For Immediate Release
Office of the Press Secretary
October 1, 2003
Statement by the President
Today, I have signed into law H.R. 2658, the "Department of Defense
Appropriations Act, 2004."
Sections 8007 and 8103 of the Act prohibit the use of funds to
initiate a special access program or to initiate a new start program,
unless the congressional defense committees receive advance notice.
The Supreme Court of the United States has stated that the President's
authority to classify and control access to information bearing on the
national security flows from the Constitution and does not depend upon
a legislative grant of authority. Although the advance notice
contemplated by sections 8007 and 8103 can be provided in most
situations as a matter of comity, situations may arise, especially in
wartime, in which the President must act promptly under his
constitutional grants of executive power and authority as Commander in
Chief of the Armed Forces while protecting certain extraordinarily
sensitive national security information. The executive branch shall
construe sections 8007 and 8103 in a manner consistent with the
constitutional authority of the President.
Section 8065 of the Act provides that, notwithstanding any other
provision of law, no funds available to the Department of Defense for
fiscal year 2004 may be used to transfer defense articles or services,
other than intelligence services, to another nation or an international
organization for international peacekeeping, peace enforcement, or
humanitarian assistance operations, until 15 days after the executive
branch notifies six committees of the Congress of the planned
transfer. To the extent that protection of the U.S. Armed Forces
deployed for international peacekeeping, peace enforce-ment, or
humanitarian assistance operations might require action of a kind
covered by section 8065 sooner than 15 days after notification, the
executive branch shall construe section 8065 in a manner consistent
with the President's constitutional authority as Commander in Chief of
the Armed Forces.
A proviso in the Act's appropriation for "Operation and
Maintenance, Defense-Wide" prohibits implementation of and purports to
prohibit planning for consolidation of certain offices within the
Department of Defense. Also, sections 8010(b), 8041(b), and 8115
purport to specify the content of a portion of a future budget request
to the Congress for the Department of Defense. The executive branch
shall construe these provisions relating to planning and making of
budget recommendations in a manner consistent with the President's
constitutional authority to require the opinions of the heads of
departments and to recommend for congressional consideration such
measures as the President shall judge necessary and expedient.
Section 8005 of the Act relating to requests to congressional
committees for reprogramming of funds shall be construed as calling
solely for notification, as any other construction would be
inconsistent with the principles enunciated by the Supreme Court in INS
v. Chadha.
A proviso within the appropriation for "Operation and Maintenance,
Air Force" earmarks an amount of funds for a grant to a college for the
purpose of funding minority aviation training, and section 8089 of the
Act provides that, in imple-menting a healthcare interagency
partnership under that section, Native Hawaiians shall have the status
of Native Americans who are eligible for healthcare services. The
executive branch shall implement the proviso and section 8089 in a
manner consistent with the requirement to afford equal protection of
the laws under the Due Process Clause of the Fifth Amendment to the
Constitution.
Sections 8082, 8091, 8117, and 8131 of the Act make clear that the
classified annex accompanies but is not incorporated as a part of the
Act, and therefore the classified annex does not meet the bicameralism
and presentment requirements specified by the Constitution for the
making of a law. Accordingly, the executive branch shall construe the
classified annex references in sections 8082, 8091, 8117, and 8131 as
advisory in effect. My Administration continues to discourage any
efforts to enact secret law as part of defense funding legislation and
encourages instead appropriate use of classified annexes to committee
reports and joint statements of managers that accompany the final
legislation.
GEORGE W. BUSH
THE WHITE HOUSE,
September 30, 2003.
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