[Weekly Compilation of Presidential Documents Volume 40, Number 32 (Monday, August 9, 2004)]
[Pages 1453-1454]
[Online from the Government Publishing Office, www.gpo.gov]

<R04>
Statement on Signing the Department of Defense Appropriations Act, 2005

August 5, 2004

    Today I have signed into law H.R. 4613, the ``Department of Defense 
Appropriations Act, 2005.'' The bill provides funds to pursue the war on 
terror, advance other United States interests around the globe, and 
support our Armed Forces.
    Sections 8007, 8011, and 8106 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 8106 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, 8011, and 8106 in a manner consistent with the 
constitutional authority of the President.
    Section 8064 of the Act provides that, notwithstanding any other 
provision of law, no funds available to the Department of Defense for FY 
2005 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 6 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 
8064 sooner than 15 days after notification, the executive branch shall 
construe section 8064 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), 8036, 8041(b), 8110, and 8116 purport to specify the 
content of a portion of a future budget request to the Congress for the 
Department. 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 of the United States 
in INS v. Chadha.
    A proviso within the appropriation for ``Operation and Maintenance, 
Air Force'' earmarks funds for a grant to a college for the purpose of 
funding minority aviation training, a proviso within the appropriation 
for ``Operation and Maintenance, Defense-Wide'' earmarks funds for a 
program for Asian American/Pacific Islander students,

[[Page 1454]]

and sections 8014 and 8021 of the Act grant contracting-related 
exceptions or preferences to Native Hawaiian organizations. The 
executive branch shall implement the provisos and sections 8014 and 8021 
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.
    The executive branch shall construe section 8101 of the Act, which 
purports to prohibit alteration of command responsibility or permanent 
assignment of forces until 270 days after submission of a plan for such 
alteration to the congressional defense committees, as advisory, as any 
other construction would be inconsistent with the constitutional grant 
to the President of the authority of Commander in Chief. Also, the 
executive branch shall construe section 8124, 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. Finally, the Executive Branch shall construe section 
12001, which purports to assign the Secretary of Defense the duty to 
negotiate with a foreign country, in a manner consistent with the 
President's constitutional authority to conduct the Nation's foreign 
affairs, which includes the authority to determine who shall negotiate 
for the United States under the President's direction with a foreign 
country.
                                                George W. Bush
 The White House,
 August 5, 2004.

Note: H.R. 4613, approved August 5, was assigned Public Law 108-287.