Posts from September, 2006

Bush Uses Signing Statements to Leverage Power from Congress, CRS Says

The Bush Administration’s use of Presidential signing statements to assert objections to enacted legislation reflects an attempt to expand and consolidate Presidential authority at the expense of Congress, according to a new analysis (pdf) from the Congressional Research Service.

“It seems evident that the Bush signing statements are an integral part of the Administration’s efforts to further its broad view of presidential prerogatives and to assert functional and determinative control over all elements of the executive decisionmaking process,” the CRS study said.

“It appears that recent administrations, as made apparent by the voluminous challenges lodged by President George W. Bush, have employed these instruments in an attempt to leverage power and control away from Congress by establishing these broad assertions of authority as a constitutional norm.”

Signing statements have been issued by Presidents for over a century and are not inherently problematic. To the contrary, they may be beneficial to the extent that they alert Congress and the public to Presidential actions and intentions.

Yet the Bush Administration has been issuing signing statements with growing frequency, as reported earlier this year by Charlie Savage of the Boston Globe, and in a way that involves a “qualitative difference” from their use in the past, according to the CRS.

The Bush signing statements appear to be part of a larger campaign to seize increased Presidential authority, the CRS said.

“The broad and persistent nature of the claims of executive authority forwarded by President Bush appear designed to inure [i.e., to accustom] Congress, as well as others, to the belief that the President in fact possesses expansive and exclusive powers upon which the other branches may not intrude,” the CRS report stated.

It follows that “the appropriate focus of congressional concern should center not on the issuance of signing statements themselves, but on the broad assertions of presidential authority forwarded by Presidents and the substantive actions taken to establish that authority.”

The CRS study, written by T.J. Halstead, provides abundant information on the history of presidential signing statements, describes their limited impact on the judicial process, critiques a recent American Bar Association report on the subject, and more.

Like other CRS products, this study has not been made directly available to the public by CRS. A copy was obtained by Secrecy News.

See “Presidential Signing Statements: Constitutional and Institutional Implications,” September 22, 2006.

Congress Poised to Transfer Power to the Executive

Instead of defending Congressional prerogatives, Congress appears eager to transfer new, unchecked authority to the President in the name of combating terrorism.

A bill on military commissions for trial of enemy detainees that was approved in the House this week would permanently alter the complexion of the U.S. government by authorizing abuse of prisoners, curtailing prisoner access to the judicial system, and other previously unthinkable steps.

For critical perspectives on the military commissions bill, see “The Blind Leading the Willing” by Dahlia Lithwick, Slate, September 27, and “Rushing Off a Cliff,” New York Times (editorial)(free reg. req’d), September 28.

The September 27 House debate, leading to approval of the bill, is here.

The September 27 Senate floor debate on the bill is here.

Meanwhile, House Democrats said that pending legislation on domestic intelligence surveillance would dismantle existing checks and balance and traduce the Constitution.

H.R. 5825, the Electronic Surveillance Modernization Act, “is a dangerously broad bill that would turn FISA [the Foreign Intelligence Surveillance Act, which regulates domestic intelligence surveillance] on its head by making warrantless surveillance the rule rather than the exception,” the House Democrats said.

“[Its] vague definitions and broad loopholes allow the Executive Branch to conduct electronic surveillance of telephone calls and e-mail in the United States without court orders and without meaningful oversight.”

Their views, detailed in a dissent to a new report of the House Intelligence Committee, were rejected along party lines by the Republican majority.

See “Electronic Surveillance Modernization Act,” House Report 109-680, part 1, September 25.

Protection of Unclassified Security-Related Information (CRS)

Classification is the predominant means of protecting national security information. But even when information is unclassified, there are a number of statutes that can be used to restrict its public availability on security-related grounds.

Such statutory controls on unclassified security-related information are usefully cataloged in a new report from the Congressional Research Service.

See “Protection of Security-Related Information” (pdf), September 27, 2006.

For no extra charge, here are a couple of other recent CRS reports (pdf) obtained by Secrecy News.

“U.S.-India Nuclear Cooperation: A Side-By-Side Comparison of Current Legislation,” September 5, 2006.

“The Use of Federal Troops for Disaster Assistance: Legal Issues,” updated August 14, 2006.

President Bush Speaks Out on Openness, Classification

“We believe that the more we inform our American citizens, the better our government will be,” President Bush said Tuesday.

The remark could be considered conventional wisdom. Yet it is unexpected from this President since by most objective measures — such as the record number of classification decisions, skyrocketing expenditures on classification-related activities, and growing security controls on unclassified documents — public access to government information has been markedly curtailed under the Bush Administration.

Nevertheless, the President reiterated, “We believe that the more transparency there is in the system, the better the system functions on behalf of the American people.”

It follows that the less transparent aspects of government, such as the national security decision making process, function less well, which is manifestly true.

The President spoke at a signing ceremony for the Federal Funding Accountability and Transparency Act, which will establish a searchable online database of federal grants and contracts.

A White House fact sheet presented an argument that the new law “Is Part Of President Bush’s Ongoing Commitment To Improve Transparency, Accountability, And Management Across The Federal Government.”

At another event on Tuesday, the President appeared to express doubt that the national security classification system was working properly.

Referring to press reports in the New York Times and elsewhere about a classified National Intelligence Estimate on trends in terrorism, portions of which were declassified (pdf) Tuesday, President Bush complained that “Somebody has taken it upon themselves to leak classified information for political purposes.”

In Washington, he said, “there’s no such thing as classification anymore, hardly.”

In reality, of course, classification has expanded in size and scope to unprecedented levels in the Bush Administration.

So the President might have been making a deep point that the efficacy of classification declines when its use increases sharply, along the lines of Justice Potter Stewart’s familiar dictum that “when everything is classified, then nothing is classified.” Or maybe he just misspoke.

Selected CRS Reports

Some noteworthy new reports from the Congressional Research Service that have not been made readily available to the public include the following (all pdf).

“Interrogation of Detainees: Overview of the McCain Amendment,” updated September 25, 2006.

“The War Crimes Act: Current Issues,” September 25, 2006.

“U.S. Policy Regarding the International Criminal Court,” updated August 29, 2006.

“Agroterrorism: Threats and Preparedness,” updated August 25, 2006.

NRC Rescinds Secrecy Surrounding HEU Fuel Exports

The U.S. Nuclear Regulatory Commission says that it will no longer conceal the amounts of highly enriched uranium (HEU) fuel proposed for export to foreign research reactors. The announcement marks a step back from the heightened secrecy adopted by the NRC and other government agencies post-September 11.

The revised policy had been sought by the Nuclear Control Institute, a non-proliferation advocacy organization, and the move was disclosed in an August 31 letter (pdf) to the Institute.

“After considering your recommendations and various other factors, NRC will discontinue automatically withholding material quantity information from the public versions of export license applications,” wrote NRC Chairman Dale E. Klein to NCI analyst Alan J. Kuperman.

Henceforward, “Federal Register notices for proposed HEU exports will also include quantities requested,” Chairman Klein wrote.

The Nuclear Control Institute had argued that such disclosure serves the public interest because it enables public vetting of applications for HEU exports and thereby helps to ensure that traffic in weapons-grade uranium is minimized.

NCI analyst Kuperman commended the NRC for “rethinking and reversing a secrecy policy that was a counter-productive over-reaction to the attacks of September 11.”

He said the new openness policy will “assist the Commission to fulfill its statutory responsibility to minimize commerce in bomb-grade uranium.”

“The NRC will continue to withhold information on projected or actual shipment schedules, delivery dates, … or any other related logistical information… as this information could be useful to a potential adversary,” Chairman Klein wrote.

CIA Regulations on Pre-Publication Review Posted

The Central Intelligence Agency requires current and former employees to submit all intelligence-related material that they intend to publish to the CIA for pre-publication review.

Depending on the political climate, the subject matter and sometimes the personalities involved, the pre-publication review process can be routine and relatively painless, or it can be a bureaucratic nightmare spawning years of litigation.

The current CIA regulations governing pre-publication review were revised in 2005 and issued by then-DCIA Porter J. Goss. A copy of the regs, in slightly redacted form, is available here (pdf).

The prior version, dating from 1995 (also partially redacted), is here (pdf).

Both editions were recently entered into the record of a pending lawsuit, Thomas Waters Jr. v. Central Intelligence Agency.

Plaintiff Waters, a former CIA employee, is suing the Agency in a pre-publication review dispute in D.C. District Court. He is represented by attorney Mark S. Zaid.

Joint Ops, Iraqi Docs, and Air Force Classification Markings

Some noteworthy military, intelligence and classification-related publications that have recently been issued include the following (all pdf).

“Joint Operations,” JP 3-0 published on September 17, 2006 by the Joint Chiefs of Staff, “reflects the current guidance for conducting joint and multinational activities across the range of military operations.”

“The Iraqi Documents: A Glimpse Into the Regime of Saddam Hussein” was the subject of an April 6, 2006 hearing before the House Committee on International Relations. The hearing transcript has just been published.

“Implementation of New Classification Marking Requirements” is the topic of a May 30, 2006 U.S. Air Force policy memo which is intended to remedy “a widespread lack of consistent and accurate classification markings” identified by the Government Accountability Office in a recent audit.

The Cost of the War, and More from CRS

Congress has appropriated about $437 billion for military operations in Iraq and Afghanistan through FY 2006, according to a newly updated report from the Congressional Research Service.

See “The Cost of Iraq, Afghanistan, and Other Global War on Terror Operations Since 9/11″ (pdf), updated September 22, 2006.

Some other notable new CRS reports that have not been made readily available to the public include these (all pdf):

“National Security Surveillance Act of 2006: S. 3886, Title II (S. 2453 as Reported Out of the Senate Judiciary Committee),” September 15, 2006.

“Bangladesh: Background and U.S. Relations,” September 7, 2006.

“Terrorist Watchlist Checks and Air Passenger Prescreening,” September 6, 2006.

“Cuba: U.S. Restrictions on Travel and Remittances,” updated August 30, 2006.

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