    [Public Papers of the Presidents of the United States: George W. Bush (2002, Book II)]
    [November 25, 2002]
    [Pages 2128-2131]
    [From the U.S. Government Publishing Office www.gpo.gov]

    Statement on Signing the Homeland Security Act of 2002
    November 25, 2002

        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

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    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

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    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

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    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.

    Note: H.R. 5005, approved November 25, was assigned Public Law No. 107-
    296.