[Weekly Compilation of Presidential Documents Volume 39, Number 40 (Monday, October 6, 2003)]
[Pages 1289-1290]
[Online from the Government Publishing Office, www.gpo.gov]

<R04>
Statement on Signing the Department of Defense Appropriations Act, 2004

September 30, 2003

    Today, I have signed into law H.R. 2658, the ``Department of Defense 
Appropriations Act, 2004.''
    Sections 8007 and 8103 of the Act prohibit the use of funds to 
initiate a special access program or to initiate 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 and 8103 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 and 8103 
in a manner consistent with the constitutional authority of the 
President.
    Section 8065 of the Act provides that, notwithstanding any other 
provision of law, no funds available to the Department of Defense for 
fiscal year 2004 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 
8065 sooner than 15 days after notification, the executive branch shall 
construe section 8065 in a manner consistent with the President's 
constitutional authority as Commander in Chief of the Armed Forces.
    A proviso in the Act's appropriation for ``Operation and 
Maintenance, Defense-Wide'' prohibits implementation of and purports to 
prohibit planning for consolidation of certain offices within the 
Department of Defense. Also, sections 8010(b), 8041(b), and 8115 purport 
to specify the content of a portion of a future budget request to the 
Congress for the Department of Defense. 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 in INS v. Chadha.
    A proviso within the appropriation for ``Operation and Maintenance, 
Air Force'' earmarks an amount of funds for a grant to a college for the 
purpose of funding minority aviation training, and section 8089 of the 
Act provides that, in implementing a healthcare interagency partnership 
under that section, Native Hawaiians shall have the status of Native 
Americans who are eligible for healthcare services. The executive branch 
shall implement the proviso and section 8089 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.
    Sections 8082, 8091, 8117, and 8131 of the Act make clear that the 
classified annex accompanies but is not incorporated as a part of the 
Act, and therefore the classified annex does not meet the bicameralism 
and presentment requirements specified by the Constitution for the 
making of a law. Accordingly,

[[Page 1290]]

the executive branch shall construe the classified annex references in 
sections 8082, 8091, 8117, and 8131 as advisory in effect. My 
Administration continues to discourage any efforts to enact secret law 
as part of defense funding legislation and encourages instead 
appropriate use of classified annexes to committee reports and joint 
statements of managers that accompany the final legislation.
                                                George W. Bush
 The White House,
 September 30, 2003.

Note: H.R. 2658, approved September 30, was assigned Public Law No. 108-
87. This statement was released by the Office of the Press Secretary on 
October 1.