Statement on Signing the Department of Defense Appropriations Act, 2005
Today I have signed into law H.R. 4613, the "Department of Defense Appropriations Act, 2005." The bill provides funds to pursue the war on terror, advance other United States interests around the globe, and support our Armed Forces.
Sections 8007, 8011, and 8106 of the Act prohibit the use of funds to initiate a special access program, a new overseas installation, or 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, 8011, and 8106 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, 8011, and 8106 in a manner consistent with the constitutional authority of the President.
Section 8064 of the Act provides that, notwithstanding any other provision of law, no funds available to the Department of Defense for FY 2005 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 6 committees of the Congress of the planned transfer. To the extent that protection of the U.S. Armed Forces deployed for international peacekeeping, peace enforcement, or humanitarian assistance operations might require action of a kind covered by section 8064 sooner than 15 days after notification, the executive branch shall construe section 8064 in a manner consistent with the President's constitutional authority as Commander in Chief.
A proviso in the Act's appropriation for "Operation and Maintenance, Defense-Wide" purports to prohibit planning for consolidation of certain offices within the Department of Defense. Also, sections 8010(b), 8036, 8041(b), 8110, and 8116 purport to specify the content of a portion of a future budget request to the Congress for the Department. 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 of the United States in INS v. Chadha.
A proviso within the appropriation for "Operation and Maintenance, Air Force" earmarks funds for a grant to a college for the purpose of funding minority aviation training, a proviso within the appropriation for "Operation and Maintenance, Defense-Wide" earmarks funds for a program for Asian American/Pacific Islander students, and sections 8014 and 8021 of the Act grant contracting-related exceptions or preferences to Native Hawaiian organizations. The executive branch shall implement the provisos and sections 8014 and 8021 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.
The executive branch shall construe section 8101 of the Act, which purports to prohibit alteration of command responsibility or permanent assignment of forces until 270 days after submission of a plan for such alteration to the congressional defense committees, as advisory, as any other construction would be inconsistent with the constitutional grant to the President of the authority of Commander in Chief. Also, the executive branch shall construe section 8124, relating to integration of foreign intelligence information, in a manner consistent with the President's constitutional authority as Commander in Chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch. Finally, the Executive Branch shall construe section 12001, which purports to assign the Secretary of Defense the duty to negotiate with a foreign country, in a manner consistent with the President's constitutional authority to conduct the Nation's foreign affairs, which includes the authority to determine who shall negotiate for the United States under the President's direction with a foreign country.
GEORGE W. BUSH
The White House, August 5, 2004.
NOTE: H.R. 4613, approved August 5, was assigned Public Law 108-287.
George W. Bush, Statement on Signing the Department of Defense Appropriations Act, 2005 Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/212129