    [Public Papers of the Presidents of the United States: George W. Bush (2005, Book II)]
    [December 30, 2005]
    [Pages 1901-1903]
    [From the U.S. Government Publishing Office www.gpo.gov]

    Statement on Signing the Department of Defense, Emergency Supplemental
    Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic
    Influenza Act, 2006
    December 30, 2005

        Today, I have signed into law H.R. 2863, the ``Department of
    Defense, Emergency Supplemental Appropriations to Address Hurricanes in
    the Gulf of Mexico, and Pandemic Influenza Act, 2006.'' The Act provides
    resources needed to fight the war on terror, help citizens of the Gulf
    States recover from devastating hurricanes, and protect Americans from a
    potential influenza pandemic.
        Sections 8007, 8011, and 8093 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 8093 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 these sections in a manner consistent with the constitutional
    authority of the President.
        Section 8059 of the Act provides that, notwithstanding any other
    provision of law, no funds available to the Department of Defense for
    fiscal year 2006 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 enforcement, or humanitarian
    assistance operations might require action of a kind covered by section
    8059 sooner than 15 days after notification, the executive branch shall
    construe the section 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), 8032, 8037(b), and 8100 purport to specify the content
    of portions of future budget requests to the Congress. The executive
    branch shall construe these provisions relating to planning and making
    of budget recommendations in a manner consistent

    [[Page 1902]]

    with the President's constitutional authority to require the opinions of
    the heads of departments, to supervise the unitary executive branch, 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 constitutional principles enunciated by the Supreme Court of
    the United States in INS v. Chadha.
        The executive branch shall construe section 8104, 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. Also, the executive branch shall construe
    sections 8106 and 8119 of the Act, which purport to prohibit the
    President from altering command and control relationships within the
    Armed Forces, as advisory, as any other construction would be
    inconsistent with the constitutional grant to the President of the
    authority of Commander in Chief.
        The executive branch shall construe provisions of the Act relating
    to race, ethnicity, gender, and State residency, such as sections 8014,
    8020 and 8057, in a manner consistent with the requirement to afford
    equal protection of the laws under the Due Process Clause of the
    Constitution's Fifth Amendment.
        The executive branch shall construe Title X in Division A of the
    Act, relating to detainees, in a manner consistent with the
    constitutional authority of the President to supervise the unitary
    executive branch and as Commander in Chief and consistent with the
    constitutional limitations on the judicial power, which will assist in
    achieving the shared objective of the Congress and the President,
    evidenced in Title X, of protecting the American people from further
    terrorist attacks. Further, in light of the principles enunciated by the
    Supreme Court of the United States in 2001 in Alexander v. Sandoval, and
    noting that the text and structure of Title X do not create a private
    right of action to enforce Title X, the executive branch shall construe
    Title X not to create a private right of action. Finally, given the
    decision of the Congress reflected in subsections 1005(e) and 1005(h)
    that the amendments made to section 2241 of title 28, United States
    Code, shall apply to past, present, and future actions, including
    applications for writs of habeas corpus, described in that section, and
    noting that section 1005 does not confer any constitutional right upon
    an alien detained abroad as an enemy combatant, the executive branch
    shall construe section 1005 to preclude the Federal courts from
    exercising subject matter jurisdiction over any existing or future
    action, including applications for writs of habeas corpus, described in
    section 1005.
        Language in Division B of the Act, under the heading ``Office of
    Justice Programs, State and Local Law Enforcement Assistance,'' purports
    to require the Attorney General to consult congressional committees
    prior to allocating appropriations for expenditure to execute the law.
    Because the President's constitutional authority to supervise the
    unitary executive branch and take care that the laws be faithfully
    executed cannot be made by law subject to a requirement to consult with
    congressional committees or to involve them in executive decision-
    making, the executive branch shall construe the provision to require
    only notification. At the same time, the Attorney General shall, as a
    matter of comity between the executive and legislative branches, seek
    and consider the views of appropriate committees in this matter as the
    Attorney General deems appropriate.
        Certain provisions in the Act purport to allocate funds for
    specified purposes as set forth in the joint explanatory statement of

    [[Page 1903]]

    managers that accompanied the Act or other Acts; to make changes in
    statements of managers that accompanied various appropriations bills
    reported from conferences in the past; or to direct compliance with a
    committee report. Such provisions include section 8044 in Division A,
    and sections 5022, 5023, and 5024 and language under the heading
    ``Natural Resources Conservation Service, Conservation Operations'' in
    Division B, of the Act. Other provisions of the Act, such as sections
    8073 and 8082 in Division A, purport to give binding effect to
    legislative documents not presented to the President. The executive
    branch shall construe all these provisions in a manner consistent with
    the bicameral passage and presentment requirements of the Constitution
    for the making of a law.

                                                              George W. Bush

     The White House,

     December 30, 2005.

    Note: H.R. 2863, approved December 30, was assigned Public Law No. 109-
    148.