Bush move on Darfur law criticized

Critics say he undercuts law on divestment; President cites his policy role

Email|Print| Text size + By Charlie Savage
Globe Staff / February 9, 2008

WASHINGTON - Lawmakers and human rights activists sharply criticized President Bush yesterday for issuing a signing statement that they said has undermined congressional efforts to pressure the Sudanese government to crack down on rebels responsible for the genocide in Darfur.

At a House Financial Services Committee hearing, members of both parties denounced a signing statement that Bush issued Dec. 31.

The statement challenged the constitutionality of the Sudan Accountability and Divestment Act, which makes it easier for states and municipalities to divest their pension funds from companies that do business with Sudan.

"Apparently we have an admnistration 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 up ahead of commitment to ending the genocide in Darfur," said the committee chairman, Representative Barney Frank, Democrat of Massachusetts.

The act authorizes state and local efforts to divest from companies with certain business ties to Sudan, such as in power production, mining, oil drilling, and the production of military equipment. The act also forbids investors from suing a mutual fund's managers for breach of fiduciary duty if divesting from such companies causes the fund to earn less money.

The Bush administration opposed the legislation, telling Congress that while the White House shared its concern about Darfur, the legislation would undercut the president's constitutional powers over foreign affairs. Congress passed the bill anyway, by unanimous votes in both chambers.

Bush signed the bill into law and then asserted in a signing statement that the act was unconstitutional.

Witnesses at the hearing yesterday said that Bush's signing statement had undercut the purpose of the law, which was to reassure local governments and fund managers that they would not face lawsuits if they divested from foreign companies with ties to Sudan. Under existing sanctions, US-based companies are already barred from doing business with certain Sudanese companies.

The act was crafted to avoid what happened to a 1996 Massachusetts law barring state entities from doing business with companies with ties to Burma. Several firms sued Massachusetts, and the Clinton administration sided with the businesses, saying that the Commonwealth had no role in foreign policy. In 2000, the Supreme Court struck down the Massachusetts law.

Paul Schwartz, a lawyer for the Sudan Divestment Task Force, said that there are campaigns in at least 23 states, including New Hampshire, to get them to enact Sudan divestment measures. Another 22 states have passed such laws, including Massachusetts, Vermont, Maine, Rhode Island, and Connecticut, according to the task force's website.

"The president's signing statement could have the practical effect of raising doubt in the mind of some state and local legislators who are considering whether to enact Sudan divestment measures," Schwartz said.

The signing statement could also make companies reluctant to divest, Frank said. He said he has spoken with some fund managers who professed to be willing to divest from companies with ties to Sudan, but said they had a legal duty to prioritize profits. Frank said that the act was supposed to take away that excuse, but that such managers can now point to Bush's signing statement and say they still cannot divest.

The Bush administration declined Frank's invitation to send witnesses to the hearing to explain its side of the issue. Frank said State and Justice Department officials told him to talk to the White House, since it put out the signing statement. But White House Counsel Fred Fielding sent Frank a letter declining to testify about his legal advice to the president.

In letters to the Senate last fall, the administration had urged lawmakers not to pass the bill because it could encroach on "the Constitution's grant to the president of certain foreign affairs powers." In a separate letter, the administration also said that "such [legislation] would set a dangerous precedent, making it easier to pass similar legislation in other cases."

White House spokesman Tony Fratto said in an interview yesterday that the administration's primary concern is that the act could make it difficult for Bush or future presidents to alter US policy toward Sudan, such as by lifting sanctions as a reward if Sudan stops the ethnic cleansing.

"The president has the constitutional authority to make foreign policy," Fratto said. "If he then has to go back to state and local governments to, in essence, negotiate their compliance with the foreign policy he's set, that gets you into constitutional friction."

But Frank and several witnesses - including Patricia Wald, the former chief judge of the US Court of Appeals for the District of Columbia - criticized Bush's legal theories.

They pointed out that the Constitution explicitly gives Congress the power to "regulate commerce with foreign nations," arguing that there was nothing improper about the Sudan act.

Bush has frequently used signing statements to advance aggressive theories about executive power. He has challenged more laws in the past seven years than all previous presidents combined.

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