[Weekly Compilation of Presidential Documents Volume 38, Number 48 (Monday, December 2, 2002)]
[Pages 2092-2095]
[Online from the Government Publishing Office, www.gpo.gov]

<R04>
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

[[Page 2093]]

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 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),

[[Page 2094]]

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 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 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

[[Page 2095]]

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.