Presidential Powers: Isn't That "Special"

The military's super-secret projects  are labeled by the Pentagon as "Special Access Programs."  There's speculation for example that the NSA's warrantless spying was a SAP. Another SAP, just as Sy Hersh alleged, has been implicated in detainee abuse.

The investigation into the alleged torture that took place under a SAP  was subsequently stonewalled and dropped.

Shouldn't be surprising. After all, secret programs often lack accountability, and so leave the door wider open to scandal. That's why in 2001 Congress passed a law requiring that Congress be given 30 days notice of any new SAPs.  But as Steve Aftergood over at Secrecy News notices, President Bush then declared he wasn't really bound by, well, the law.  And of course, Bush  made the announcement via a signing statement.

From the  signing statement, which was issued in January 10, 2002:

Section 8007 of the Act prohibits use of funds to initiate a special access program until 30 calendar days of congressional session have elapsed after the executive branch has notified the congressional defense committees of initiation of the program.

The U.S. Supreme Court has stated that the President's authority to classify and control access to information bearing on national security flows from the Constitution and does not depend upon a legislative grant of authority. 

Although 30-day advance notice can be provided in most situations as a matter of comity, situations may arise, especially in wartime, in which the President must promptly establish special access controls on classified national security information under his constitutional grants of the executive power and authority as Commander in Chief of the Armed Forces. 

The executive branch shall construe section 8007 in a manner consistent with the constitutional authority of the President.

P.S. The Bush administration did inform a handful of  legislators about the snooping. But it was done in such a limited, secretive way, that real oversight was, um, somewhat contrained:

Secrecy around the briefings and surveillance made it impossible for lawmakers with objections to make speeches or file bills to stop it, said Lee Hamilton, a co-chairman of the commission that investigated the 9/11 attacks. The commission's report called congressional oversight of intelligence too weak.

"A member of an intelligence committee who hears of some activity he disapproves of has no real way to bring that public because if he does, he's breaking the law," said Hamilton, an Indiana Democrat who chaired the House Intelligence Committee in the mid-1980s.

Comments

[Josh]

So essentially, the president publicly announced the while he would try to abide by the requirement for notification, certain circumstances might arise wherein he couldn't, and that he was putting the Congress on public notice that he felt he had the right to ignore the notification period in those circumstances. Shocking stuff. He has multiple Supreme Court cases and years of precedent to back his position up. Even if you disagree with his take on the extent of his authority under the Constitution, he is hardly showing reckless disregard either for it, or for the Congress.

[fnook]

Josh says: "[Bush] is hardly showing reckless disregard . . . for [his authority under the Constitution]." Perhaps you have better sources than I, but how can you possibly know this to be true? Isn't that the problem?

And doesn't the president's statement directly challenge the entire purpose of the law? Let's see, Congress got wind of these secret SAPs and decided that they didn't like not being informed of their existence. So they passed a law (not a contract!) requiring the executive to give them 30 days notice of any new SAPs. Upon signing the law into existence, the executive explicitly reserved the right to disregard the law any time he sees fit based on his own personal understanding of his constitutional powers. Do you really see nothing troubling about this scenario?

[moose]

Is this English?

"P.S. The Bush did inform a handful of legislators about the snooping. Of it was done in such a limited, secretive way, real oversight was, um, somewhat contrained:"
For a former editor you sure do not exhibit any grammatical or spelling skills.

[Eric Umansky]

Whoops. It was written in a rush as I ran out to lunch. Fixed now.

[Gawks]

Secrecy around the briefings and surveillance made it impossible for lawmakers with objections to make speeches or file bills to stop it, said Lee Hamilton, a co-chairman of the commission that investigated the 9/11 attacks.

Why couldn't a member of Congress who had been briefed on an illegal program have asserted one of the unquestioned prerogatives of the legislative branch--the guarantee in Article I, Section 6, that "for any speech or debate in either House, [a congressman] shall not be questioned in any other place." If a lawmaker thought the program was illegal, he could have said as much on the floor of the House or Senate--right?

[Eric Umansky]

Good question--except of course they would have been strung up for it politically (not that that means it would have been the wrong thing to do).

[Gawks]

I think the argument is pretty convincing that most members who were briefed on the programs in question were put at a severe disadvantage by being unable to take notes at briefing, not having the benefits of staff or counsel, and generally not being well equipped to judge the legality of the program on their own.

But one thing I find sort of disturbing is that, if Sen. Rockefeller truly thought the program was illegal, he could have said as much on the floor of the Senate. Or if he had grave concerns about the legality of the program, or even if he had grave concerns about whether the program was right as a *policy* matter, he was totally free to speak his mind on the floor, and then after that presumably he'd be free to submit whatever bills he liked.

There are questions of political expediency about why a member wouldn't want to stick out his neck to do that, but I'm not sure they would really reflect well on any member who had been briefed who wanted to make them.

I'm not sure there's any principled reason why a senator or representative who had such a belief should not have expressed it on the floor of Congress. After all, we've heard a lot of talk about the prerogatives of the executive--what about the prerogatives of legislators to debate policy?

[Gawks]

Moreover, presumably Sen. Rockefeller and other like-minded lawmakers could have threatened to make floor speeches on whatever programs they thought were of dubious legality, unless the NSA allowed them to discuss it with staff and counsel, take notes, hold hearings in front of an executive session of the entire committee, and otherwise provided them with enough information so that Congress could exercise its oversight function.

The President tried to circumvent the oversight function of Congress, of course. What really sucks is that a number of lawmakers were evidently concerned about it, and had the tools at their disposal to make sure it didn't happen, but went along with it--until it became public, and now they can make political hay out of the ensuing scandal.

But I guess none of this should be really that surprising. I'm shocked--shocked!--to see the President overreaching his authority and to see the Democrats in Congress completely fold under pressure.

[Eric Umansky]

"I guess none of this should be really that surprising. I'm shocked--shocked!--to see the President overreaching his authority and to see the Democrats in Congress completely fold under pressure. "

Gawk, I think that about captures it.

[!]

The theme of these things is quite redundant, isn't it?

Essentially, politicians have no balls. Only when called out on it publically do they try to make it seem like they do have a pair. And, even then, it doesn't account for what they're missing.

The public face of their actions show one thing and in fact it isn't never completely anything more than a facade. The Chief Exec. says he supports a bill, makes it into law all while adding a caveat saying he won't always faithfully execute the laws of the land. In the other wing, there are those who disagree with the way laws are executed and won't say a word until it is politically safe to do so.

[Joe Correia]

Greetings Andrew!!!
I am an US army veteran.
I saw your interview on TV.
First I want to thank you for your effort in bringing this opportunity for free speech to the net.
My comment is directed to the issue of religion.
From the beginning of man and through out every culture there has been to fundamental aspects to us as humans regarding our social side.
1st we want to coral
2nd We have no true understanding of the very universe in which we exist.

So we control what we can however we can.

The two legs of our social body are politics and religion.
The first one pertains to the control of access to resources and the other one to the control of our minds.

In math when we are dealing with an identity, incognita, or unknown value we simply represent that value as a letter like "X" and we place the "X" in the formula or equation and by doing so we arrive at some practical or applicable result.

In religion we do the same thing. We replace or represent that mystery of this universe by a word which in English is most popularly known as "God"

From the beginning of time there is only one thing that has ALWAYS been perfectly consistent in relation to the concept of GOD. No matter the time in history or the religion GOD has NEVER shown itself to us.
Just as there isn't a true value for "X" which changes according to its position in any equation.

Therefore religion is about believe NOT fact. Not at least until the all mighty shows its face and tells us what the real score is. Personally O would love for that to happen so we could get a society free from all this ministries that are sucking whatever brains are left in the heads of modern man.
I believe in evolution and it looks to me as if I am witnessing the coming of the next breed of man: Homo Stupidus and the major genetic changes have to do with the mass brain washing of religion.

The funny thing is that while religion has been notorious for apposing science, they always use the scientific benefits to promote themselves

The levels of hypocrisy and marrow thinking are so high that we have lost base. Now we are arguing between Islam and Christianity as if one is any better than the other.
Ultimately all religions are about the same thing: Exploration of human passion for the understanding of the universe in which we live for the benefit of a minority and to promote control through fear in order to make it easier to keep the masses from realizing their own power. This is best done by controlling education, information and discouraging thinking by replacing it with unconditional faith on whatever the leaders want the masses to believe and do.

If we were to have the courage to wash our brains from all the crap that has been stuffed in it we would see that the only place where God exists as defined by any mortal is in the heads of humans and that is why God has never shown itself but people do in its name.

I do not blame the masses for what they do as I do not blame the bullets that kill our kids every day around the world I don’t even blame the shooters that pull the trigger. I blame the gun makers and even more the religious leaders who sell their human assets to the political minds for profit and power.

Ultimately I am not even mad about the whole thing, I am truly sad that this is all humanity can do with its intelligence and all their Gods. I suffer deeply inside for the ugly nature of men and its constant state of abuse I am sadly disappointed at the inability of those in the positions of power to choose ways to bring us together.

All this is truly sad and at this rate our leaders will bring humanity to the brink of destruction or even annihilation.

I just wish that the God we have created could emancipate Itself from the heads of his makers and could then manifest to us as God.

Maybe that is why we have ferry tails and Santa when we are little. This way we are trained from the crib to believe not in our intelligence and thinking but in somebody else’s stories.

So when you addressed the issue of Robertson in regards to Sharon and the Old Testament I felt sad for even a sharp man like you chooses to turn gray in this issue
Thanks again Andrew for your graceful and generous effort to give us a place to express our thoughts and feelings.

Smiles from the heart,
JC