Link:
Today, I have signed into law H.R. 4986, the National Defense Authorization Act for Fiscal Year 2008. The Act authorizes funding for the defense of the United States and its interests abroad, for military construction, and for national security-related energy programs.
Provisions of the Act, including sections 841, 846, 1079, and 1222, purport to impose requirements that could inhibit the President's ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to supervise the executive branch, and to execute his authority as Commander in Chief. The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President.
I quickly looked up this bill on THOMAS and found the relevant sections. Here are the first three:
SEC. 841. COMMISSION ON WARTIME CONTRACTING IN IRAQ AND AFGHANISTAN.
(a) Establishment- There is hereby established a commission to be known as the `Commission on Wartime Contracting' (in this section referred to as the `Commission').
[...]
(1) GENERAL DUTIES- The Commission shall study the following matters:
(A) Federal agency contracting for the reconstruction of Iraq and Afghanistan.
(B) Federal agency contracting for the logistical support of coalition forces operating in Iraq and Afghanistan.
(C) Federal agency contracting for the performance of security functions in Iraq and Afghanistan.
(2) SCOPE OF CONTRACTING COVERED- The Federal agency contracting covered by this subsection includes contracts entered into both in the United States and abroad for the performance of activities described in paragraph (1).
(3) PARTICULAR DUTIES- In carrying out the study under this subsection, the Commission shall assess--
(A) the extent of the reliance of the Federal Government on contractors to perform functions (including security functions) in Iraq and Afghanistan and the impact of this reliance on the achievement of the objectives of the United States;
(B) the performance exhibited by Federal contractors for the contracts under review pursuant to paragraph (1), and the mechanisms used to evaluate contractor performance;
(C) the extent of waste, fraud, and abuse under such contracts;
(D) the extent to which those responsible for such waste, fraud, and abuse have been held financially or legally accountable;
(E) the appropriateness of the organizational structure, policies, practices, and resources of the Department of Defense and the Department of State for handling program management and contracting for the programs and contracts under review pursuant to paragraph (1);
(F) the extent to which contractors under such contracts have engaged in the misuse of force or have used force in a manner inconsistent with the objectives of the operational field commander; and
(G) the extent of potential violations of the laws of war, Federal law, or other applicable legal standards by contractors under such contracts.
[...]
SEC. 846. PROTECTION FOR CONTRACTOR EMPLOYEES FROM REPRISAL FOR DISCLOSURE OF CERTAIN INFORMATION.
(a) Increased Protection From Reprisal- Subsection (a) of section 2409 of title 10, United States Code, is amended--
(1) by striking `disclosing to a Member of Congress' and inserting `disclosing to a Member of Congress, a representative of a committee of Congress, an Inspector General, the Government Accountability Office, a Department of Defense employee responsible for contract oversight or management,'; and
(2) by striking `information relating to a substantial violation of law related to a contract (including the competition for or negotiation of a contract)' and inserting `information that the employee reasonably believes is evidence of gross mismanagement of a Department of Defense contract or grant, a gross waste of Department of Defense funds, a substantial and specific danger to public health or safety, or a violation of law related to a Department of Defense contract (including the competition for or negotiation of a contract) or grant'.
(b) Clarification of Inspector General Determination- Subsection (b) of such section is amended--
(1) by inserting `(1)' after `Investigation of Complaints- ';
(2) by striking `an agency' and inserting `the Department of Defense, or the Inspector General of the National Aeronautics and Space Administration in the case of a complaint regarding the National Aeronautics and Space Administration'; and
(3) by adding at the end the following new paragraph:
`(2)(A) Except as provided under subparagraph (B), the Inspector General shall make a determination that a complaint is frivolous or submit a report under paragraph (1) within 180 days after receiving the complaint.
`(B) If the Inspector General is unable to complete an investigation in time to submit a report within the 180-day period specified in subparagraph (A) and the person submitting the complaint agrees to an extension of time, the Inspector General shall submit a report under paragraph (1) within such additional period of time as shall be agreed upon between the Inspector General and the person submitting the complaint.'.
(c) Acceleration of Schedule for Denying Relief or Providing Remedy- Subsection (c) of such section is amended--
(1) in paragraph (1), by striking `If the head of the agency determines that a contractor has subjected a person to a reprisal prohibited by subsection (a), the head of the agency may' and inserting after `(1)' the following: `Not later than 30 days after receiving an Inspector General report pursuant to subsection (b), the head of the agency concerned shall determine whether there is sufficient basis to conclude that the contractor concerned has subjected the complainant to a reprisal prohibited by subsection (a) and shall either issue an order denying relief or shall';
(2) by redesignating paragraphs (2) and (3) as paragraphs (4) and (5), respectively; and
(3) by inserting after paragraph (1) the following new paragraphs:
`(2) If the head of an executive agency issues an order denying relief under paragraph (1) or has not issued an order within 210 days after the submission of a complaint under subsection (b), or in the case of an extension of time under paragraph (b)(2)(B), not later than 30 days after the expiration of the extension of time, and there is no showing that such delay is due to the bad faith of the complainant, the complainant shall be deemed to have exhausted all administrative remedies with respect to the complaint, and the complainant may bring a de novo action at law or equity against the contractor to seek compensatory damages and other relief available under this section in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy. Such an action shall, at the request of either party to the action, be tried by the court with a jury.
`(3) An Inspector General determination and an agency head order denying relief under paragraph (2) shall be admissible in evidence in any de novo action at law or equity brought pursuant to this subsection.'.
(d) Definitions- Subsection (e) of such section is amended--
(1) in paragraph (4), by inserting `or a grant' after `a contract'; and
(2) by inserting before the period at the end the following: `and any Inspector General that receives funding from, or has oversight over contracts awarded for or on behalf of, the Secretary of Defense'.
[...]
SEC. 1079. COMMUNICATIONS WITH THE COMMITTEES ON ARMED SERVICES OF THE SENATE AND THE HOUSE OF REPRESENTATIVES.
(a) Requests of Committees- The Director of the National Counterterrorism Center, the Director of a national intelligence center, or the head of any element of the intelligence community shall, not later than 45 days after receiving a written request from the Chair or ranking minority member of the Committee on Armed Services of the Senate or the Committee on Armed Services of the House of Representatives for any existing intelligence assessment, report, estimate, or legal opinion relating to matters within the jurisdiction of such Committee, make available to such committee such assessment, report, estimate, or legal opinion, as the case may be.
(b) Assertion of Privilege-
(1) IN GENERAL- In response to a request covered by subsection (a), the Director of the National Counterterrorism Center, the Director of a national intelligence center, or the head of any element of the intelligence community shall provide to the Committee making such request the document or information covered by such request unless the President determines that such document or information shall not be provided because the President is asserting a privilege pursuant to the Constitution of the United States.
(2) SUBMISSION TO CONGRESS- The White House Counsel shall submit to Congress in writing any assertion by the President under paragraph (1) of a privilege pursuant to the Constitution.
(c) Definitions- In this section:
(1) INTELLIGENCE COMMUNITY- The term `intelligence community' has the meaning given the term in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).
(2) INTELLIGENCE ASSESSMENT- The term `intelligence assessment' means an intelligence-related analytical study of a subject of policy significance and does not include building-block papers, research projects, and reference aids.
(3) INTELLIGENCE ESTIMATE- The term `intelligence estimate' means an appraisal of available intelligence relating to a specific situation or condition with a view to determining the courses of action open to an enemy or potential enemy and the probable order of adoption of such courses of action.
So, the President has asserted the right to refrain from establishing a war profiteering commission and enforce whistleblower protection laws. Could it get any worse than that? Apparently, it can.
Prepare yourself for this last one:
SEC. 1222. LIMITATION ON AVAILABILITY OF FUNDS FOR CERTAIN PURPOSES RELATING TO IRAQ.
No funds appropriated pursuant to an authorization of appropriations in this Act may be obligated or expended for a purpose as follows:
(1) To establish any military installation or base for the purpose of providing for the permanent stationing of United States Armed Forces in Iraq.
(2) To exercise United States control of the oil resources of Iraq.
There you have it.
THE PRESIDENT HAS JUST ASSERTED THE RIGHT TO INSTALL PERMANENT BASES IN IRAQ AND CONTROL ITS OIL AGAINST WISHES OF CONGRESS.
Atrios once predicted this would happen in 2006, when the signing statements story first broke.
Update: Several other outlets have picked this story up.
Think Progress
Inter Press Service
Council for a Livable World (?)
CQ Today