COMMITTEE ON FINANCIAL SERVICES

                 BARNEY FRANK, Massachusetts, Chairman

PAUL E. KANJORSKI, Pennsylvania      SPENCER BACHUS, Alabama
MAXINE WATERS, California            DEBORAH PRYCE, Ohio
CAROLYN B. MALONEY, New York         MICHAEL N. CASTLE, Delaware
LUIS V. GUTIERREZ, Illinois          PETER T. KING, New York
NYDIA M. VELAZQUEZ, New York         EDWARD R. ROYCE, California
MELVIN L. WATT, North Carolina       FRANK D. LUCAS, Oklahoma
GARY L. ACKERMAN, New York           RON PAUL, Texas
BRAD SHERMAN, California             STEVEN C. LaTOURETTE, Ohio
GREGORY W. MEEKS, New York           DONALD A. MANZULLO, Illinois
DENNIS MOORE, Kansas                 WALTER B. JONES, Jr., North 
MICHAEL E. CAPUANO, Massachusetts        Carolina
RUBEN HINOJOSA, Texas                JUDY BIGGERT, Illinois
WM. LACY CLAY, Missouri              CHRISTOPHER SHAYS, Connecticut
CAROLYN McCARTHY, New York           GARY G. MILLER, California
JOE BACA, California                 SHELLEY MOORE CAPITO, West 
STEPHEN F. LYNCH, Massachusetts          Virginia
BRAD MILLER, North Carolina          TOM FEENEY, Florida
DAVID SCOTT, Georgia                 JEB HENSARLING, Texas
AL GREEN, Texas                      SCOTT GARRETT, New Jersey
EMANUEL CLEAVER, Missouri            GINNY BROWN-WAITE, Florida
MELISSA L. BEAN, Illinois            J. GRESHAM BARRETT, South Carolina
GWEN MOORE, Wisconsin,               JIM GERLACH, Pennsylvania
LINCOLN DAVIS, Tennessee             STEVAN PEARCE, New Mexico
PAUL W. HODES, New Hampshire         RANDY NEUGEBAUER, Texas
KEITH ELLISON, Minnesota             TOM PRICE, Georgia
RON KLEIN, Florida                   GEOFF DAVIS, Kentucky
TIM MAHONEY, Florida                 PATRICK T. McHENRY, North Carolina
CHARLES WILSON, Ohio                 JOHN CAMPBELL, California
ED PERLMUTTER, Colorado              ADAM PUTNAM, Florida
CHRISTOPHER S. MURPHY, Connecticut   MICHELE BACHMANN, Minnesota
JOE DONNELLY, Indiana                PETER J. ROSKAM, Illinois
ROBERT WEXLER, Florida               KENNY MARCHANT, Texas
JIM MARSHALL, Georgia                THADDEUS G. McCOTTER, Michigan
DAN BOREN, Oklahoma                  KEVIN McCARTHY, California
                                     DEAN HELLER, Nevada

        Jeanne M. Roslanowick, Staff Director and Chief Counsel


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on:
    February 8, 2008.............................................     1
Appendix:
    February 8, 2008.............................................    35

                               WITNESSES
                        Friday, February 8, 2008

Caprio, Hon. Frank T., General Treasurer, Office of the Rhode 
  Island General Treasurer.......................................    23
Fowler, Jerry, Executive Director, Save Darfur Coalition.........    13
Schwartz, Paul H., Esq., Partner, Cooley Godward Kronish, LLP....    21
Wald, Hon. Patricia M., former Judge and Chief Judge, United 
  States Court of Appeals for the District of Columbia Circuit...    15

                                APPENDIX

Prepared statements:
    Caprio, Hon. Frank T.........................................    36
    Fowler, Jerry................................................    39
    Schwartz, Paul H., Esq.......................................    43
    Wald, Hon. Patricia M........................................    53

              Additional Material Submitted for the Record

Frank, Hon. Barney:
    Press release on the President's Signing of the Sudan 
      Divestment Legislation, dated January 7, 2008..............    59
    Letter from the U.S. Department of State to Senator Mitch 
      McConnell, dated October 22, 2007..........................    60
    Letter from the U.S. Department of State to Senator Harry 
      Reid, dated October 22, 2007...............................    63
    Letter from The White House to Chairman Barney Frank, dated 
      February 4, 2008...........................................    66
    Letter from the U.S. Department of Justice to Vice President 
      Richard B. Cheney, dated October 26, 2007..................    67
    Letter from the Department of the Treasury to Senator Harry 
      Reid, dated July 30, 2007..................................    73
Bachus, Hon. Spencer:
    Ward Brehm's National Prayer Breakfast Remarks, dated 
      February 8, 2008...........................................    75


                      NEGATIVE IMPLICATIONS OF THE
                     PRESIDENT'S SIGNING STATEMENT
                      ON THE SUDAN ACCOUNTABILITY
                           AND DIVESTMENT ACT

                              ----------                              


                        Friday, February 8, 2008

             U.S. House of Representatives,
                   Committee on Financial Services,
                                                   Washington, D.C.
    The committee met, pursuant to notice, at 10:04 a.m., in 
room 2128, Rayburn House Office Building, Hon. Barney Frank 
[chairman of the committee] presiding.
    Members present: Representatives Frank, Watt, Capuano, 
Green, Cleaver; and Bachus.
    Also present: Representative Lee.
    The Chairman. This hearing of the Committee on Financial 
Services will come to order.
    This is a hearing on the implementation of legislation 
passed, I believe unanimously, by both the House and the 
Senate. It was passed unanimously over the objections of the 
Bush Administration. And there are, of course, in the 
Constitution, ways for the President to fight legislation to 
which he is opposed. He is free, obviously, to have members of 
his Administration argue against it, and he in fact ultimately 
has a veto, which could require a two-thirds vote of both 
Houses.
    The legislation, of course, is legislation intended to 
enhance the ability of people in the United States to take 
action expressing their horror at the genocide that is taking 
place in the Darfur region of Sudan. We think it is important 
for the American government to oppose that in various ways.
    We believe it is also important to remove any obstacles 
from others in this country--States, economic entities, and 
individuals--from joining in. And indeed, there is an argument 
in favor of that, which I believe is very powerful.
    It is often the case that governments who have engaged in 
atrocious behavior, when the United States government opposes 
them--we don't do that as consistently as I would like, but in 
those cases where we do, there is a tendency for those 
governments to say, oh, well, that is just the Administration. 
It is particularly the case now, and it has become easy to 
argue in some places to people who aren't terribly 
sophisticated about America's internal politics, that this 
Administration does not speak for the majority of the country 
in a number of areas.
    In the case of Sudan, it is clear that the Administration's 
expressed opposition to the genocide represents an overwhelming 
intense feeling from the American people. And what we do in 
this legislation, which was originally conceived by our 
colleague, the gentlewoman from California who sits with us 
today, we are giving people a chance to repudiate that 
argument.
    Now, one of the things the Administration doesn't like is 
the notion that State legislatures might take positions, 
elected State officials might take positions expressing their 
abhorrence of genocide and not just expressing their abhorrence 
but putting their money where their mouths are. I do not 
understand why the Administration is opposed to that.
    Let's be clear: This is not a bill that generally allows 
that to happen, although I would be in favor of such 
legislation. It is a very narrowly crafted one that deals only 
with the issues of Darfur in the Sudan. And why this 
Administration would oppose our efforts to allow a broad range 
of Americans to join the Administration in its stated policy of 
opposing this is puzzling to me.
    Apparently we have an Administration so wedded to the 
notion of ever-increasing executive power that it is willing to 
put its interest in enhanced executive power and diminished 
ability for others in this country to speak out ahead of its 
commitment to ending the genocide in Darfur because what they 
tell us is that they would rather not have that help; they 
don't want States interfering in foreign policy.
    I would ask unanimous consent to put into the record now a 
letter dated October 22, 2007, from Jeffrey Bergner, the 
Assistant Secretary of Legislative Affairs for the Department 
of State. And it says here in part--it is a letter to Senator 
McConnell, and there is also one to Senator Reid opposing the 
bill.
    I want to make this point: the President tried to stop this 
bill from passing. He lobbied against it. He lost. Indeed, 
there were no votes on it because he did not have a lot of 
support among members of the House or the Senate. So it went 
through.
    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.
    And what they say is, ``First and foremost, we oppose the 
bill's affirmative authorization for State and local 
governments to divest from foreign companies doing business in 
named sectors in Sudan, Darfur. These provisions could be seen 
(however incorrectly), they say parenthetically, ``as 
effectively converting State actions which States are already 
taking into federally protected privileges, thereby 
undercutting the supremacy clause and the President's powers 
thereunder. We do not believe that either the interests of 
either the Article I or Article II branches of government are 
served by such legislation, especially in this situation where 
divestment actions are currently proceeding without Federal 
intervention. Such authorizations would set a dangerous 
precedent.''
    Well, first of all, the silliness of the constitutional 
argument is important. I am going to give myself extra time. I 
will give it to others as well. How does it violate the 
supremacy clause for the Congress of the United States to pass 
a law, signed by the President, albeit reluctantly, authorizing 
something?
    The supremacy clause says that if there is a conflict 
between the Federal Government and the States, the Federal 
Government wins. It is a position I will ask Judge Wald to 
correct me on if I have stated it incorrectly. The supremacy 
clause is fairly clear-cut. It says if the Federal Government 
makes a decision, it countermands a contrary State decision.
    How could anyone argue rationally that the Federal 
Government undermines the supremacy clause by a decision it 
takes authorizing actions? What is the undercutting of the 
supremacy clause? But again, understand, the right of the 
executive to do this preempts the interest in enhancing the 
effectiveness of action to express our distaste for what 
happens in Sudan.
    They also come to the defense of the fund managers. Now, 
what we had is State pension funds that are afraid of being 
sued. And the Administration says, well, they are proceeding 
anyway. Yes, but they are proceeding under the threat of a 
lawsuit.
    The purpose of this bill--you know, we thought we had 
people here who said, there is too much litigation in this 
society. Well, we took an action to try and prevent litigation, 
to allow these things to go forward. And the Administration 
objects to our doing that, and they say, well, some people are 
doing it anyway. Yes, but we believe more would if they weren't 
threatened with litigation. And certainly no harm is done, 
certainly not to the supremacy clause by the Congress passing a 
law.
    We then have the argument also on behalf of the fund 
managers. Now, we have had situations where people have wanted 
to have their mutual funds or the money that they have owned or 
invested--they want divestiture. And they have been told by 
some of the third party fund managers, oh, we can't do that. We 
owe you the duty of maximizing the income.
    Now, I must say that some of the fund managers who have 
claimed to be restrained here welcome the restraints. There is 
a device that we in Congress, in politics, sometimes use which 
I think is in play here. It is what I call the ``reverse 
Houdini.''
    Harry Houdini had an act in which he would have other 
people tie him up in very firm knots and then he would get out 
of the knots. That was his act. It is common in politics, and 
apparently in the fund management area, to do the reverse. You 
tie yourself up in knots. You impose restraints on yourself. 
And then, when you are asked to do something, you say, ``Oh, I 
can't do that. I am all tied up in knots.''
    Because we are here untying them, and the Administration 
objects to that. Here is what the Administration said: ``By 
affirming that fund managers may avoid their fiduciary 
responsibility in stated cases, these provisions weaken 
essential legal protections for investors, including workers, 
retirees, and their families, and set a dangerous precedent for 
extending such immunity.''
    I wish that this zeal on behalf of the right of people to 
bring lawsuits in defense of investors had been present when 
the Administration refused to allow the Securities and Exchange 
Commission to file a lawsuit in the Stoneridge case vindicating 
the rights of investors who wanted to bring a lawsuit. It is a 
rare example of this Administration worrying about the right of 
investors to sue not being infringed.
    Those are the merits. So here is where we are. I got a 
letter. We then, by the way, asked the Justice and State 
Departments to come and testify. The State Department wrote a 
letter expressing its opposition to the bill, so it seemed 
natural then to say, ``Well, will you come and talk about this 
signing statement?'' They refused to do it. The State 
Department and the Justice Department refused to do it. And 
essentially they said, frankly, ``Hey, go talk to the White 
House because this is their signing statement.''
    So then we have the letter that I received earlier this 
week from the counsel to the President: ``While we appreciate 
the interest the committee may have in the signing statement, 
there are constitutionally based concerns about providing 
direct testimony that will touch on communications to or with 
the President, and particularly those in the nature of legal 
advice.''
    We asked the White House to come and explain the public 
policy and the legal arguments here. They refused to do it. The 
White House counsel is not some private attorney. In fact, I 
think it was established during the disputes during the Clinton 
Administration that the relationship between the President and 
official counsel was not the same as a purely private attorney.
    We are not talking about somebody up on a misdemeanor or 
felony rap, and we are not trying to interfere with the 
attorney-client privilege. We are asking the President's 
lawyers to justify the constitutionality of an argument that, 
having failed to defeat a bill through the normal legislative 
process and having not had the courage to veto the bill, 
although they wished obviously that they could have because 
they didn't want to put their members, I guess, through the 
choice of having to vote to override them, to come and tell us 
by what right they now announce that they, having signed the 
bill, will tell people when it is okay and when it isn't okay. 
Because that is what the signing statement does.
    And that is particularly relevant here because we are 
talking about encouraging people to not be deterred by a 
lawsuit. And now we have people saying, okay, Congress says I 
won't be sued, but the President says I can be sued. I mean, it 
is a clear blow at the core of this bill because what it says 
is, hey, the White House says that if I am sued and I plead 
this congressional act, the President who signed it may 
intervene and say, no, no. The act was unconstitutional in that 
regard. I signed it because why not sign an act that is 
unconstitutional if I have reserved to myself the right 
unilaterally to get rid of it or to tell people when they can 
enforce it and when not?
    So they refused to testify. And here is the next paragraph: 
``It is the policy of the Administration to cooperate with the 
legitimate inquiries of Congress to the fullest extent 
possible. In that spirit and toward that goal, we are prepared 
to provide an informal briefing to your committee presented by 
subject matter experts within the Executive Branch if that is 
desired by you.''
    No, it is not. We will not accept some back door, informal 
chat on a matter of overwhelming constitutional importance as 
opposed to testimony by them openly. Also, by the way, they say 
``subject matter experts.'' They mean that they will tell us 
again why they didn't like the bill, why they tried to kill it, 
and why he wished he could have vetoed it, but he knew it 
wouldn't be sustained. They apparently don't plan to discuss 
why they have the right to sign a bill and then tell people to 
ignore it. And they then called my attention to these letters 
which I just read.
    We have a situation in which, expressing the deep outrage 
of the American people at genocide, frustrated by our inability 
to do more, we passed a bill that my colleague from California 
initiated which said that those Americans whose sense of 
decency drives them to say that they do not wish to be 
financially complicit in one of the greatest crimes now going 
on in the world, that the people to whom I have entrusted my 
money can honor my outrage and not face a lawsuit, and allow 
States and cities and others to join in expressing to the 
government of the Sudan how outraged we are.
    And this Administration said, ``No, that might set a bad 
precedent for our powers.'' No, the American people have no 
role in this other than having voted every 4 years for us. And 
we will unilaterally, not having been able to kill the bill, 
tell people, feel free to ignore it.
    And as I said, in the nature of this case, since it is 
meant to encourage people not to be deterred by the threat of 
lawsuit, vitiating that really affects the law. So it is a 
signing statement that is intended to give, through that 
unilateral assertion of executive power, the right to undercut 
a bill that they could not defeat.
    It is bad for the efforts against the Sudan, and it is 
wrong as a matter of constitutional principle. And it is 
compounded by the arrogant refusal to discuss this in public. 
So I hope that this hearing proceeding, and I must say it is my 
intention at some point we will be thinking about whether the 
House ought to pass a resolution repudiating this effort by the 
President to take back, in this unilateral fashion, what he 
could not do through constitutional processes.
    Before I recognize the ranking member, I would ask 
unanimous consent that our colleague from California, an alumna 
of this committee, be allowed to participate in the hearing, 
showing the great spirit of charity on the part of this 
committee and overlooking the fact that she left us. Is there 
any objection?
    [No response]
    The Chairman. Hearing none, the gentlewoman will be allowed 
to participate. Under the rules, the full members of the 
committee will come first, and she will come at the end.
    The gentleman from Alabama.
    Mr. Bachus. Thank you, Mr. Chairman.
    Mr. Chairman, I thank you for continuing to hold these 
hearings focusing on Sudan and the genocide and Darfur. It is a 
cause I believe in strongly, and you and I and Ms. Lee and 
others have worked for years to try to have some positive 
influence on the slaughter there. I welcome the Congresswoman 
from California to the hearing, and I welcome her work in this 
regard.
    The Sudan Accountability and Divestment Act that we passed 
in this Congress had overwhelming bipartisan support. As you 
know, it became law on the last day of last year. We cannot 
rewrite history or save lives that are already lost in Darfur. 
However, we can and must resolve to do things better going 
forward.
    This law has the potential to give hundreds of thousands of 
peaceful men, women, and children in Darfur an increased chance 
of surviving the genocide. Economic and financial 
considerations have been used to both block and water down our 
Sudan capital markets legislation in the past. Economic and 
financial considerations are important. But in a loving nation, 
such considerations can never be used as a justification for 
turning a blind eye to genocide.
    Closing our financial markets to those who participate 
directly or indirectly in the slaughter of innocent human 
beings is well within our ability, and ought to be our bedrock 
principle. America is a loving nation, and allowing our 
financial markets to be utilized by an evil regime that 
conducts religious and racial genocide is inconsistent with our 
values and principles.
    This new law puts strong pressure on a government that has 
consistently engaged in genocidal actions, both directly and as 
an enabler of paramilitary factions that are harassing and 
killing people in Darfur and elsewhere in Sudan. It is vital to 
keep pressure on the Khartoum government because of the bait-
and-switch game it has played with the rest of the world for 
years, pretending to make strides to end the genocide and then 
going back on its word when the world's outrage is temporarily 
spent or focused elsewhere.
    Even now, in neighboring Chad, efforts to overthrow the 
current government are believed to be an attempt to frustrate 
international efforts to intervene in Sudan. The upheaval in 
Chad is widely believed to be supported by the Khartoum 
government. The rebels have even entered Chad from Sudan.
    President Deby's cooperation is essential for the 
deployment of peacekeepers in Darfur, and efforts to overthrow 
him starkly illuminate the intentions of the Khartoum 
government. Such destabilizing actions and violent forays make 
it clear that pressure on the Khartoum government must be 
unrelenting.
    The objectives of this law are ones I wholly embrace. 
Shutting off Khartoum's financial pipeline will bring us closer 
to the goal of halting the atrocities. It is a goal that I do 
believe is shared by the Administration.
    In regard to the signing statement, let me first say that 
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 arrogance and also an ignorance 
of the duties and obligations, as well as the powers vested in 
the Legislative Branch by the Constitution.
    Mr. Chairman, once again let me thank you for this 
important hearing. As I conclude, I would like to read a few 
passages from the prayer breakfast message yesterday. It is the 
President's prayer breakfast. The President was there, and 
Members of Congress were there, from both the Senate and the 
House. Over 4,000 people attended throughout the world. Members 
of the cabinet were also present.
    The message was from Ward Breen, who heads up the African 
Development Fund. Here is something that I think applies very 
directly to the efforts that Ms. Lee and others in this 
Congress have made to address the genocide in Africa.
    He says, and I quote, ``The question I have been asked by 
most of my American friends''--this is also a question I have 
been asked--``is why cross an ocean to help people when you 
need only cross the street to help your own?'' It is a great 
question, and the answer, of course, is that we need to do 
both. Solzhenitsyn said that disaster is defined by two things, 
magnitude and distance. So a small disaster close to home or a 
huge disaster far away results in what he describes as bearable 
disasters of bearable proportions.
    ``We have become too good at bearing. Our hearts should be 
broken by the things that break the heart of God. Specifically 
in Africa, there are many far-away disasters of epic 
proportions.'' He lists Rwanda as one. He goes on to say, 
``Today in Darfur, Sudan, 1.5 million homeless and thousands 
terrorized by raping and killing.'' He concludes by talking 
about AIDS. Epic disasters of epic proportions, far from home 
for most of us.
    Mr. Chairman, I thank you for your hearing, and I only hope 
that the Administration will take a more helpful, more 
cooperative role in this process. Thank you.
    The Chairman. I thank the gentleman. Before turning to the 
gentleman from North Carolina, I just want to express my 
appreciation. And people should know that the gentleman from 
Alabama now, and previously when he was chairman of the 
Subcommittee on Financial Institutions, has been one of the 
leading members of this Congress in trying to deal with the 
terrible problems that have afflicted people in Africa, from 
debt relief to now.
    This was a sign of a genuine passion that he has honestly 
and courageously articulated, and we will continue to work 
together on a number of these issues.
    Mr. Bachus. Could I introduce into the record the entire 
speech?
    The Chairman. Yes.
    Mr. Bachus. I would also like to add another thing he said 
that I had underlined: ``Proverbs, the Book of Wisdom, says, 
`Speak up for those who can't speak for themselves, and defend 
the rights of the poor and destitute.' If there are any people 
that can't defend themselves, it is the people of Darfur.''
    The Chairman. I thank the gentleman, and that will be made 
part of the record without objection.
    The gentleman from North Carolina is now recognized. I 
should note that he is also a member of the Judiciary 
Committee, and one of the leading legal scholars of this 
Congress.
    Mr. Watt. Thank you, Mr. Chairman. I won't take 4 or 5 
minutes, but I do think it is important to make two points.
    The first point is that I was not here in Congress during 
the lead-up to the actions that were taken with respect to 
South Africa. But in many respects, from what I have read about 
those steps leading to it, the White House and Presidents of 
the United States were just as reluctant to take any kind of 
affirmative, positive step until they were basically forced to 
do so.
    And this strikes me as yet another example of that, in 
which if this works out well, which really there is no good 
method to make it work out well retrospectively but it might 
work out well prospectively, I suspect this President will be 
bragging about all of the good things that he did to end the 
genocide in Darfur, including this legislation that we passed.
    The difference there, I think, was that signing statements 
were not the order of the day. And as the chairman has noted, 
we have found in the Judiciary Committee that this President 
has just, in a virtual dictatorial fashion, decided that he can 
ignore the laws that Congress passes, even those that he signs 
into law, by writing these signing statements that have the 
effect of watering them down or minimizing the impact of them.
    So this is not new, but it is new in the sense that signing 
statements have become such a precedent for this 
Administration, being used in so many different areas that it 
is unbelievable.
    The second point is, this is a particular disappointment 
because a number of us work with our local States to try to get 
them to pass divestment legislation. Many of them had 
reluctances, based on the uncertainty of the law and various 
and sundry other concerns that they were expressing, but they 
passed those laws anyway.
    To the extent that the signing statement that the President 
has attached to this bill muddies the water about whether 
States have the authority and what authority they have, it 
basically sets us back substantially, I think, in some of those 
States that were kind of concerned about what the standards 
were and concerned about what they could do at the State level 
not only with their government funds but with pension plans and 
other funds that were potentially being divested or were being 
invested in Darfur and Sudan.
    So this is a real concern, and I join the chairman in 
expressing that concern. And I am glad that we are having the 
hearing about it to try to minimize it as much as we can.
    I will yield back the balance of my time.
    The Chairman. I thank the gentleman. And I do want to note 
that we did get a letter from the Department of Justice as well 
which made similar arguments, which we will put in the record. 
And again, they declined to come and discuss it.
    But we did get a letter from the Department of the 
Treasury. They had one objection about their role in providing 
the specifics of the list, and we acceded to that. So on the 
procedural question, an important question but a question about 
how you did this, when Treasury raised an objection about how 
do to this better, we acceded to that. So it is not as if they 
were totally stonewalling.
    Now I am going to call on my colleague and neighbor from 
Massachusetts, who has been one of the leaders in the Congress 
in the effort to mobilize against the Darfur genocide. My 
colleague, Mr. Capuano.
    Mr. Capuano. Thank you, Mr. Chairman. Mr. Chairman, I 
really just came to kind of express my outrage at what is going 
on here, and to thank people at this panel for standing up.
    The easiest thing that I have seen anybody do is not--
nobody is for genocide, but to just remain silent, to just let 
things slide, to worry about other issues. And the truth is, 
let's be serious. I mean, if there is a complete and utter 
genocide and everybody in Darfur were killed, most of our lives 
will not be personally individually changed.
    Yet that is not why any of us ever ran for public office. 
That is not why you are here. And I would argue that anybody 
who feels that way or allows those feelings to consume them are 
less human than they should be. And I just want to thank the 
chairman and the ranking member for keeping this issue alive 
and moving it forward.
    And there are days that--I have been involved with this now 
for several years, and there are days that I, and I am sure 
that any of us who watch this, feel powerless, helpless, and 
that maybe nobody cares except a handful of us. I don't know.
    But I will tell you that those are the days that get me 
angry. I feel things that I don't generally feel when I am in 
public office. And those are days that make me remember that 
there have been people before us that have had better things to 
say than I will ever say.
    And there is one quote that I actually keep on my wall in 
the office from Nobel Prize winner Elie Wiesel that says, 
``There may be times we are powerless to prevent injustice. But 
there must never be times that we fail to protest.'' And if 
nothing else, I am here today to protest.
    I don't know that this will change anything. I don't know 
that we can get the President to actually do the things he 
should be doing. I don't know that we can get the world to do 
what they should be doing. But I do know one thing, that I am 
not going to stop. And I know that the people at this table and 
the people on this committee won't stop. If it doesn't save one 
life, do what we can do.
    And I will tell you that I don't know what we are going to 
do next. I don't know if this government will do anything next. 
But every day that goes by, I am looking for things that we can 
do, that we can take action on, little as they might be, hoping 
that someone will come up with a better idea than me.
    I mean, right now I am reduced to the fact that right now I 
have no intention of watching one minute of the Olympics. Not 
one minute will I turn that TV on. Now, I hope that changes. I 
want to watch the Olympics. I want to root for American 
athletes. But I won't.
    And I won't because we can't get China, the leading 
protector of the Sudanese government, to do anything. To do 
anything. To put their arms around their friends and say, guys, 
stop. Not only are they not doing that--and the world isn't, 
either. But the rest of the world is probably powerless to do 
it.
    The United States Government seems powerless to do it. All 
we have to offer here is military might and economic might. We 
seem at the moment to be unwilling to use our economic might, 
and certainly unwilling to use our military might. There are 
others who can, yet they refuse to do it. They talk a good 
game. The U.N. has talked a good game. But in the final 
analysis, people are still dying. The horrors are expanding, 
and they may well consume the entire region.
    You all know this. I am telling you things you already 
know. I am kind of doing this for the three people who might be 
watching this. At the same time, we do what we can do. I know 
that you are each doing what you can do.
    And I just want to say thank you for your leadership, for 
your courage, and more importantly, your commitment, your 
stick-to-it-iveness on an issue that again, for all of us, each 
and every one of us, it would be just easier to focus on other 
things and to worry about other things and to spend our time 
doing other things that maybe we could change a little more 
easily.
    But there is nothing more important, in my opinion, than as 
a human being standing up for the lives and wellbeing of other 
human beings that are being so oppressed and so unnecessarily 
victimized. So I just want to say thank you.
    The Chairman. Next we will hear from another one of the 
legal experts on this committee, a former judge who brought his 
legal learning and his passion to our deliberations. The 
gentleman from Texas, Mr. Green.
    Mr. Green. Thank you, Mr. Chairman. And I thank my 
colleague, Ms. Lee, for returning to the committee and 
continuing to stay the course. She has been a stellar, supreme 
example, if you will, for many of us. When we were neophytes, 
she was there to lead the way and to in fact show us the way 
over to the jailhouse. Some of us were involved in protest with 
her, and we were quite pleased to make a sacrifice for this 
cause.
    I am as disturbed as anyone with the behavior of the 
President. I think the comments of the chairman are most 
appropriate with reference to a resolution. I will gladly join 
the chairman in presenting a resolution such that we can at 
least express our deep desire to have the President understand 
the import of his actions.
    This President has put us in a position now where we have 
announced to the world, the United States of America has 
announced to the world, that genocide is taking place. But we 
are also saying to the world that we will watch the very thing 
that we have denounced continue when we had the power to make a 
difference.
    It is one thing to witness something when you are 
powerless, but an entirely different thing to sit silently by 
when you have the power to make a difference. History will not 
be kind to those who had the power and who refused to use it. 
History will not be kind to this President.
    We should not be kind. We should impose a resolution, the 
strongest possible resolution, denouncing his actions. I thank 
you, Mr. Chairman, and I yield back the balance of my time.
    The Chairman. And next another member of the committee--
    Mr. Bachus. Mr. Chairman?
    The Chairman. I will yield to the gentleman.
    Mr. Bachus. If I could, I would like to respond. I would 
like to think--I know the President has a dedication to Africa. 
He has quadrupled the funding for AIDS. I have to believe that 
this is a disconnect between the President and the State 
Department or some of his advisors. So I would hope that at 
least some opportunity is afforded--
    The Chairman. Well, the gentleman has certainly earned the 
right--I mean, in general that would be a courtesy we would 
give the President. But the gentleman from Alabama is certainly 
in the right. We won't take any action pending whatever 
conversation would happen.
    Mr. Bachus. But I do--Mr. Green, I do understand your 
passion for Africa that I share, the genocide. Let me just 
emphasize, I know the President is concerned about the 
genocide, so that I am puzzled why the State Department--
    The Chairman. Let me say to the gentleman, look. We are 
not--
    Mr. Bachus. --is not any more responsive.
    The Chairman. This is much too important an issue for 
point-scoring. I don't denigrate point-scoring, but we can do 
that in another context. What I am concerned about is the 
extent to which this may undercut. And if there could be some 
conversations that could diminish that effect, then there 
wouldn't be a need for further action. So we will work with the 
gentleman and be glad to do that.
    Mr. Bachus. You know, as has been said here, the President 
did sign the legislation. He did attach a signing statement. 
And there needs to be open discussion of this.
    The Chairman. We will look forward to that.
    Mr. Bachus. And as you read the letters, I think maybe 
the--I am sorry that they didn't see fit to be here.
    The Chairman. I appreciate it.
    Let me--finally, another perspective. Our colleague from 
Missouri who is also, of course, a minister, and I am a great 
believer in the separation of church and state, but when we 
talk about a great moral evil such as this genocide, there is a 
perspective that the gentleman from Missouri brings that we 
have frequently found useful.
    And so I am glad to recognize Mr. Cleaver.
    Mr. Cleaver. Thank you, Mr. Chairman. I rarely ever miss 
our committee hearings, and I don't like to be late when I am 
here. I changed my flight schedule today because I needed for 
my own psychological wellbeing to at least come to express my 
concern.
    In my real life, as the chairman mentioned, I am a United 
Methodist pastor, and 5 years ago, we adopted 20 young men 
referred to by the media as the ``Lost Boys.'' These are young 
men who were able to get out of the Sudan. They left during 
their early teen years, and we provided housing for them, and 
now most of them are in the University of Missouri.
    They have no connection with their families at all. They 
don't know where their mothers, their fathers, their sisters, 
and their brothers are, and thus the name the Lost Boys. And 
they immigrated here in this country, and I wish the people of 
the Congress and the State Department and the White House could 
spend one hour listening to these young men tell of what they 
saw.
    It is a tragedy that a 12-year-old could stand behind a 
tree and watch people he has known all of his life be machete'd 
to death. I tremble. I tremble at the thought that our country 
could act and fails to do so.
    My hope is that some kind of transformation will occur, 
whether it is in the State Department or in the White House, 
that would allow this country to do what it ought to do in the 
face of almost unparalleled agonies experienced by people.
    It seems to me that the signing statement that trumps all 
signing statements is the United States Constitution. It has 
already been signed. And that cancels out anybody signing 
anything that cancels it out. I am concerned that when we have 
these signing statements, it undermines the moral integrity of 
our Nation and it tarnishes our image as we stand on the world 
stage.
    Thank you, Mr. Chairman.
    The Chairman. I thank the gentleman.
    Finally, joining us today is our colleague who was the 
author and guiding spirit of this legislation. She combined a 
passion with an understanding of the process. I worked 
patiently with her, and very well staffed as she was so that we 
were able to deal with legitimate concerns that the 
Administration raised, as I said, when the Treasury had some 
arguments about how best to do it.
    But her combination of discipline and passion is the reason 
that this bill became law. The gentlewoman from California, Ms. 
Lee.
    Ms. Lee. Thank you very much, Mr. Chairman. And first, let 
me just say to you this never could have happened without your 
leadership, your intellect, and your understanding of what we 
had to do in terms of making sure that the legislative 
processes worked in this body.
    But also I want to thank you for your moral and ethical 
commitment, and your understanding of really America's role in 
the world and how this committee, under your leadership as 
chairman, can really address and become once again a leader in 
setting a new moral standard. So thank you, Mr. Chairman, for 
your leadership.
    I also thank Mr. Bachus for his commitment and his 
willingness and understanding to work in a bipartisan fashion. 
And I know that this stems not for political reasons, but for 
moral reasons. It comes from his heart. He understands that 
this is necessary in terms of how we address many of these 
moral crises. And yes, genocide is a great moral and 
humanitarian crisis.
    I have to thank him and this entire committee for stepping 
up to the plate and for taking this on head-on. And I think Mr. 
Watt mentioned the South Africa model. Well, my predecessor, 
now Mayor Ron Dellums, carried the divestment legislation. And 
as I remember it, President Reagan vetoed that legislation. But 
you know what? The Congress overrode that veto and finally put 
the United States on the right side of history as it related to 
the brutal, oppressive regime of apartheid in South Africa. And 
the rest is history.
    And so now we are at another moment when we have another 
great crisis, and that is the genocide that is occurring in 
Darfur. This Congress, in a bipartisan way, passed the 
toughest, most reasonable divestment legislation which we are 
talking about today. And the President, I guess, knew that he 
could not override--that he could not veto this bill because, 
once again, we would have overridden the veto.
    And so I think this is very cynical what took place, Mr. 
Chairman, because this is really where the rubber meets the 
road. The President declared genocide as taking place in 
Darfur, and indicated several years ago that he would take all 
measures to address this genocide.
    And so here now we have a bill that would begin to put the 
squeeze on Khartoum, would allow our people in this country, 
our universities, pension funds, States, to begin to do what 
they needed to do to address this genocide, and he issues a 
signing statement that in essence would try to send a signal 
that this is not something that he would approve. And so I 
think it is very contradictory. It is very cynical. And I am 
pleased that we are holding the hearings today.
    I want to thank our panel for being here and for your 
leadership, and all of our young people, the faith community, 
all of the groups that have really been the wind beneath our 
wings throughout the country, who have insisted that we do 
this.
    Finally, let me just say that the President also has issued 
a signing statement on our bipartisan effort on the defense 
authorization bill, where we insisted that there should be no 
permanent military bases built in Iraq. Once again, subverting 
the law, issued a signing statement saying that this is 
something that, in essence, the Administration is not going to 
comply with.
    This governmental lawlessness that we see is unbelievably 
wrong. It is unconstitutional. And again, Mr. Frank, I want to 
thank you for your leadership and for helping us try to figure 
out how we can move forward to make sure that the law is 
complied with. We cannot allow another Rwanda to occur, where 
one million people died and our country did much of nothing 
except, after the fact, apologize.
    So thank you again.
    The Chairman. Thank you. And let me just note she called 
out the example of the South Africa sanctions bill. We are told 
sometimes by analysts that sanctions never work. One of the 
greatest moments I have had as a Member of Congress was to 
stand in Statuary Hall with a large number of other members and 
listen to one of the great men of this time or any time, I 
believe, Nelson Mandela, thank the Congress of the United 
States for passing the sanctions bill, and telling us that the 
passage of the sanctions bill by the United States over Ronald 
Reagan's veto was a very important part of the effort to get 
rid of apartheid. Anyone who tends to dismiss sanctions has to 
confront the argument to the contrary of Nelson Mandela.
    We will now begin the testimony. We will start with Mr. 
Jerry Fowler, the executive director of the Save Darfur 
Coalition, with whom we worked. I have to say a lot of work 
went into this. It was not some simple statement, as it 
appeared at the first. But the staff on this committee, Ms. 
Lee's staff and others, worked very hard to get this done.
    I would also make explicit what should be clear. This is a 
one-sided panel because the other side of the argument refused 
to show up. We invited the Justice Department. We invited the 
State Department. We invited the White House. They refused to 
come.
    So this was the bipartisan effort to produce a panel that 
we think is representative of the argument, and we regret that 
those who we thought might have defended the position of the 
Administration declined to do so.
    Mr. Fowler, please.

  STATEMENT OF JERRY FOWLER, EXECUTIVE DIRECTOR, SAVE DARFUR 
                           COALITION

    Mr. Fowler. Thank you very much, Chairman Frank, 
distinguished members of the committee, and Ms. Lee. Thank you 
for this opportunity to speak to you today about this issue, 
and thank you especially for your continuing leadership on it.
    As the president of the Save Darfur Coalition, I would like 
to ground our discussion today in the human reality of the 
crisis in Darfur, which this law was designed to help change. 
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.
    And I want to put a human face on it by telling a story 
from the first time that I went to the region. I traveled to 
Chad in May of 2004, to the Sudanese border where refugees were 
coming across the border every day.
    And one day, near the end of that trip, after I had talked 
to dozens of refugees and heard their stories, I met a woman 
named Hawa. And you have to understand that the daily 
temperature there was 115 to 120 degrees. There were 
sandstorms. It was an incredibly harsh environment.
    I had heard all of these stories of suffering, and I met 
Hawa in her little hut, a little makeshift hut that she was 
living in with her four children.
    She told me about the day her village was attacked. On that 
day, her father was killed and her brother was killed. A cousin 
was killed. Thirty people in her village were killed, and her 
mother disappeared. And I have to admit that I suddenly felt 
overwhelmed by that suffering, by her suffering, and I wanted 
to get out of that hut and just get out of the oppressive 
atmosphere in there.
    And I started to back out of the hut, and she started 
speaking in a low voice. And I looked over at her, and tears 
were coming down her cheeks. And she was saying, ``What about 
my mother? What about my mother? I don't know where my mother 
is. I don't know if she is dead or alive.'' And I felt as 
though she was asking me to give her an answer, which I 
couldn't possibly give.
    And the only thing that I could think to say was to ask her 
for her mother's name and to tell her that I would bring her 
mother's name back to America and tell Americans her mother's 
name. And her mother's name is Khadiya Ahmed. Khadiya Ahmed.
    And so now I am telling you that name, and I am telling you 
that as vast as this catastrophe is, it ultimately comes down 
to one woman who doesn't know where her mother is and probably 
won't know where she is until there is peace and security in 
Darfur.
    We are nearly 5 years into this conflict, and lives still 
hang in the balance even as we speak today. Over two million 
people remain displaced inside Darfur, and another couple of 
hundred thousand across the border in Chad. The best chance for 
improved security for civilians in Darfur is the full and 
effective deployment of a 26,000-strong United Nations/African 
Union civilian protection force. Yet more than 6 months after 
the Security Council unanimously authorized that force, only a 
third of it is on the ground, and those are ineffective African 
Union troops who simply switch their hats from green to blue.
    The primary reason that this force has not been deployed is 
that the Sudanese government is successfully impeding its 
deployment by stalling on basic technical issues. Then last 
month, its army brazenly went a step further and ambushed a 
clearly marked U.N. convoy. Lives will continue to be lost if 
the United States and the international community do not act 
more vigorously to impose swift and strong consequences on 
Sudan.
    While the United States had led international efforts to 
impose sanctions on the Sudanese regime, existing sanctions 
have not been enough to bring about the necessary change in the 
regime's behavior. The legislation that we are discussing 
today, which was unanimously passed by this Congress, called 
SADA, the Sudanese Accountability and Divestment Act, was 
carefully crafted as another tool to generate concerted 
economic pressure on the government of Sudan.
    Its successful passage was the product of a vibrant 
partnership between House and Senate leaders, including the 
leaders here today, and a broad constituency of conscience that 
brings together a diverse group of civil society organizations, 
religious groups, and grassroots activists.
    By signing the bill, President Bush has enacted the extra 
legal protection offered to States that decide that their tax 
dollars shall no longer be invested in companies that help fund 
the genocide in Darfur. 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.
    Each day of delay in imposing real economic and political 
consequences on Sudan is another day that refugees will suffer, 
that girls and women will be exposed to rape while gathering 
firewood, and that Hawa, the woman I met in 2004, will wait to 
find her mother and return home. We ask for your continued help 
and leadership in ensuring that their days of suffering and 
waiting will be numbered. Thank you very much.
    [The prepared statement of Mr. Fowler can be found on page 
39 of the appendix.]
    The Chairman. Next, I am delighted to be joined by one of 
our leading scholars, the former chief judge of the District of 
Columbia Circuit Court, Judge Wald.

 STATEMENT OF THE HONORABLE PATRICIA M. WALD, FORMER JUDGE AND 
CHIEF JUDGE, UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF 
                        COLUMBIA CIRCUIT

    Judge Wald. Thank you, Chairman Frank. And thank you, other 
members of the committee, Ranking Member Bachus, and 
Representatives Lee, Watt, and Green for inviting me to testify 
here today.
    I might say before I begin my testimony, which will focus 
on the signing statements aspect and put this signing statement 
hopefully in the context of the larger dispute about signing 
statements, I would like to put on the record the fact that I, 
too, have had some personal relationships with genocide.
    As you may know, I sat for several years--2 years--on the 
International Criminal Tribunal for the former Yugoslavia. And 
during that time, I sat on a genocide trial, in fact, the first 
genocide trial there, dealing with the notorious massacre of 
7,000 to 8,000 young Bosnian men in one week at Srebrenica, 
called at that point the worst massacre since World War II. 
Hopefully Darfur will not reach that title.
    So I have seen firsthand the witnesses, hundreds of 
witnesses, testifying. I will cite only one woman witness in 
this genocide, who said, ``In one week I lost my father, my 
husband, my son, and 20 male relatives,'' gone in one week in 
that genocide.
    The second point, and then I will move on to the focus of 
my testimony, is that I have done work since leaving both 
courts with international foundations that deal with some of 
these problems of atrocities and genocide abroad. And I have 
come to know how important is the role of finance in these 
genocides.
    For instance, even the Bosnian genocide was financed, in a 
sense, by the government of Yugoslavia. I mean, all of the 
soldiers were being paid out of Belgrade. But even more 
relevant here, I am sure you are aware of the pending 
prosecution of Charles Taylor, the former president of Liberia, 
who has been indicted by the Sierra Leone court for his role in 
financing the terrible civil war and the atrocities attendant 
thereto, the blood diamonds, etc., in Sierra Leone.
    So I think this bill is especially important, as the last 
speaker noted, because of the arrogance with which the current 
government in Sudan and Darfur has defied international law, 
for instance, the International Criminal Court. And in this one 
instance, as I am sure you are aware, despite Administration 
opposition to the International Criminal Court, the United 
States did not veto in the Security Council the Security 
Council resolution to refer the Darfur case to the 
International Criminal Court, which has already brought down 
two arrest warrants against two high government officials in 
Darfur.
    Unfortunately, the premier has more or less thumbed his 
nose at those, has refused to give up the indictees, but not 
only that, with one of them he has appointed that particular 
indictee to oversee the deployment of humanitarian aid and the 
situations in the refugee camps in that country, which is sort 
of the ultimate thumb your nose. So I do think that financial 
sanctions are important. I will now go on to the main business.
    In terms of signing statements, I will make five points 
briefly about signing statements in general.
    The Chairman. Let me just say, we have--although for a 
Friday with no votes it is a big turnout, we are not under a 
time constraint, so the 5-minute rule is pretty flexible.
    Judge Wald. All right. Well, I will try to stay within it 
anyway.
    The Chairman. Well, if you did, Judge, you would have 46 
seconds.
    [Laughter]
    The Chairman. I mean, I am no Rehnquist. But you go ahead 
and take your time.
    Judge Wald. All right. Okay.
    Mr. Bachus. Yes. Actually, we are asking you to take 
longer.
    Judge Wald. Okay. I accept.
    As one of the speakers has already pointed out, the 
Constitution says nothing about signing statements. The 
Constitution is very clear in Article I, Section 7, that when a 
bill that has passed both Houses of Congress is presented to 
the President, quote from the Constitution, ``If he approves, 
he shall sign it. But if not, he shall return it with his 
objections.'' And it goes on to say, of course, that if both 
Houses re-pass it by a two-thirds vote, again a quote from the 
Constitution, ``It shall become a law.''
    Now, this would seem to be relatively clear about the 
process by which a bill becomes law. Yet I would have to 
acknowledge that since the early 1800's, Presidents of both 
parties have appended signing statements to bills that they 
have approved.
    Now, in most cases those signing statements are 
noncontroversial. They say, this is a great bill. I want to 
thank ``X'' and I want to thank ``Y'' for helping to pass it. 
Or even in cases of ambiguity, if a provision in a bill is 
ambiguous, nobody has appeared to controvert the President's 
right to say, well, I want you to know that in construing this 
ambiguous provision, I am going to construe it in the following 
way.
    Now, what has caused controversy is where the President has 
said, I am not going to enforce this particular provision 
because I think it is unconstitutional, or what we call the 
constitutional avoidance interpretation, in which he says, if I 
interpret it in a certain way, then I will consider it 
unconstitutional. So I am not going to interpret it in that way 
regardless of how clear the congressional intent is that it 
should be interpreted in a particular way.
    Now, one of the scholars who studied this at much greater 
depth than I have, certainly, has said that up to 1981, there 
were 100 such provisions which had been challenged 
constitutionally by the whole number of Presidents up to that 
time. But actually, in only 12 cases had the President gone on 
not to enforce the law afterwards, after complaining.
    And again, candor acknowledges that even in recent times, 
some of our Presidents, Democratic as well as Republican, have 
used this device. For instance, President Carter refused to 
abide by the rider to an appropriations bill that prohibited 
his using funds to put in effect his amnesty plan. He went 
ahead and used them. Somebody attempted to sue, and the court 
threw the case out and said there was no standing. And so his 
program went ahead.
    Now, President Reagan began using the constitutionally 
objecting signing statements much more plentifully than had 
prior Presidents. He also advanced, through his Attorney 
General, Edwin Meese, the notion that courts in construing a 
statute ought to look at presidential signing statements, and 
got them reproduced along with legislative history in the U.S. 
Code and Congressional Service.
    However, I stop here to point out there have been very few 
instances in which courts have actually cited signing 
statements. There have been a few, but not very many. And also, 
they have generally used them in a confirmatory way to say, 
well, we arrive at this conclusion by ourselves, according to 
the other evidence, but the signing statement goes along with 
them. I know of no instance in which a court has said, well, I 
am going to depend on this signing statement as some kind of 
controlling evidence to say that the law is unconstitutional.
    Now, up until the second President Bush, again relying on 
some of the scholars, 600 provisions since the beginning of our 
history had been objected to constitutionally by all of the 
Presidents combined. As of the near end of President Bush, the 
second President Bush's term--and I don't have the exact number 
because, to my knowledge, it hasn't been compiled--but it is 
well over 800 separate provisions in his two terms have been 
constitutionally objected to in a way either that says, I will 
not enforce, but usually somewhat similar to the one in this 
particular signing statement, which says, I will interpret it 
in a way that meets my constitutional objections to it, and I 
will enforce it in that way only.
    The Chairman. Judge, let me ask you so I get it right. You 
are saying prior to January 20, 2001, it was 600, and since 
then it has been 800? Is that--
    Judge Wald. Over 800, but I don't have the exact.
    The Chairman. 600 total entire before?
    Judge Wald. Provisions. Provisions. The numbers get 
sometimes confusing because some people talk about the number 
of statements--
    The Chairman. You are talking about provisions. Yes.
    Judge Wald. --but one statement can have a lot of different 
provisions. And I am taking my numbers from the American Bar 
Association task force report.
    Mr. Bachus. Mr. Chairman, if I could add to that.
    Judge Wald. Go ahead.
    Mr. Bachus. The signing statements, as you have said, they 
started under President Reagan--
    Judge Wald. Well, they--
    Mr. Bachus. --and I think actually before that.
    Judge Wald. Yes.
    Mr. Bachus. But, I mean, I think the first common--
    Judge Wald. They escalated. They escalated.
    Mr. Bachus. And I agree with your statement that most of 
them do not challenge--or a growing number. For instance, 
President Clinton, 18 percent actually challenged.
    Judge Wald. Right.
    Mr. Bachus. The rest were supportive of the legislation.
    Judge Wald. Right.
    Mr. Bachus. The distinction between that and this 
Administration is that 78 percent of them through September of 
last year were objecting to the bill or saying they were going 
to enforce it in only a certain way. So there is a growing 
tendency not so much to have signing statements but to say that 
they are not going to enforce it or that they object to the--or 
that they will enforce it in a certain way.
    Judge Wald. Yes. You are absolutely right, Representative 
Bachus. And the numbers that are in my more formal statement 
point out that those numbers have gone up. And President 
Clinton stayed with that trend. He had, I think the number was 
105 provisions that he objected to constitutionally. But the 
numbers since--I think all experts agree that the numbers since 
President Bush II have gone up exponentially.
    But the other difference about the current use of them is, 
in the past, it is pretty well been confined sometimes to a 
particular provision that has come up here or a particular 
provision that has come up there.
    But the repeated use in the Bush II signing statements of 
mechanical, ritualistic, boilerplate--those are what some of 
the scholars call them--designations which don't tie down any 
specifics as to the reasoning, as indeed this one doesn't, but 
use terms like ``unitary executive'' or ``commander in chief 
powers'' or ``the President's exclusive power in foreign 
relations''--for instance, the unitary executive has been used, 
that term, ``This is in violation of principles of the unitary 
executive,'' 82 times.
    And I might add here that although I have no notion that 
there is a connection, in past signing statements, very often 
``unitary executive'' has been used to constitutionally object 
to provisions in congressional enactments that required 
subordinate members of the cabinet or the agencies to report 
directly to Congress.
    I don't know if that has any relationship to why you got a 
negative response to your pleas for a government witness here. 
But I know that it is a recurrent theme that the President 
says, no, my people can't go directly to Congress. It has to 
come up through me.
    Now, the American Bar Association task force on which I 
served as a member, and many other scholars, say there really 
is no constitutionally valid justification for signing a 
statement by the President and then saying, I am not going to 
enforce it, or I am only going to enforce it in a way that is 
contrary to the clear congressional intent.
    This, ironically, is a fairly strict constructionist 
theory. But in the Supreme Court case of Clinton v. New York, 
the Supreme Court did say that even when Congress authorized a 
line item veto, it was not constitutional. Justice Stevens 
wrote the opinion, saying, look, the Constitution says how a 
bill becomes law. And maybe it is hard sometimes. Maybe it 
means tough choices. But the Founding Fathers meant there to be 
tough choices, and that is the way it is.
    Now, again, I have to point out that this is not a 
unanimous theory. As I am sure you are well aware, during 
President Clinton's term, Walter Dellinger, who is a much 
respected colleague, legal colleague, did write a memorandum 
which said that under Article III, the President has the duty 
to see that the laws are faithfully executed, and he therefore 
has the right to refuse to execute a law that he believes 
unconstitutional if he also believes that the Supreme Court 
will uphold his view, even if the Supreme Court has not yet 
done so. I don't buy into that theory, but it certainly does 
have--
    The Chairman. Just so we can--what was his official 
position at the time he wrote that, Judge?
    Judge Wald. At the time of that, I believe he was head of 
the Office of Legal Counsel.
    The Chairman. Of Legal Counsel?
    Judge Wald. Right. And he wrote it--there were two 
memorandas. One was to Ab Mikva, who was White House Counsel. I 
don't remember who the other one--
    The Chairman. But it was in his official capacity in the 
Justice Department?
    Judge Wald. Yes. It was in--oh, yes. Absolutely.
    The Chairman. I just wanted to make that clear.
    Judge Wald. It is in the official records.
    Mr. Bachus. And Judge, let me ask. The case you referred 
to, that is the 1998 Supreme Court case?
    Judge Wald. The Clinton v. New York.
    Mr. Bachus. On the line item veto?
    Judge Wald. Yes. I have it here someplace, but I am pretty 
sure that is the right date.
    Mr. Bachus. Yes. Thank you.
    Judge Wald. But there was a follow-up, I mean, in all 
fairness to the Dellinger memo. The follow-up said, but the 
President ought to use any such power very cautiously, and in 
using it, he ought to take account of three things: one, its 
likely effects on individuals or entities; two, its effect upon 
the constitutional prerogatives of the President; but three, 
the likelihood of judicial resolution of the issue coming 
about.
    The Chairman. Judge, we should wrap up now because we have 
already started questioning you.
    Judge Wald. All right. I am--let me make four points about 
this signing statement. Just to conclude the other, no court 
has yet ruled which of those interpretations is correct.
    All right. As to this particular signing statement, four 
brief notes. One, it uses the same kind of cryptic, non-
detailed reasoning as to why the President says that he will 
enforce it only in a manner that doesn't conflict with his 
authority. In other words, even in the Department of Justice 
letter which preceded the passage, which I have a copy of, they 
never--they say there are laws, treaties, etc., etc., on the 
book that may conflict. They never cite one.
    I was trying myself to think about it. I can't even 
speculate as to what kind of treaty or law on the books that 
they refer to but never tell us what they are. It does seem, 
and the ABA task force said, that if the President is going to 
do something as important as say, I am not going to enforce 
this law the way Congress meant to, he really needs to be 
specific in terms of what he thinks it conflicts with or what 
kind of situation he thinks could cause a problem.
    Okay. Secondly, in most cases where even President Bush has 
used these unitary executive signing statements in the past, he 
has been defending, in his own view, his own turf, namely, the 
executive power versus congressional encroachment upon that. 
Here we have a very enigmatic role that he is taking on because 
he has to admit that the preeminent role given by the 
Constitution is to the Federal Government. It is not to the 
executive alone.
    Certainly within the Federal Government under Article I, 
Section 8, the primary role is given to Congress in regulating 
foreign commerce. So in effect, he is taking on a role of 
defending Congress against Congress's own action, which is 
somewhat strange. And I point only to the steel seizure case in 
which Justice Jackson's famous soliloquy said that even where 
there is any acknowledged shared power between the executive 
and Congress, the executive power is at its lowest ebb, where 
Congress has already legislated. And that is certainly true in 
this case.
    The third point is: It is unclear whether there can be a 
judicial resolution here. Theoretically, the President would 
have to move against the State if a State went ahead and 
divested, and he thought that that was interfering with his 
power. But it is very unclear in present law whether there 
would be standing, who would have standing, whether the courts 
would take such a case or not. So we don't have any clear case 
where it will be settled by the courts.
    And my last point is: Some people have said, well, signing 
statements are not the problem. I mean, the President could go 
out and make a speech tomorrow night at the Hilton and say the 
same thing and it wouldn't be any constitutional problem. It is 
the non-enforcement itself which poses the constitutional 
dilemma.
    Whether or not that is true, I want to point out that I 
believe, having worked in the Federal Government, that as a 
practical matter, signing statements do have real world 
effects. They may, as some people have alluded, have 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 and in which their ``benign-ness`` or 
their antipathy could be very important in other areas. There 
are all sorts of ways of leveraging power, and so the States 
might have reason to worry about that.
    I will conclude there.
    [The prepared statement of Judge Wald can be found on page 
53 of the appendix.]
    The Chairman. Thank you very much, Judge. And we obviously 
had a hard time restraining ourselves, so we will get back to 
it.
    We are also very pleased to be joined by Paul Schwartz, who 
is a partner in Cooley Godward Kronish. People will note the 
witnesses were put together so we have people who have been 
primarily concerned with the specific subject, some legal 
experts, and then a State official who is the intended target 
of both our action and the signing statement.
    Mr. Schwartz, please go ahead.

 STATEMENT OF PAUL H. SCHWARTZ, ESQ., PARTNER, COOLEY GODWARD 
                          KRONISH, LLP

    Mr. Schwartz. Thank you, Mr. Chairman, Ranking Member 
Bachus, members of the committee, and Representative Lee. I am 
proud to be, in addition to a partner in Cooley Godward 
Kronish, counsel to the Sudan Divestment Task Force. And I am 
grateful for the opportunity to testify today concerning the 
constitutionality of State and local divestment measures 
authorized by SADA in light of the President's signing 
statement.
    Many people believe, Mr. Chairman, that targeted divestment 
from foreign companies that provide the most direct support for 
the government of Sudan is an essential tool in the fight to 
end the genocide in Darfur and to protect the financial and 
reputational interests of U.S. pensioners.
    SADA serves the important function of ensuring that those 
measures rest on solid constitutional ground. It does that by 
giving State and local divestment measures that comply with the 
terms of the statute the blessing of Federal law, thereby 
making them part of the Federal Government's own policy 
response to the genocide.
    Despite signing the legislation, the President has tried to 
unsettle the constitutional ground by suggesting that even 
State measures explicitly authorized by Federal law might 
``interfere with implementation of national foreign policy,'' 
and thus conflict with the Constitution's vesting with the 
Federal Government of the exclusive authority to conduct 
foreign relations.
    In my view, the Administration's argument is without any 
legal merit. Nevertheless, a risk exists that the signing 
statement could create a misimpression among States and local 
governments that are considering targeted Sudan divestment that 
SADA does not effectively protect their actions. I hope, 
therefore, that this hearing will reaffirm the solid 
constitutional ground on which State and local measures 
authorized by SADA rest.
    The constitutional analysis, in my view, really is 
straightforward. When the Federal Government properly enacts a 
law, that law embodies policy of the United States. It is 
policy of the United States. Consequently, when a law 
authorizes State measures that touch on foreign affairs, the 
Federal Government has expressed a judgment that the measures 
do not impede Federal foreign policy but rather complement that 
policy, are part of that policy. Accordingly, such measures 
cannot violate the constitutional principle that States may not 
unduly interfere with Federal foreign policy.
    And that is particularly so, I submit, when, as here, the 
President actually signs the legislation. As Judge Wald 
explained, Article I, Section 7 of the Constitution, the 
presentment clause, tells the President exactly what he must do 
when Congress passes a bill. If he approves it--``approve'' is 
the word that the Constitution uses--he shall sign it. But if 
not, he shall return it, in other words, veto it.
    By signing SADA, therefore, the President, in the words of 
the Constitution, approved it. It is especially difficult to 
see how a State action can be an unconstitutional interference 
with Federal foreign policy when it has been approved not only 
by Congress but by the President as well.
    In neither the Zschernig case nor the Garamendi case from 
the Supreme Court, two cases that the Justice Department has 
cited in a letter for the Administration's position--in neither 
one of those cases did the Supreme Court hold that State 
measures authorized by Federal law could somehow constitute an 
unconstitutional interference with U.S. foreign policy.
    The Administration again in this Justice Department letter 
from October 2007 seems to take the position that because 
Article II of the Constitution confers on the President certain 
powers to conduct foreign affairs, that Executive Branch 
policies with respect to foreign relations somehow can trump 
even properly enacted Federal law like SADA.
    That is not so. In our constitutional system, Congress, 
too, plays an important role in foreign affairs, especially 
when, as with investments in and divestment from foreign 
companies, it involves the regulation of foreign commerce.
    The President's signing statement does nothing to change 
this constitutional analysis. Presidential signing statements 
do not have the force of law. They are simply statements of 
opinion. In my view, in this case, that opinion is wrong.
    Because SADA reflects the explicit policy judgment of the 
Federal Government, articulated by Congress and approved by the 
President, State and local divestment measures that comport 
with the statute also comport with U.S. policy regarding Sudan 
and the genocide, States and local governments should feel 
confident that their actions are fully consistent with the 
United States Constitution.
    Once again, I thank the committee, and I look forward to 
answering your questions.
    [The prepared statement of Mr. Schwartz can be found on 
page 43 of the appendix.]
    The Chairman. Thank you, Mr. Schwartz.
    And finally, a very important witness, my new neighbor, 
Frank Caprio, who is the general treasurer of the State of 
Rhode Island, and very much in the forefront of this movement, 
and is one of the State officials who has really been put in 
the vortex of this by whatever conflict might have arisen from 
the signing statement.
    Treasurer Caprio, please.

STATEMENT OF THE HONORABLE FRANK T. CAPRIO, GENERAL TREASURER, 
          OFFICE OF THE RHODE ISLAND GENERAL TREASURER

    Mr. Caprio. Thank you, Chairman Frank, and I hope you are 
over the loss of the Patriots on Super Bowl Sunday. We are 
still suffering the effects in Rhode Island.
    The Chairman. I know. But I have regained the ability to go 
up and down Route 1, so that is a compensation.
    Mr. Caprio. Chairman Frank, Ranking Member Bachus, and 
Representatives Lee, Watts, and Green, it is an honor to be 
here today with you.
    Chairman Frank, I especially liked your reverse Houdini 
story today. I grew up in a household where I was one of five 
children, and my mom--her affectionate nickname from my dad was 
Houdini because whenever there was any extra money in the 
household, it disappeared. My dad would say she pulled a 
Houdini. But really, she was spending it on the kids. She 
wasn't spending it on herself. But it was a very common 
discussion in the household of how Houdini made the money 
disappear.
    My name is Frank Caprio, and I am chairman of the State 
Investment Commission of Rhode Island and the elected General 
Treasurer of Rhode Island. As a fiduciary of a State that 
successfully passed divestment legislation in June of 2007, I 
am here before you today to thank you for passing the Sudan 
Accountability and Divestment Act, and to highlight the aspects 
of the Act that are important to the States, Federal 
authorization of divestment and protection from litigation.
    In the most basic sense, divestment from Sudan represents a 
choice by the State to invest its money in concert with the 
value of its citizens. Accordingly, States possess both the 
right and the capacity to invest based on social, humanitarian, 
and financial values, as long as those decisions are consistent 
with prudent investment standards. The targeted approach to 
divestment followed successfully in Rhode Island and in other 
States addresses these concerns while upholding rigorous 
financial standards.
    Having passed this recent act, Congress is well aware that 
targeted divestment works. To see proof, you need not look 
further than the recent withdrawal from the Sudan of European-
headquartered powerhouses ABB and Siemens, who cited divestment 
as their motivation. And last spring, while we in Rhode Island 
were considering our State act, which was signed into law, 
Rolls Royce, PLC withdrew from the Sudan.
    It is becoming obvious that investment in a regime 
committing genocide carries too high a risk to justify the 
pursuit of doing business in such a region. These companies' 
actions are tremendous victories, and a call for the States to 
continue on this course. The passage of this Act serves to 
create a divestment framework, end ambiguity, and galvanize the 
States' rights to act in their own financial as well as 
humanity's best interests.
    The President's murky signing statement reinstates the fear 
of legal action that this Act was intended to remove. It is 
counterintuitive 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.
    If we truly seek to protect commerce in the face of 
divestment, then we must uphold the tenets of this Act to its 
highest degree, ensuring the enforcement of a uniform 
procedure. We cannot afford to take an ambiguous stand on the 
genocide in Darfur.
    In conclusion, Mr. Chairman, the Sudan Accountability and 
Divestment Act of 2007 displays the Federal Government's power 
to enable States to join a collaborative movement, allowing 
even the smallest State in our Nation like Rhode Island, even 
though our pension fund is over $8 billion, to leverage the 
collective strength of this great union to put an end to one of 
the generation's greatest genocides.
    Thank you for your time.
    [The prepared statement of Mr. Caprio can be found on page 
36 of the appendix.]
    The Chairman. Thank you, Treasurer Caprio.
    I just want to say this bill, it seemed like a simple idea, 
even to me. And it took a lot of work to get it into this form.
    And I just want to acknowledge the staff--on Congresswoman 
Lee's staff, Christos Tsentas, as they began the bill; Jim 
Segel, Dan McGlinchey, and Deb Silberman of the Democratic side 
on the Financial Services Committee; and Joe Pinder and Anthony 
Cimino on the Republican side. I think one of the reasons we 
got a signing statement is that the bill was pretty 
unassailable in any other way. So we take some pride in that.
    I am now going to begin with our colleague from California, 
who has a plane to catch. And so the author of the bill, the 
gentlewoman from California, is recognized for 5 minutes for 
questioning.
    Ms. Lee. Thank you very much, Mr. Chairman. And I 
appreciate you allowing me to ask this question because I do 
have to leave for California. But this was such an important 
hearing today. And I want to thank you again, and Mr. Bachus, 
for holding this. This is so important in oversight and in 
making sure that the people of Darfur somehow, someday, 
hopefully sooner rather than later, are able to live their 
lives, and those who are still alive return home.
    First, let me just say, Judge Wald, you mentioned the 
signing statement dealing with the tax money as it relates to 
establishing permanent bases in the National Defense 
Authorization Act, which I mentioned in my opening statement. I 
hate to say, I really could take this personally but I won't 
for the present.
    These are both my provisions, one, my ``no permanent 
bases,'' which we have been working on for years. It has been 
written into, I think, the law at least 8 times, into 
appropriations and authorization bills. And we have worked in a 
bipartisan way to make sure that the President understands the 
will of the American people. And he--again, a signing statement 
on that, and now here on SADA.
    So it is quite amazing to me. And I wanted to just ask you, 
or Mr. Schwartz, or both of you: Mr. Schwartz, you mentioned 
that you believe that this had no force of law but was a 
statement of opinion, in terms of the signing statements.
    But I guess how do we ensure that the statements of opinion 
don't begin to subvert the law? And as I said in my opening 
statement, I think this is a very cynical attempt to undermine 
and subvert the law. But how do we make sure that doesn't 
happen, or do you think that is the reason for some signing 
statements, especially this one?
    Mr. Schwartz. Well, I think that is a very difficult 
question, Representative Lee. I can't speak for the 
Administration. I certainly would not attempt to speak for--
    The Chairman. But we might as well try. They refused.
    [Laughter]
    Mr. Schwartz. I will pass. But the only way to get true 
resolution of the legal issue, the constitutional issue, is 
litigation and a resolution by the courts. I think that would 
be unfortunate. I think that is unnecessary. And I think 
perhaps that is one of the reasons that the Administration is 
not here today defending their legal position. In my view, the 
position is indefensible.
    What you are really asking is: How can we protect against 
the practical--not the legal so much, but the practical--
consequences, if any, of the signing statement? I don't have 
the answer to that. I am not sure that the ABA task force has 
the answer to that, although the ABA task force has 
recommendations. And perhaps Judge Wald will speak about that.
    I do think that proceedings like these, statements by the 
Congress making clear that the President's view of the 
constitutionality, or purported view of the constitutional 
issues, is not the view of Congress and not the view of the 
House and not the view of the committee with respect to these 
constitutional issues, may help.
    But ultimately, in the case of SADA, I believe that the 
constitutional analysis sort of will stand on its own and 
should stand on its own. And that is why I am hopeful and I am 
confident that States and local governments considering 
divestment measures who might be deterred by the President's 
signing statement will look at the analysis, and it will be 
sufficiently clear to them that the President is wrong. And if 
they have any questions, I am happy to help explain it.
    Judge Wald. I certainly agree with my colleague here that, 
as Learned Hand once said, litigation is to be eschewed at all 
costs if possible. However, I do think--I am sure that the 
members of the committee are aware that there are several 
pending bills in both houses--I don't know how far they have 
gone along--which would allow the Congress to litigate the 
signing statement itself before the President has attempted to 
carry it out in any way. How far they will go and whether or 
not the courts will say that they in turn are constitutional as 
presenting a case in controversy remains to be seen.
    I do agree that one of the really tricky and unfortunate 
things about the signing statement is that when the President, 
as the chief executive, says something and says, this is a 
terrible law; I signed it, but it is unconstitutional and I am 
not going to enforce it, that does send a message down through 
the bureaucracy and through the executive officials. And that 
is really the unfortunate thing about signing statements.
    So the only way to combat that short of getting actually a 
court to say no, it is constitutional is, I think, through the 
reinforcement you suggested of your own resolutions, perhaps 
many of the States, such as the prior witness, reaffirming 
their belief that Congress has laid down the law. And I might 
say that this signing statement, as with most of the other 
constitutionally based signing statements, is an attempt by the 
executive to empower itself in those areas to pick and choose, 
cherry pick in a law, when they will enforce it, when they will 
not, and not to tell you about that beforehand.
    I think that goes against certainly the spirit as well as 
the letter of the Constitution because this has arisen, as you 
well know, with the FISA legislation, with several other pieces 
of legislation that Congress passes where the executive says, 
``Ah-hah, you can pass a law, but I have this residual power 
back there. So I will decide when to enforce it or not, and I 
won't tell you ahead of time when that is likely to be.''
    So I think that this current experience with 800 of these 
in two terms should galvanize both the legal profession, the 
States in this case and Congress itself, to reinforce their 
belief that is not the way the Founding Fathers meant to run 
the government under the Constitution.
    The Chairman. Thank you very much. What you were saying, 
Judge Wald and Mr. Schwartz, in your answers completely 
summarizes. That is exactly where we are. We didn't have this 
hearing idly. We had it because we are worried about the 
signing statement's impact because we are talking here about 
encouraging people and not discouraging people. And it may be 
our move.
    The gentleman from Alabama.
    Mr. Bachus. Thank you. This question is for the whole 
panel. There was a Reuters article yesterday that OFAC, Office 
of Foreign Assets Control, had announced they are going to 
institute civil actions against many companies they say have 
breached U.S. sanctions against doing business with the 
Sudanese government. And they are going to be able to impose 
fines up to $2 million. Prior to the legislation, I think the 
limit was $50,000.
    I have two questions. Number one, do you think that will be 
an effective tool against companies doing business with Sudan?
    Well, and the second one you can comment at the same time. 
It is my impression that the United States has really been in a 
leadership role of applying sanctions. I know other countries 
have been aggressive, too. And then other countries have not 
been at all, including China. But how do you see number one, 
OFAC's actions, as being a positive? And number two, how is the 
rest of the world responding to the genocide?
    Mr. Caprio. I could respond to that as chair of a fund, an 
institutional investor. The more exposure that is given to the 
entities that are doing business in the Sudan, the better. 
Right now the legislation that we passed in our State and the 
Federal legislation is going after the worst offenders.
    But if we can highlight across the board companies that are 
materially doing business there, maybe not to the level of some 
of the goliath multinational entities, but now those entities 
will shift from--the entities that you are citing will shift 
now into a different category that will allow institutions like 
us to then take action. So I welcome the scrutiny that they are 
going to receive.
    Mr. Bachus. And I didn't know if the panel was aware of 
OFAC's actions. Treasury has actually taken action. I hadn't 
seen any encouragement or participation of the State 
Department. But it seems almost as if even the two departments 
of the executive branch are going in two different directions.
    But are there any other comments?
    Mr. Schwartz. I would just make two points, Ranking Member 
Bachus. One is that the genocide obviously is an extraordinary 
horror that requires extraordinary measures, as I understand 
it. The Sudan Accountability and Divestment Act was not 
intended to be a replacement for existing Federal sanctions but 
a supplement to it. So any enforcement of sanctions and 
ratcheting up of sanctions is a positive development.
    Secondly, although this is not my area of expertise, I do 
know that my client, the Sudan Divestment Task Force, has been 
very active in moving its efforts overseas as well, or I should 
say expanding its efforts overseas. And there is a lot of work 
going on in Europe now.
    I would say they are probably behind where we are in the 
United States in terms of the divestment movement. But the 
divestment movement is ratcheting up and moving with our 
European allies. As well, there have been statements made by, I 
believe, the European parliament in the last year supporting 
targeted divestment. And so it does need to be a worldwide 
effort.
    Mr. Fowler. If I could just add a couple of things to that. 
I think as important as divestment is, and it is very 
important, it has got to be part of concerted economic pressure 
against the government of Sudan. And sanctions are one part of 
that. So vigorous enforcement of the unilateral sanctions that 
the United States already has announced is very, very 
important. And civil actions would be part of that.
    The second thing that I would want to say is that, as you 
point out, other countries have lagged behind the United 
States. And that is one of the things that is so negative about 
the signing statement, as I mentioned in my opening remarks, is 
the ambiguous signal that it sends to the rest of the world for 
the President to sign the legislation and then cast doubt on it 
at the same time.
    And the irony of it is, and my friend Adam Sterling, who is 
here behind me from the Sudan Divestment Task Force, has said 
this many times, is that before this legislation was passed, 
the Administration never suggested it was going to act against 
States or municipalities for divesting. So it is implausible to 
think that they will do it now. And in that sense, the signing 
statement is unnecessary damage to the whole cause.
    Then the final point I would make, which picks up on what 
Paul just said, is that internationally, there is a growing 
movement. More diplomacy is needed by the United States. But in 
terms of civil society, the Save Darfur Coalition and other 
groups here in the United States are working with partners in 
other countries to bring more pressure to bear on their 
governments. And that is going to be a very, very important 
part of the effort going forward.
    Judge Wald. The only additional comment I would make is 
that I think the financial is going to be increasingly 
important because according to what I hear and read in the 
papers, the U.N. attempt to set up the military force, a 
multinational military force, has faltered.
    Here the Americans have been better than most of the other 
countries. They have actually been willing to contribute and 
have contributed, not only manpower but equipment. But it has 
been a very slow process trying to get the other countries to 
contribute the helicopters or any equipment.
    So it may be that the burden, at least for a while, is 
going to lie on the financial end.
    Mr. Bachus. Thank you.
    The Chairman. I am going to call on my colleague, Mr. 
Green. But let me say I appreciate the gentleman's calling our 
attention to this article. I asked for a copy of the article. 
It is just an interesting timing issue here.
    ``U.S. Prepares to Act Against Sanction Busters.'' And this 
is an announcement that they plan to take some action in a 
month or two. I am sure they do. I am also sure that the fact 
that they now decided in a month or two was not entirely 
unrelated to the fact that we are here this morning.
    So I welcome that, and maybe we will have some more 
hearings, and maybe they will do more things. But it is clear 
as you read this that they are waiting for the regs, and in a 
month or two they are going to do some things.
    The gentleman from Texas.
    Mr. Green. Thank you, Mr. Chairman. I, of course, thank you 
and the ranking member for having this hearing.
    And I would like to make it as clear as possible, 
conspicuously so: I do not question the motives of the 
President. I think that people with the best of intentions can 
do bad things. I don't think that this was done with malice 
aforethought. But I do know this: If a person pulls out a gun 
and he kills me, whether it is by accident or design, I am 
still dead.
    We are dealing with life and death in Sudan. Because you 
have the right to do it doesn't mean that it is the right thing 
to do. It was morally wrong. Whether it was legally right is 
debatable. It was morally wrong for the President to obfuscate 
this issue with this signing statement when lives are at risk.
    Constitutional scholars can debate these issues ad 
infinitum. But the moral question is what I contend the 
President will have to answer for, the morality of, at a time 
of death, when people--I have been to Sudan--when people are 
literally living on the ground in villages where they don't 
have water, where they don't have the necessary cover from the 
elements, and where people are being raped--it is morally wrong 
for the President to do this.
    And I stand by what I said. He really is not going to be 
judged kindly by history. And I appreciate all those who have 
contrary views, and their friendship is still valued. I still 
love the President, as a matter of fact. He is a friend. This 
will not change how I feel about him. It will change how I feel 
about what he has done here.
    I condemn the actions, not the man. His actions are going 
to create a circumstance that we need not have to deal with. 
And I yield back the balance of my time.
    The Chairman. I thank the gentleman. We don't know whether 
it will interfere with the way he feels about the gentleman, 
but that is the nature of this business.
    I am going to take some more time here. I appreciate very 
much this testimony. I have two sets of questions. One, of 
course, deals with the specificity of the impact of the signing 
statement on this cause, and then on the broader constitutional 
question.
    Let me say, in furtherance toward what the gentleman said, 
I do not believe that this indicates any less interest in the 
Administration's view in trying to combat the genocide, taken 
by itself. And indeed, the fact that we got a statement today 
from the Treasury Department, from OFAC, announcing that in a 
month or two they are going to take further action, without 
question that was generated by the need to offset any negative 
impression that this hearing would cause.
    And I accept that fact. They continue to care a lot about 
that. The problem is the order of priorities. This is an 
Administration that cares more about enhancing executive power 
than about the specific issue. And the problem is, judged in 
the abstract, yes. They are very concerned about the genocide. 
But when it comes to protecting the supremacy not of the 
Federal Government but of the presidency, then everything else 
gets subordinated. That is what is involved here.
    And if you read this, it is clear. And this goes to the 
point I think Mr. Fowler made that, well, why didn't they 
object when some States did this on their own? Because that did 
not codify what they saw as a threat to executive power in the 
United States. It is when we recognize that--and of course, 
States on their own can't immunize themselves from Federal 
lawsuits.
    And again, I have to stress the irony of some of the 
Administration papers here saying, oh, but you don't want to 
take the rights away from the poor investors. I will tell you 
because this committee has jurisdiction over that, in the time 
that I have been ranking member and chairman, this is the first 
time that I can remember this Administration asserting any 
concern for anything that might diminish investor rights to 
protect themselves. They have been on the opposite side of 
every such issue.
    But what is clear is--and Mr. Fowler's point makes it very 
well. They don't object to the States doing that on their own 
because no real harm is being done. But they interfere with 
this bill's effectiveness because the passage by this Act--and 
it is not--and I think this is the other important point I want 
to make, and Mr. Fowler's point,I think, carries this out.
    Their arguments conflate the federalism argument versus the 
executive versus legislative argument. Judge Wald correctly 
pointed out that they are using the unitary executive argument 
really to argue against Congress, not within the 
Administration.
    If this bill gave the head of OFAC the statutory power to 
make these decisions, then there would be a unitary executive 
argument. It would be an argument that we had lodged power in 
an inferior officer, and that undercut the President's ability 
to make that decision.
    But obviously we don't do that. So I think this is very 
clear. This is concern about presidential power because--and 
this notion that it violates the supremacy clause is just mind-
boggling. How can it violate the supremacy clause, which 
protects the supremacy of laws passed by the United States, 
when we have passed a law and when we have done this 
delegation? So we are clearly talking here about executive 
versus legislative. This is what is at stake. And that sadly 
has trumped the genocide issue.
    So let me just ask again to Mr. Fowler and Mr. Caprio. And 
again, I want to stress to people, this is no minor quibble. As 
we in our frustration as a Nation search for ways more 
effectively to try to save the innocent victims in Darfur from 
murder and torture in huge numbers, we listen to the people who 
have been in the forefront, the people in the coalition.
    Mr. Fowler, am I correct that this was as high a priority 
that your group had for Congress to act on this past year?
    Mr. Fowler. Well, yes. For congressional action, SADA was a 
priority.
    The Chairman. Yes. For us. Right. Obviously, there are 
other things the executive can do.
    But in fact, that underscores the point. This still leaves 
the executive in major control of this operation. This does not 
empower us. We don't have delusions of grandeur here that by 
passing this Act, we have suddenly run rushing to the rescue. 
We wish we could. So it is a fairly minor addition to the 
arsenal, but it was the best we could do.
    And let me just ask again to Mr. Caprio, to make it 
explicit. You have talked about this. Clearly, when--well, let 
me ask: When you worked with your colleagues in the Rhode 
Island legislature to pass the divestment bill, what kind of 
opposition did you get?
    Mr. Caprio. Minimal if any opposition. It was unanimously 
passed on both sides of the legislature and signed by the 
governor.
    The Chairman. Were there any arguments aimed at you? Did 
you hear from anybody who said, well, you have these fiduciary 
responsibilities?
    Mr. Caprio. No. We had widespread support in the community 
and--
    The Chairman. Well, that is encouraging. We have heard from 
others, though, for instance in the mutual fund area, that they 
are concerned. And Mr. Schwartz and Judge Wald summarized this 
well.
    The purpose of this bill is to encourage people not to be 
intimidated by the threat of lawsuit. That is all the bill 
does. And so when the Administration asserts its right to 
undercut it, it undercuts the heart of the bill, which is the 
protection against lawsuits.
    And as I said, I think it is clear that it is this 
Administration's relentless insistence on enhancing executive 
power beyond any conception that has previously been here. And 
Judge Wald is right. She said the unitary theory of the 
executive.
    I was debating on the Floor when we were talking about 
whether or not, if Congress passed a law requiring search 
warrants for wiretaps of Americans, whether that would be 
binding on the President. I must say, when I first came here, 
the notion that we would be debating whether an act of Congress 
signed into law was binding on the President seemed kind of 
remote.
    And I was told by one of my Republican colleagues that it 
did violate the Constitution, our effort to bind the President, 
because it violated the unitary theory of the executive. And I 
thought I knew the Constitution pretty well, but I couldn't 
remember what that was.
    So I asked. I asked him, well, where in the Constitution is 
this unitary executive? He didn't know. They had not briefed 
him appropriately. And they were all whispering in his ear, 
which never helps when you are trying to say something. They 
are whispering in your ear. You better know it before then.
    So I was standing at the podium, and I said to a page, 
would you bring me a copy of the Constitution? We have it in 
Jefferson's manual. And I looked it up, and there it was. And 
it says, the executive powers of the United States shall be 
lodged in the President. That is from which all this comes.
    And as Judge Wald made clear, that has no logical, 
conceivable argument about the right of the President vis-a-vis 
anybody else--vis-a-vis the States, vis-a-vis the Congress, or 
the courts.
    And so out of that very common, very sort of commonplace, 
the executive powers shall be lodged in the President, we get 
this very broad assertion of power. And now we see what it 
means. It is powerful enough, their insistence on preserving 
this and diminishing the power of the Congress. And that is 
what this is aimed at, not so much the States. They want to 
diminish the powers of the Congress.
    So let me ask our two legal representatives here, Judge 
Wald and Mr. Schwartz: As you read this, am I correct? They 
make a federalism argument, but they also make a separation of 
powers argument. My view is that the federalism argument is not 
the real argument, that in fact that collapses.
    And in part I guess what they do is they can make a 
federalism argument only because they identify the Federal 
Government with the president, so that--I mean, if the Federal 
Government consists of, for the law-making powers, the 
President and Congress together, there is no federalism 
argument because it is an act of Congress.
    But they convert their separation of powers into a 
federalism argument by the strength of their separation of 
powers argument. The Federal Government is, for these purposes, 
only the President, and therefore it becomes the supremacy 
clause.
    I would ask you to comment on that. Judge?
    Judge Wald. I agree with your analysis. And I think even if 
you look at--parse the wording of the signing statement, the 
last couple of lines, it says, ``However, as the Constitution 
vests the exclusive authority to conduct foreign relations with 
the Federal Government.'' That is--the Federal Government 
consists of three branches, but relevant here are the two 
political branches, the President and the Congress.
    Then it jumps logically and says, ``Because foreign 
relations is with the Federal Government''--that is the 
president and Congress--``the Executive Branch shall construe 
and enforce this legislation so it doesn't conflict with that 
authority.''
    So it jumps from the fact that the power is in the 
Constitution in two branches to one branch shall decide, shall 
make the decision as to whether or not there is going to be any 
conflict, both as to federalism and as to the inter-branch 
between Congress and the President.
    So it doesn't logically follow. It is mixed there. But I 
think the intent is clear. I think you are right. This is a 
situation where it is another in 801 statements about the 
plenary--almost plenary power of the executive.
    And just one last thought. Perhaps one reason why you are 
not getting any official representative at this hearing and why 
they would like to talk to you privately reinforces the notion 
that you would be doing the right thing by keeping this front 
and center publicly, both through hearings and through 
resolution because I think it is probably going to be 
embarrassing for the Administration to have to come forth and 
oppose this publicly with reasons, none of which we really have 
gotten so far.
    I think they probably are well aware of the sentiments. 
Perhaps it will make them rethink, as Representative Green 
suggests. But if not, it will at least put it out front and 
center, and there certainly will be public reaction to the fact 
that they won't debate this out on the merits, whatever their 
position is.
    The Chairman. Thank you. I appreciate that analysis of the 
signing statement. That was what I was getting at. I hadn't 
made that particular connection, but you are very clear.
    The signing statement begins by asserting Federal power, 
and then sub silentio converts that into--
    Judge Wald. Into executive.
    The Chairman. --the President. So the federalism argument 
falls away. It is a presidential supremacy argument. And as 
somebody mentioned, when we talk about foreign commerce, that 
is one where Congress in fact is given constitutional powers.
    Judge Wald. Preeminently. Right.
    The Chairman. So even the constitutional justification on 
foreign policy can't bear out.
    Mr. Schwartz?
    Mr. Schwartz. Yes. I would just add that I think--I 
certainly agree with the chairman and Judge Wald on this point. 
I think another place that we see the point is in the Justice 
Department's October 26, 2007, letter to the Senate, at page 3. 
This is really the letter where the Administration's legal 
argument is set forth in somewhat greater detail.
    The Chairman. But actually, if you notice, it is addressed 
to the Honorable Richard Cheney. I think they persuaded him.
    Mr. Schwartz. I understand. It says, ``Dear Mr. 
President,'' that as well, President of the Senate.
    But it goes on to say at page 3--and this I view as to be 
the heart of the Administration's argument--Section 3 of the 
bill, which is the State divestment authorization, by its 
terms, the Department of Justice concedes, ``could remove the 
threat of the direct statutory or Article I foreign commerce 
clause preemption on which the Supreme Court relied in the 
Crosby case.''
    So that really goes to the point that you were making, Mr. 
Chairman, with respect to ordinary preemption under the 
supremacy clause. I think you noted that argument was made by 
the State Department that there is a supremacy clause problem 
here. This statement by the Justice Department acknowledges 
that authorization through an act of Congress logically removes 
any supremacy clause or preemption.
    The Chairman. I am glad you called attention to that 
because then the following--
    Mr. Schwartz. Then the next sentence is really where the 
rubber meets the road.
    The Chairman. Yes. You want to read that one, too?
    Mr. Schwartz. Sure. ``But it is by no means clear that 
Section 3 of the bill would, or that Federal legislation could, 
remove any Federal preemptive force that flows from the 
Constitution's grant to the President of certain foreign 
affairs powers under Article II.''
    So that is really what this argument is all about. And I 
submit that there are numerous Supreme Court cases, I count the 
Steel Seizure cases, in which the Supreme Court held that 
President Truman, notwithstanding his Article II powers as 
commander in chief--
    The Chairman. During wartime, in fact, the most powerful.
    Mr. Schwartz. Correct--could not trump a Federal statute 
that was enacted pursuant to--
    The Chairman. What I also appreciate, which I think you 
mentioned, the foreign commerce power is specifically given to 
Congress. And we are talking here about commerce. We are not 
talking about foreign relations in the natural sense. We are 
not telling them whether they can or can't send an ambassador 
to Sudan, or how to vote in the U.N. It is regulation of that.
    So this is just--I appreciate both of you pointing these 
things out. It becomes very clear. This is an insistence on 
enhancing executive power and diminishing Congress posing as 
federalism when there is no federalism.
    And I guess the final question--because they--it is 
interesting that the State Department cites the supremacy 
clause and Justice cites some of the other--basically what we 
gave--maybe I am a little bit reassured. It is State that gets 
the Constitution blatantly wrong and Justice that gets the 
foreign policy blatantly wrong. So at least they make their 
major errors in the other area.
    But here is one statement from Justice. And I think it is a 
red herring, and I would ask the two lawyers to respond to 
this. It is a reference to--oh, I had it and lost it again. 
They worry that a State might pass a preemption statute that 
explicitly conflicts with the Federal statute. If that 
happened, what would be the clear result? Judge?
    Mr. Schwartz. If--
    Judge Wald. Go ahead.
    The Chairman. If a State were to pass a divestment statute 
that specifically contradicted a Federal law, what would 
happen?
    Mr. Schwartz. I believe it would be unconstitutional under 
the supremacy clause.
    Judge Wald. And a court would so hold it, probably.
    The Chairman. Yes. That is the red herring. I mean, one 
thing they say is, well, suppose under this bill a State passed 
a law that conflicted. And the answer is, the supremacy clause 
wins and it is out there. So it is clear this is just about the 
executive.
    Let me just summarize. I was very pleased by my colleague 
from Alabama, who has been very strong on this. And actually, 
the gentlewoman from California, Ms. Waters, and I joined him 
and the former chairman of this committee, Mr. Leach, in 
frankly opposing the Clinton Administration's Treasury 
Department in pressing for debt relief when they thought it was 
imprudent, particularly for Africa. He is, I think, returning 
that consistency to principle here.
    We really do want to say to the Administration, and I know 
that they are not talking but they are listening: The fight 
over executive power can really be fought elsewhere. Please, is 
my plea to the President, do not undercut our effort here to 
increase our ability to protect the people of Darfur by 
dragging this bill into that battle.
    This is little enough to do. Every one of us is anguished 
by our inability to do more. But to undercut whatever this bill 
can do by dragging it into this fight over executive versus 
congressional power is unseemly. It is simply a refusal to 
exercise some moral discretion.
    There are plenty of areas in which we can fight between us, 
the Executive Branch and the Legislative Branch, about power. 
Let's not let the poor people, the victims of murder in Darfur, 
be dragged into this battle.
    And I know my colleague from Alabama intends to have some 
further conversations with the White House. If necessary, I am 
in favor of a resolution. Let every member of the House stand 
up, and our friends from the Save Darfur Coalition will be 
there, to say: Do not undercut this bill.
    But that oughtn't to be necessary. I don't think the 
Administration was thinking primarily of undercutting the 
Darfur situation. I think they ignored the fact that it could 
do it. A clarification that they in no way intended to vitiate 
the bill could be very helpful, and it could avoid further 
action. But if we don't get that, then there will be further 
action.
    I thank the panel. This has been very useful. And it is not 
the last word on this subject, but I hope it is the next to 
last word because I hope the last word will be from the 
Administration clearing the thing up.
    The hearing is adjourned. And of course, anyone who wishes 
to submit--any of the members or any of the members of the 
panel who wish to submit further information may do so.
    [Whereupon, at 12:04 p.m., the hearing was adjourned.]


                            A P P E N D I X



                            February 8, 2008


[GRAPHIC] [TIFF OMITTED] T1178.001

[GRAPHIC] [TIFF OMITTED] T1178.002

[GRAPHIC] [TIFF OMITTED] T1178.003

[GRAPHIC] [TIFF OMITTED] T1178.004

[GRAPHIC] [TIFF OMITTED] T1178.005

[GRAPHIC] [TIFF OMITTED] T1178.006

[GRAPHIC] [TIFF OMITTED] T1178.007

[GRAPHIC] [TIFF OMITTED] T1178.008

[GRAPHIC] [TIFF OMITTED] T1178.009

[GRAPHIC] [TIFF OMITTED] T1178.010

[GRAPHIC] [TIFF OMITTED] T1178.011

[GRAPHIC] [TIFF OMITTED] T1178.012

[GRAPHIC] [TIFF OMITTED] T1178.013

[GRAPHIC] [TIFF OMITTED] T1178.014

[GRAPHIC] [TIFF OMITTED] T1178.015

[GRAPHIC] [TIFF OMITTED] T1178.016

[GRAPHIC] [TIFF OMITTED] T1178.017

[GRAPHIC] [TIFF OMITTED] T1178.018

[GRAPHIC] [TIFF OMITTED] T1178.019

[GRAPHIC] [TIFF OMITTED] T1178.020

[GRAPHIC] [TIFF OMITTED] T1178.021

[GRAPHIC] [TIFF OMITTED] T1178.022

[GRAPHIC] [TIFF OMITTED] T1178.023

[GRAPHIC] [TIFF OMITTED] T1178.024

[GRAPHIC] [TIFF OMITTED] T1178.025

[GRAPHIC] [TIFF OMITTED] T1178.026

[GRAPHIC] [TIFF OMITTED] T1178.027

[GRAPHIC] [TIFF OMITTED] T1178.028

[GRAPHIC] [TIFF OMITTED] T1178.029

[GRAPHIC] [TIFF OMITTED] T1178.030

[GRAPHIC] [TIFF OMITTED] T1178.031

[GRAPHIC] [TIFF OMITTED] T1178.032

[GRAPHIC] [TIFF OMITTED] T1178.033

[GRAPHIC] [TIFF OMITTED] T1178.034

[GRAPHIC] [TIFF OMITTED] T1178.035

[GRAPHIC] [TIFF OMITTED] T1178.036

[GRAPHIC] [TIFF OMITTED] T1178.037

[GRAPHIC] [TIFF OMITTED] T1178.038

[GRAPHIC] [TIFF OMITTED] T1178.039

[GRAPHIC] [TIFF OMITTED] T1178.042

[GRAPHIC] [TIFF OMITTED] T1178.043

[GRAPHIC] [TIFF OMITTED] T1178.044

[GRAPHIC] [TIFF OMITTED] T1178.045

[GRAPHIC] [TIFF OMITTED] T1178.046

