For Immediate Release
Office of the Press Secretary
November 25, 2002
Statement by the President
Today I have signed into law H.R. 5005, the "Homeland Security Act of 2002."
The Act restructures and strengthens the executive branch of
the Federal Government to better meet the threat to our homeland posed
by terrorism. In establishing a new Department of Homeland Security,
the Act for the first time creates a Federal department whose primary
mission will be to help prevent, protect against, and respond to acts
of terrorism on our soil.
Section 103(a)(8) of the Act provides for 12 Assistant Secretary
positions without defined titles or duties in the new Department that
are to be "appointed by the President, by and with the advice and
consent of the Senate." Sections 201(b)(1) and 201(b)(2) of the Act
provide for two Assistant Secretary positions with defined titles and
duties that are to be "appointed by the President." The text and
structure of the Act make clear that these two presidentially appointed
Assistant Secretary positions were created in addition to the 12
unspecified Assistant Secretary positions, and the executive branch
shall construe the relevant provisions accordingly.
With respect to section 201(h), upon the recommendations of the
Secretary of Homeland Security, the Director of Central Intelligence,
the Secretary of Defense, the Assistant to the President for National
Security Affairs, and other appropriate executive branch officials, I
will determine which elements of the Department of Homeland Security
are concerned with the analysis of foreign intelligence information.
Section 214(a)(1)(D)(ii) provides that voluntarily shared critical
infrastructure information shall not be used or disclosed by any
Federal employee without the written consent of the person or entity
submitting the information, except when disclosure of the information
would be to the Congress or the Comptroller General. The executive
branch does not construe this provision to impose any independent or
affirmative requirement to share such information with the Congress or
the Comptroller General and shall construe it in any event in a manner
consistent with the constitutional authorities of the President to
supervise the unitary executive branch and to withhold information the
disclosure of which could impair foreign relations, the national
security, the deliberative processes of the Executive, or the
performance of the Executive's constitutional duties.
Section 231 establishes an "Office of Science and Technology"
within the National Institute of Justice, and under the general
authority of the Assistant Attorney General for the Office of Justice
Programs. According to subsection 231(b), "[t]he Office shall be
headed by a Director, who shall be an individual appointed based on
approval by the Office of Personnel Management of the executive
qualifications of the individual." The executive branch will construe
this provision in a manner consistent with the requirements of the
Appointments Clause of Article II of the Constitution. Because the
Director would exercise significant governmental authority and thus be
an "officer" whose appointment must be made in conformity with the
Appointments Clause, I hereby direct the Attorney General to appoint
the Director.
Section 232(e) of the Act provides that the Director of the Office
of Science and Technology within the Department of Justice shall have
sole authority over decisions relating to publications issued by the
Office. The executive branch shall construe this provision in a manner
consistent with the constitutional authorities of the President to
supervise the unitary executive branch.
Section 306(a) of the Act provides that research conducted by the
Department shall be unclassified "to the greatest extent practicable."
In addition, section 425 adds section 44901(d)(3) to title 49 of the
United States Code, requiring the submission of classified reports
concerning the screening of checked baggage for explosives in the
aviation system to certain committees of Congress. The executive
branch shall construe and carry out these provisions, as well as other
provisions of the Act, including those in title II of the Act, in a
manner consistent with the President's constitutional and statutory
authorities to control access to and protect classified information,
intelligence sources and methods, sensitive law enforcement
information, and information the disclosure of which could otherwise
harm the foreign relations or national security of the United States.
Section 311(h) of the Act provides for the preparation and
transmittal to the Congress of reports prepared by the Homeland
Security Science and Technology Advisory Committee. The executive
branch shall construe this provision in a manner consistent with the
constitutional authorities of the President to supervise the unitary
executive branch and to recommend for the consideration of the Congress
such measures as the President judges necessary and expedient.
Several sections of the Act, including section 414, 476, and
873(c), purport to require the submission of budget requests for the
new Department to the Congress and to require such requests to be in a
particular form. The executive branch shall construe this provision in
a manner consistent with the constitutional authority of the President
to recommend for the consideration of the Congress such measures as the
President judges necessary and expedient.
Section 452(c)(2) of the Act prohibits various officers of the
Department or the Office of Management and Budget from reviewing
reports and other material prepared by the Citizenship and Immigration
Services Ombudsman. The executive branch shall construe this section
in a manner consistent with the President's constitutional authority to
supervise the unitary executive branch.
Section 473(f) of the Act purports to require the Secretary of
Homeland Security or the Attorney General to comply with requests from
the General Accounting Office (GAO) for certain information in the
course of GAO preparation of reports on demonstration projects relating
to disciplinary action. The executive branch shall construe this
provision in a manner consistent with the constitutional authorities of
the President to supervise the unitary executive branch and to withhold
information the disclosure of which could impair foreign relations, the
national security, the deliberative processes of the Executive, or the
performance of the Executive's constitutional duties.
Provisions in the Act, including sections 418(b), 428(e)(7)(B),
460, 477(c)(2)(F), 882(c)(3), and 893(a) purport to require executive
branch officials to submit to the Congress plans for internal executive
branch activities or recommendations relating to legislation. The
executive branch shall construe such provisions in a manner consistent
with the President's constitutional authorities to supervise the
unitary executive branch and to recommend for the consideration of the
Congress such measures as the President judges necessary and
expedient.
Section 507 describes some of the functions of the Federal
Emergency Management Agency, specifically referencing "the functions
and authorities prescribed by the Robert T. Stafford Disaster Relief
and Emergency Assistance Act (42 U.S.C. 5121 et seq.)." Because
section 503(1) transfers all functions of the Federal Emergency
Management Agency to the Department of Homeland Security, including
those existing pursuant to laws other than the Stafford Act, the
executive branch shall not construe the specification of the Stafford
Act in section 507 as limiting in any way the transfer of the other
authorities currently belonging to the Federal Emergency Management
Agency.
Section 812(a) authorizes Inspectors General and their assistants
and agents to make criminal arrests without warrants for any Federal
felony if they have "reasonable grounds to believe" that the subject
committed or is committing the offense. Because the Supreme Court has
held that the standard of probable cause applies to all arrests,
regardless of circumstances, the grounds for making an arrest under
this standard are only "reasonable" if they include probable cause to
believe that the subject has committed or is committing a crime. The
Inspectors General, their assistants, and agents must accordingly have
probable cause before making an arrest pursuant to this section. The
authority to make criminal arrests and to exercise other law
enforcement authorities conveyed by this section is to be exercised in
accordance with guidelines promulgated by the Attorney General, as
provided by section 6(e)(4) of the Inspector General Act of 1978, as
added by section 812(a).
Section 873(b) describes conditions under which gifts or donations
of services or property of the Department may be accepted, used, or
disposed of by third parties. The executive branch shall construe this
provision in a manner consistent with existing legal authorities being
transferred to the Department of Homeland Security and shall not
construe it to effect an implied repeal of any such authority.
Section 878 provides that the Secretary of Homeland Security shall
appoint a senior official in the Department to assume primary
responsibility for certain counternarcotics efforts and to serve as the
United States Interdiction Coordinator for the Office of National Drug
Control Policy. In making this appointment, the Secretary of Homeland
Security will consult with and seek recommendations from the Director
of the Office of National Drug Control Policy.
Section 879 establishes an Office of International Affairs with
responsibilities to promote information and education exchange with
foreign nations with respect to best practices and technologies
relating to homeland security. This Office will carry out these
functions in close coordination with the Department of State and other
relevant Government agencies.
Section 886 recites a series of findings and provides the sense of
the Congress concerning aspects of section 1385 of title 18, United
States Code, commonly known as the Posse Comitatus Act. This provision does not purport to alter, modify,
or otherwise affect the Posse Comitatus Act or judicial interpretations
of that Act, and the executive branch shall construe this provision
accordingly.
Section 895 of the Act purports to amend Rule 6(e) of the Federal
Rules of Criminal Procedure by expanding the permissible scope of grand
jury information that may be shared by prosecutors. On April 29, 2002,
however, the Supreme Court proposed a set of amendments to Rule 6 that,
under section 2074 of title 28, are scheduled to take effect on
December 1, 2002. There is no indication that the Congress' different
amendments to Rule 6(e) were intended to reject the Supreme Court's
pending proposal, and my Administration will construe the Act so that
the Supreme Court's proposed amendments to Rule 6 will still go into
effect, without alteration, on December 1, 2002. As a result of those
intervening amendments, when section 895 becomes effective in 60 days,
its directions for amendment will no longer correspond to the
underlying text of Rule 6(e). In the next Congress, technical
amendments will be necessary to add the changes in this section to
those already accomplished by the Supreme Court pursuant to sections
2072 and 2074 of title 28.
Section 1313(a)(2) provides authority to the Administrative Office
of the United States Courts to establish a program for providing
voluntary separation incentive payments to "individuals serving in the
judicial branch." Based upon an understanding of the intent of this
provision, as well as appropriate respect for principles of judicial
independence, the executive branch shall construe "individuals serving
in the judicial branch" to exclude those individuals serving as members
of the Federal judiciary.
Section 1331 adds an amended section 4107(b)(1)(A) to title 5,
United States Code, which requires that, in exercising authority to
assign and fund academic degree training for certain Federal employees,
an agency "take into consideration the need to maintain a balanced
workforce in which women, members of racial and ethnic minority groups,
and persons with disabilities are appropriately represented in
Government service." The executive branch shall construe this
provision in a manner consistent with the Equal Protection component of
the Due Process Clause of the Fifth Amendment to the Constitution.
GEORGE W. BUSH
THE WHITE HOUSE,
November 25, 2002.
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