Keeping Torture in the Hands of Congress? (RT TV Interview on Appendix M & Attempts to Make Official Secret Torture)

I was on RT TV today, talking about my article at Truthout, Senate Amendment Calls for a Return to Bush-Era Torture.



My thanks to the RT news producers who gave me the opportunity to speak on camera about the least reported aspect of the torture scandal, the presence of torture techniques in America's otherwise lauded military interrogation manual.

While a number of human rights and civil liberties organizations have spoken out against Appendix M abuse over the years (see TO story), none of them saw fit to bring up the issue when they produced their press releases or gave interviews in opposition to Sen. Ayotte's amendment to create a "classified annex" to the Army Field Manual, which would consist of secret torture techniques similar or identical to the so-called enhanced interrogation techniques (waterboarding, etc.) of the Bush/Cheney years.

Placed in context with the successful passage of the Defense Authorization Bill today, including provisions to demand indefinite detention for all those who the U.S. deems "terrorists" anywhere in the world, including U.S. citizens in their own country, the repressive apparatus of the U.S. ruling elite is gearing up for serious political repression, even as it presses its war drive around the world. In particular, their cross-hairs are aimed at Iran, China, and Russia, not to mention any insurgency that they feel won't genuflect to their military might and corporate profit takers.

It's a sad and dangerous time in America, as the leadership of the supposed opposition to all this has taken a dive when it comes to the torture issue, as they line up behind the national security militarist state and their war drive.

The Forgotten History of David Petraeus

Originally posted at FDL/The Dissenter

In July, General David Petraeus was approved as CIA Director by both the Senate Intelligence Committee and then the full Senate, whose vote was an astounding 94-0, astounding because this is a man who was deeply implicated in war crimes, including torture.

While Petraeus's record on backing both torture and death/terror squads in Iraq had been looked at before, literally no one brought up this record when the Obama administration's nomination of Petraeus was being sped through the constitutional "advice and consent" process. The failure of any U.S. Senator to ask questions about Petraeus's record on these matters demonstrates the utter bankruptcy of the two political parties, and even more, of U.S. civil society as a whole. Under the leadership of Barack Obama, torture has not only not been ended, its institutionalization has been solidified from the Bush years.

The dubious Yoo/Bybee/Bradbury OLC memos have been rescinded by President Obama's executive order, but the underlying structure of the torture program, which continually metamorphizes so that its existence will not be endangered, remains. Now a primary figure involved in the torture program is head of the CIA. These are dangerous times.

What makes them even more dangerous is the extreme complacency and passivity of the U.S. press, blogger community, and human rights organizations, who never raised a peep over the nomination of Petraeus to head the CIA, and who have for the most part let violations of the UN Convention Against Torture treaty, which makes the handing of prisoners over to state authorities who are likely to torture them a crime, become a unremarkable minor detail in their political reporting and campaigning.

Training the Torturers and the Implementation of FRAGO 242

Petraeus was promoted to lieutenant general in June 2004, and was appointed the first commander of the Multi-National Security Transition Command Iraq (MNSTC). The MNSTC was organized to train Iraqi Security Forces, with the supposed aim of making them responsible for Iraqi state security. The context was the dismantling of the Iraqi Army under the Coalition Provisional Authority (CPA) of L. Paul Bremer. While the CPA was busy privatizing the Iraqi economy, the cobbled-together Iraqi forces were unable to fight the remnants of the Saddam Hussein regime, and the country was rent by sectarian conflict.

It was also in June 2004 that Fragmentary Order 242 was issued, instructing U.S. forces, as the UK Guardian reported, "not to investigate any breach of the laws of armed conflict, such as the abuse of detainees, unless it directly involves members of the coalition. Where the alleged abuse is committed by Iraqi on Iraqi, 'only an initial report will be made … No further investigation will be required unless directed by HQ'."

Lt. Gen. Ricardo S. Sanchez, the Commander of US ground troops in Iraq, was the likely high official who signed off on this policy, but as the Guardian noted, "Frago 242 appears to have been issued as part of the wider political effort to pass the management of security from the coalition to Iraqi hands." The policy amounted to turning Iraqi prisoners over to security forces trained by Petraeus's MNSTC. The Iraqis tortured the prisoners, while U.S. forces were complicit, and if anyone wanted to intervene, the order tied their hands.

Frago 242 was modified in April 2005: "MNCI FRAGO 039 DTD 29 April 2005 has modified FRAGO 242 and now requires reports of Iraqi on Iraqi abuse be reported through operational channels."

Frago 039 was released in 2005. As Angus Stickler and Chris Woods at the Bureau of Investigative Journalism noted, "It is unclear from the files what happened to the reports of detainee abuse once they had been sent up the chain of command. There are indications that some may have been investigated, but it is not known whether this was by the US or if the files were handed over to the appropriate Iraqi authorities."

A likely example of Frago 242 in operation occurred during a June 29, 2004 encounter between Oregon National Guardsmen assigned to the 2nd Battalion, 162nd Infantry, and Iraqi Interior Ministry agents, as reported by Mike Francis in the Oregonian, August 2004 (as reposted by the Seattle Times). Members of the unit had observed the beating of blindfolded prisoners on the grounds of the Ministry. The story continued.

Soon after, a team of Oregon Army National Guard soldiers swept into the yard and found dozens of Iraqi detainees who said they had been beaten, starved and deprived of water for three days.

In a nearby building, the soldiers counted dozens more prisoners and what appeared to be torture devices: metal rods, rubber hoses, electrical wires and bottles of chemicals. Many of the Iraqis, including one identified as a 14-year-old boy, had fresh welts and bruises across their backs and legs.

The Guardsmen moved in, disarmed the Iraqi jailers and Lt. Col. Daniel Hendrickson of Albany, Oregon, radioed for further instructions. The instructions came. Officers up the chain of command in the Army's First Cavalry Division told Hendrickson "to return the prisoners to their abusers and immediately withdraw." The U.S. Embassy later confirmed the incident, and said that the issue was brought up with Iraqi authorities, but wouldn't disclose details, as "it would be 'inappropriate' to discuss 'details of those diplomatic and confidential conversations.' The embassy statement, we now know, was disingenuous in the extreme.

The embassy, in a written statement, said American soldiers are "compelled by the law of land warfare and core values to stop willful and unnecessary use of physical violence on prisoners." The U.S. soldiers involved in the incident, it said, "acted professionally and calmly to ease tensions and defend prisoners who needed help."

The U.S. Guardsmen who entered the Iraqi compound that day knew they had done the right thing by disarming the torturers, but felt it was wrong to move out. According to Francis, they spoke about the incident because they were "really upset." One soldier said, "They were really moved by what they'd seen." Francis wrote, "they wanted Americans to know about the actions they took to protect unresisting prisoners — and that they were ordered by U.S. military officials to walk away."

Reports of Torture After 2004

Reports of torture by Iraqi security forces continued to leak out. In 2005, Richard Galpin at BBC posted an incendiary story about the burgeoning scandal. According to the British news agency, "Iraq's new police force... [faced] mounting allegations of systematic abuse and torture of people in detention, as well as allegations of extra-judicial killings. The minority Sunni community in particular claims it is being targeted by the Shia-dominated police force."

According to Galpin, a list of different torture techniques published by Human Rights Watch at the time included "beating detainees with cables, hanging them from their wrists for long periods and giving electric shocks to sensitive parts of the body."

From a video given to the BBC by the Association of Muslim Scholars (a Sunni Muslim organisation), it seems another particularly brutal form of torture can also be added - drilling into the knees, elbows and shoulders of victims.

And according to press reports, the Shia-dominated commandos then targeting the Sunni minority were organized by -- David Petraeus. In an interview of Arun Gupta by Amy Goodman of Democracy Now!, Petraeus's part in this was described.

What we were talking about two-and-a-half years ago was Petraeus’s role in helping to set up the Special Police Commandos. In 2004, 2005, he was given the mission to train all Iraq military and police forces....

Now, one of the key things that Petraeus did was they decided -- him and his command decided -- that they were going to create this paramilitary force, the Special Police Commandos. They armed them. They funded them. They trained them. And they also issued the usual denials: “Oh, we're not giving them any weapons. This is an Iraqi initiative.” And so, now he’s saying the same thing with the Sunni militias.

So, anyway, the Special Police Commandos quickly morphed into Shiite death squads that were used against the Sunni insurgency and against Sunnis, in general, throughout Iraq.

One of the most notorious police commando units was the Wolf Brigade, which trained with U.S. forces, and was notorious for torture and extrajudicial murders in Sunni neighborhoods.

One of the most extraordinary reports on U.S. backing of the Iraqi terror police was by Peter Maass in the New York Times Magazine in May 2005. Maass was present at a meeting between himself and General Adnan Thabit, head of the Special Police Commandos. Also present was James Steele, "one of the United States military's top experts on counterinsurgency," Maass wrote. "Steele honed his tactics leading a Special Forces mission in El Salvador during that country's brutal civil war in the 1980's." A retired U.S. colonel, Steele was a member of General Petraeus's team working to train the police security units.

The interview with Thabit had barely started, when something bizarre and chilling occurred:

A few minutes after the interview started, a man began screaming in the main hall, drowning out the Saudi's voice. ''Allah!'' he shouted. ''Allah! Allah!'' It was not an ecstatic cry; it was chilling, like the screams of a madman, or of someone being driven mad. ''Allah!'' he yelled again and again. The shouts were too loud to ignore. Steele left the room to find out what was happening. When returned, the shouts had ceased. But soon, through the window behind me, I could hear the sounds of someone vomiting, coming from an area where other detainees were being held, at the side of the building.

Steele was not the only American involved in training the Iraqi terror police. Steve Casteel was "the senior U.S. adviser in the Ministry of Interior," working directly with Iraqi interior minister, Falah al-Nakib. According to Maass, Casteel was "a former top official in the Drug Enforcement Administration who spent much of his professional life immersed in the drug wars of Latin America. Casteel worked alongside local forces in Peru, Bolivia and Colombia, where he was involved in the hunt for Pablo Escobar, the head of the Medellin cocaine cartel."

Steele, Casteel and Petraeus have all told the press at various times that they opposed human rights abuses among Iraqi forces. Petraeus himself told New York Times reporters in May 2006 that he and his team "vigorously pursued allegations of misconduct," and that "he never received evidence of the police carrying out clearly sectarian violence, but that at his insistence three commando leaders were fired or moved to lesser positions for detainee abuse or corruption."

In a September 25, 2004 op-ed for the Washington Post, Petraeus wrote, "Helping organize, train and equip nearly a quarter-million of Iraq's security forces is a daunting task." He cited all the "progress" that had been made under his command. He noted he met "with Iraqi security force leaders every day." In a very slight nod to reports of atrocities, Petraeus wrote, "Though some have given in to acts of intimidation, many are displaying courage and resilience in the face of repeated threats and attacks on them, their families and their comrades. I have seen their determination and their desire to assume the full burden of security tasks for Iraq."

The progress and the U.S. remonstrances against torture have reportedly resulted in the suspension of a handful of Iraqi officers, but the reports about continuing torture by security forces continued, and many were revealed in the Wikileaks Iraq War Logs release earlier this year. Here is one of the reports, from August 2006. As the reader will note, while U.S. forces make a report, no investigation is initiated, and the prisoner and his torturer are said to remain at the Ramadi jail. The case is closed five days later.

*ALLEGED DETAINEE ABUSE BY IRAQI POLICE IN RAMADI ON 17 AUG 2006
SUSPECTED DETAINEE ABUSE RPTD AT 171100D AUG 06

1. DESCRIPTION OF INCIDENT/SUSPECTED VIOLATION (WHO REPORTED INCIDENT AND WHAT HAPPENED):

SGT –––––, 300TH MILITARY POLICE COMPANY, REPORTED IRAQI POLICE COMMITTING DETAINEE ABUSE AT AN IRAQI POLICE STATION IN RAMADI. SGT ––––– WITNESSED 1LT –––– WHIP A DETAINEE ACROSS HIS BACK WITH A PR-24 STRAIGHT SIDE HANDLED BATON AND 1LT –––– KICKING A SECOND DETAINEE. THAT NIGHT SGT ––––– HEARD WHIPPING NOISES WALKING THROUGH THE HALLWAY, AND OPENED A DOOR TO FIND 1LT –––– WITH A 4 GAUGE ELECTRICAL CABLE, WHIPPING THE BOTTOM OF A DETAINEE*S FEET. LATER THAT NIGHT, SGT ––––– CAUGHT 1LT –––– WHIPPING A DETAINEE ACROSS HIS BACK WITH AN ELECTRICAL CABLE. SGT ––––– DOCUMENTED EACH EVENT ON A SWORN STATEMENT FORM AND REPORTED THE INCIDENTS.

2. LOCATION (GRID COORDINATES OR OTHER REFERENCE): 38S LB 37142 99770

3. TIME OF OCCURRENCE AND TIME OF DISCOVERY: REPORTED 17 1100 AUG 06

4. WHO CAUSED (IF KNOWN) OR IDENTITY OF FRIENDLY AND ENEMY UNITS OPERATING IN THE IMMEDIATE AREA (IF KNOWN):

IRAQI POLICE FROM THE AL HURYIA IRAQI POLICE STATION

5. NAME OF WITNESSES (W/UNIT OR ADDRESS): SGT –––– ––––– –––––, 300TH MP COMPANY, MP PIT TEAM

6. UNIT POINT OF CONTACT: CPT –––– – –––– AT DNVT 551-2044 OR ––––.––––@–––––.ARMY.SMIL.MIL

7. EVIDENCE GATHERED AND ITS DISPOSITION: SWORN STATEMENTS AND PICTURES ARE ATTACHED

8. WEAPONS/EQUIPMENT INVOLVED: 4 GAUGE ELECTICAL CABLE, PR-24 BATON

9. DESCRIPTION OF DAMAGE OR INJURIES TO GOVERNMENT/CIVILIAN PROPERTY AND PERSONNEL: CIRCULAR WHIP MARKS, BLEEDING ON BACK, DARK RED BRUISING ON BACK

10. CURRENT LOCATION OF SUSPECTS AND VICTIMS (JAIL, HOSPITAL, AT SCENE, ETC.) BOTH ARE STILL AT AL HURYIA POLICE STATION

11. HOW IS THE SITE BEING SECURED? N/A

12. INVESTIGATING OFFICER. STATUS OF INVESTIGATION: NO INVESTIGATION INITIATED AT THIS POINT.

CLOSED: 22 AUG 2006

In February 2009, three years after the recognition of torture at Al Huryia police station, a U.S. military dispatch shows the Al Huryia police are still torturing prisoners, with U.S. knowledge, and no investigation. The military record merely concludes "Closed."

The case against Petraeus may be circumstantial, as we do not have a specific document that links him to torture, or even the Frago orders. But the General's culpability in these matters is highly likely, and the principle of command responsibility ties him into the policies that occurred under his command. You would have thought that there would have been a Congressional investigation of these matters, or that Petraeus would have been grilled about them at his hearing. Indeed, Petraeus explained at his recent Senate hearing that he would not rule out torture in "ticking time bomb" scenarios.

The United States has become so politically paralyzed that it cannot mount an effective political opposition to the economic fleecing being implemented currently by the executive and legislative branches of what can only be understood to be a torture state. Without a new political opposition, based on a genuine progressive popular movement, and ultimately a new political party that strives for power with a program of ending the dominance of the military and economic elites, then there is no light at the end of the tunnel, only our fear spinning solitary in the dark.

Support Transparency Amendment to Conflict Minerals Act

“Civil azali bilanga ya militaire” was a popular Congolese expression during the Mobutu regime which means: the civilian is the [corn] field of the military [1].

Rb137, a blogger at both Daily Kos and FDL's The Seminal, is pushing hard to get Congress to approve an amendment to the Conflict Minerals Amendment to the Wall Street Reform bill in Congress. In a recent article she explains why, noting we are facing an 11th hour vote on "blood diamonds" legislation.

From her article at The Seminal:

We are complicit in a brutal civil war taking place in The Democratic Republic of Congo [DRC]. Many of the metals that are used in technology come from the mining operations that support this war. You might have a device that funded this conflict in your pocket right now.

There is an important amendment to the Wall Street reform bill that directly impacts this conflict, and it needs your attention right now. This vote will be done by the end of the week. Today really is the 11th hour for conflict minerals legislation, which is up for a vote and is under attack by the National Association of Manufacturers:

NAM Concerned with Conflict Minerals Trade Act. New legislation is moving through Congress that could affect global supply chains and create new customs burdens…The legislation would require a transaction-by-transaction import declaration at entry certifying that a company’s imports do not contain “conflict” minerals…

This legislation is essential if we will address the conflict mineral trade — and it only requires transparency from companies; it does not require certification. This is an effort that industry can afford to make.

Barney Frank will soon announce a House offer on the Conflict Minerals Amendment to the Wall Street reform bill. It contains some language from HR 4128, which is the Conflict Minerals and Trade Act, but it does not require a certification of non-conflict — it requires transparency. If a company buys minerals known to be tied to the conflict in the Democratic Republic of the Congo, they must report their source publicly.

This amendment is carefully written to avoid intractible certification issues, but NAM is vehemently opposed to the measure. The corollary to NAM’s complaint: US companies will suffer if manufacturers are forced to disclose that they buy metal ore from the FDLR.

The FDLR is a militia called the Forces Democratiques de Liberation du Rwanda — seeded from a paramilitary organization called the Interahamwe, the same group that perpetrated the Rwandan genocide in 1994. The horror they inflict on the population around the Kivu region is absolutely monstrous, and the money they get from selling mineral ore buys weapons and empowers them to perpetuate the violence.

How bad is the sexual violence in the DRC? According to the UN High Commissioner for Refugees, "at least 200,000 cases of sexual violence have been recorded since 1996," and who knows how many have gone unreported.

Nor is the violence limited to one political group. According to a blog posting on the Congo conflict by the Canadian group, SAFER, Global Witness recently had researchers spend four weeks in the eastern DRC:

Global Witness reports that former Congrès national pour la défense du peuple (CNDP) rebels, integrated into the national army in 2009, have “gained far greater control of mining areas than they ever enjoyed as insurgents” in some of the country’s most lucrative tin (cassiterite) and tantalum mines. What this means for the workers scraping a living from these mines (often with bare hands), is that they are forced to pay illegal “taxes” to the armed soldiers and hand over large portions of their labour before they are allowed to leave the mine....

When faced with a gun, what can you do?…They ask for money…They ask for gold or cassiterite [tin]. Whatever happens, you have to give it.

–miner from Shabunda describing extortion at military roadblocks. Bukavu, 28 July 2008

What to Do?

Rb137 has kindly placed an action list of phone numbers in her blog postings. The following is taken from her Daily Kos post:

Call Blanche Lincoln and Bob Corker:

Blanche Lincoln and Bob Corker are Senate conferees on conflict minerals and are reported to stand with NAM in opposition to this legislation:

Sen. Lincoln (D-AR): 202-224-4843

Bob Corker (R-TN): 202-224-3344

Please call their offices today, and tell them to support the House offer on conflict minerals.

Another thing you can do quickly without leaving your chair: urge all of the House and Senate conferees on conflict minerals to vote "yes" on the House offer on Congo minerals.

Please use this quick action email link tell selected members of the House and Senate to support this important conflict mineral amendment. Members of the House and Senate have agreed upon language that is a useful first step -- and it is manageable for the companies that consume conflict metals, as well. This legislation simple requires transparancy with regard to buying and selling minerals.

To the degree you can, please call the conferees individually. In particular, ask them to to yes on the House offer on Congo minerals.

Senate members
Chris Dodd (D-CT) (202) 224-2823
Tim Johnson (D-SD) (202) 224-5842
Jack Reed (D-RI) (202) 224-4642
Charles Schumer (D-NY) (202) 224-6542
Richard Shelby (R-AL) (202) 224-5744
Bob Corker (R-TN) (202) 224-3344
Mike Crapo (R-ID) (202) 224-6142
Judd Gregg (R-NH) (202) 224-3324
Blanche Lincoln (D-AR) (202) 224-4843
Patrick Leahy (D-VT) (202) 224-4242
Tom Harkin (D-IA) (202) 224-3254
Saxby Chambliss (R-GA) (202) 224-3521

House members
Howard Berman (D-CA) (202) 225-4695
Leonard Boswell (D-IA) (202) 225-3806
John Conyers (D-MI) (202) 225-5126
Elijah Cummings (D-MD) (202) 225-4741
Barney Frank (D-MA) (202) 225-5931
Luis Gutierrez (D-IL) (202) 225-8203
Paul Kanjorski (D-PA) (202) 225-6511
Mary Jo Kilroy (D-OH) (202) 225-2015
Carolyn Maloney (D-NY) (202) 225-7944
Gregory Meeks (D-NY) (202) 225-3461
Dennis Moore (D-KA) (202) 225-2865
Gary Peters (D-MI) (202) 225-5802
Collin Peterson (D-MN) (202) 225-2165
Bobby Rush (D-IL) (202) 225-4372
Heath Shuler (D-NC) (202) 225-6401
Edolphus Towns (D-NY) (202) 225-5936
Nydia Velazquez (D-NY) (202) 225-2361
Maxine Waters (D-CA) (202) 225-2201
Mel Watt (D-NC) (202) 225-1510
Henry Waxman (D-CA) (202) 225-3976
Spencer Bachus (R-AL) (202) 225-4921
Joe Barton (R-TX) (202) 225-2002
Judy Biggert (R-IL) (202) 225-3515
Scott Garrett (R-NJ) (202) 225-4465
Sam Graves (R-MO) (202) 225-7041
Jeb Hensarling (R-TX) (202) 225-3484
Darrell Issa (R-CA) (202) 225-3906
Frank Lucas (R-OK) (202) 225-5565
Shelley Moore Capito (R-WV) (202) 225-2711

[1] Baaz and Stern, J Modern African Studies, 46(1): 57-86 (2008). Quoted from SAFER website, accessed June 24, 2010.

Bush Signing Statements Withholding Information to Congress on Torture

Originally posted at Firedoglake

Every once in a while, a news story crops up about yet another lie or omission regarding the briefings the CIA gave to Congressional intelligence committees on their interrogation aka torture program during the Bush years. Marcy Wheeler has been assiduously covering this for months, even years now, gathering together the disparate reports from a mostly disinterested mainstream press.

A few examples will suffice.

There was the time in July 2009 when House Intelligence Chairman Silvestre Reyes complained that his committee "has been misled, has not been provided full and complete notifications, and (in at least one occasion) was affirmatively lied to." Only months before, in a well-publicized press conference, House Speaker Nancy Pelosi accused the CIA of lying to Congress. "They didn't tell us everything," Pelosi complained. The Speaker's complaints followed CIA's release of a list (PDF) that purported to show how it had briefed Congress over the years on the interrogations program. The list, in Marcy Wheeler's words, was illustrative of CIA "playing around with its obligation to inform the intelligence committees." Her deconstruction of the list is juicy reading.

Sometimes, as Wheeler also recently reported, the efforts to sabotage Congressional oversight came from within, as in early 2003 when then-new Senate Intelligence Committee chair Pat Roberts scotched all plans to send a committee staffer to review CIA interrogation sites on behalf of the committee.

What isn't often mentioned was how the CIA was given the green light to lie and obfuscate by their superiors in the Executive Branch. It's well known that former President Bush used an unprecedented amount of signing statements during his administration, nullifying dozens, if not hundred of provisions in the bills he signed. A Pulitzer Prize winning account of this was written up by Charlie Savage in the Boston Globe in 2006. One should read the entire article (as well as others on the subject by Dahlia Lithwick and John Dean), but I'm only going to mainly concentrate on the signing statements that targeted Congressional oversight demands.

Bush Tells GOP-ruled Congress Back Off

Not long after 9/11, Congress sent President Bush the "Intelligence Authorization Act for Fiscal Year 2002" (PDF) for signing into law. In a signing statement dated December 23, 2001, Bush brushed aside the first of many attempts to get Congressional notification and oversight over Bush military and intelligence policies. As is well-known, he used justifications of executive power to dismiss what he didn't like.

Section 305 of the Act amends section 502 of the National Security Act of 1947, which relates to executive branch reports to the Congress under the intelligence oversight provisions of the National Security Act. Section 305 purports to require that reports submitted to the congressional intelligence committees by the executive branch on significant anticipated intelligence activities or significant intelligence failures always be in written form, with a concise statement of facts pertinent to the report and an explanation of the significance of the activity or failure.

Section 502 of the National Security Act as amended by section 305 of the Act shall be construed for all purposes, specifically including for the purpose of the establishment of standards and procedures under section 502(c) of the National Security Act by the Director of Central Intelligence, in a manner consistent with the President's constitutional authority 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. [Emphasis added]

This was not a one-time protest by the President, nor the end of Congressional attempts, under both Democrats and Republicans, to obtain factual material from the military and intelligence agencies whereby to conduct oversight. There were many of these, at least sixteen by my count, over the eight years of the Bush administration. This does not count how many times signing statements were used to nullify other policies and laws passed by Congress. For a list of pertinent signing statements, with some examples of the provisions Bush wished to cancel, see here. For a full reference to all the signing statements see the Georgetown Law Library's Presidential Signing Statements Research Guide and the listing of all signing statements by George W. Bush, as well as Barack Obama, to date, here.

More Denials for Congressional Notification

As the U.S. veered to "the dark side," and began expanding its gulag of secret prisons, rendition kidnappings to torture, and the construction of new CIA torture prisons, even the GOP-led Congress asked for fig leafs of oversight. Many of these programs were undertaken as Special Access Programs (SAPs), which are highly compartmentalized and secretive. When Congress passed a law in January 2002 that all funding to initiate special access programs be prohibited "until 30 calendar days of congressional session have elapsed after the executive branch has notified the congressional defense committees of initiation of the program," Bush balked.

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.

In other words, the President could establish his super-secret intelligence and torture programs anytime he wanted, "especially" though not only "in wartime", and there was nothing Congress could do about it. Though what Congress did do was try again, and again, and again, like a modern version of Oliver Twist asking the master for more gruel.

Year after year Congress passed laws as part of different defense appropriations bills and intelligence authorization acts, calling for notification, limiting of defense funds, attachment of requirements to spending money, etc., and year after year, Bush effectively nullified those laws by executive fiat. It's no wonder CIA saw no reason they had to give briefings to Congress, as they answered only to a President who ruled, not by comity, but by "executive power and authority as Commander in Chief of the Armed Forces." In essence, during the Bush years, there was a military dictatorship.

In 2004, Congress passed the "Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005" (HTML link). In it, they tried to limit the U.S. intervention into Colombia to a maximum of 800 military personnel and 600 contractors. Moreover, no military personnel were to engage in combat operations. A Bush signing statement declared that that law would only be construed "in a manner consistent with the President's constitutional authority as Commander in Chief and to supervise the unitary executive branch."

While policies were shredded by executive fiat, Congressional oversight was almost entirely eviscerated, particularly on intelligence matters. In his December 17, 2004 signing statement for the "Intelligence Reform and Terrorism Prevention Act of 2004" (P.L. 108-458), Bush's cancellation of Congressional powers of oversight was in full throttle.

The executive branch shall construe provisions in the Act that mandate submission of information to the Congress, entities within or outside the executive branch, or the public, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information that could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties. [Emphasis added]

Bush found -- or rather David Addington, who is widely believed to have drafted many of these signing statements -- fifteen different laws that called for such mandated submissions to Congress referenced in this single bill, and identified them all as subject only to his will and decision regarding compliance. No wonder he fashioned himself, "The Great Decider."

DoJ and DTA: Two Notable Instances of Presidential Nullification

It wasn't always reporting about defense or intelligence matters that was removed from Congressional scrutiny. In late 2002, Congress passed the "21st Century Department of Justice Appropriations Authorization Act" (P.L. 107-273). This new law included provisions to provide "substantial obligations for reporting to the Congress activities of the Department of Justice involving challenges to or nonenforcement of law that conflicts with the Constitution." Bush called it an imposition upon the Executive and that he would, "in a manner consistent with the constitutional authorities of the President to supervise the unitary executive branch... 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" (emphasis added).

The biggest flap over the signing statements came on December 30, 2005, when the president issued his statement H.R. 2863, the "Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006" (P.L. 109-148), a law which contained within it the provisions of the much-fought-over Detainee Treatment Act (DTA). The DTA was supposed to prohibit all inhumane treatment of prisoners, including those at Guantanamo, and limit techniques used in interrogations to those allowed in the Army Field Manual (AFM). (Note: The version of the Army Field Manual then in use did not include the special techniques allocated to in the version implemented nine months later in the revised AFM, primarily in its Appendix M.)

The legislation that implemented the DTA had some serious problems, including stark limitations on prisoner habeas rights and the allowance of use of evidence by torture. (See this analysis by Tom Malinowski at Human Rights Watch.) But even what limitations upon prisoner treatment and interrogation rules as it did have, Bush nullified with his typical legalistic appeal to the unitary executive.

The executive branch shall construe Title X in Division A of the Act [Detainee Treatment Act of 2005], relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

One could go on and on documenting and listing the ways in which the Bush administration attempted to block Congressional intent, and hence the nation's intent, when it came to the passage of laws and the conduct of oversight over Executive Branch affairs. Over and over again, Congress came back with attempts in the next set of appropriations or other laws to try and establish some provisions where oversight and Congressional mandate had some effect, and did this even under GOP leadership. Where they failed was in their inability to communicate what was happening to the American people. Not until 2006 was there a press conference called to complain about Executive Branch obfuscation and lies to Congress, and that came only have CIA tweaked Nancy Pelosi's nose.

President Barack Obama has kept his word, when he indicated he would not rule by presidential signing statement, or de facto line-item veto. But there are a lot of promises he has not kept -- on the FISA law, on transparency in government, on providing real reform of government, or even on cutting back entirely on torture (see this excellent article, or this New York Times op-ed). Most distressingly, he has indicated he will not pursue those who implemented torture as a policy within the Bush administration.

We have seen in the most recent historical period that Constitutional guarantees are paper-thin in 21st century America. Recent court rulings that have blatantly called out the use of torture by the CIA in its prisons and rendition sites, have gone practically ignored by the mainstream press. (See this latest excellent article by Andy Worthington on Judge Kennedy's amazing opinion in the Uthman habeas case.) Presidential/Executive power, even under Obama, is one of the most greatest dangers to Americans today. This is most notable in the Obama administration's contention that it can assassinate American citizens without due process.

The Bush signing statements are not, unfortunately, an aberrant chapter in modern American history. They were the excrescence of a process of executive expansion of power that continues even today.

Bush Signing Statements and Intelligence Briefings

History of Signing Statements (Sourcewatch)

Signing Statement for H.R. 2883, the "Intelligence Authorization Act for Fiscal Year 2002" (P.L. 107-108) [Dec. 28., 2001]

Today, I have signed into law H.R. 2883, the "Intelligence Authorization Act for Fiscal Year 2002." The Act authorizes appropriations to fund United States intelligence activities, including activities essential to success in the war against global terrorism. Regrettably, one provision of the Act falls short of the standards of comity and flexibility that should govern the relationship between the executive and legislative branches on sensitive intelligence matters and, in some circumstances, would fall short of constitutional standards.

Section 305 of the Act amends section 502 of the National Security Act of 1947, which relates to executive branch reports to the Congress under the intelligence oversight provisions of the National Security Act. Section 305 purports to require that reports submitted to the congressional intelligence committees by the executive branch on significant anticipated intelligence activities or significant intelligence failures always be in written form, with a concise statement of facts pertinent to the report and an explanation of the significance of the activity or failure.

Section 502 of the National Security Act as amended by section 305 of the Act shall be construed for all purposes, specifically including for the purpose of the establishment of standards and procedures under section 502(c) of the National Security Act by the Director of Central Intelligence, in a manner consistent with the President's constitutional authority 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 502 shall also be construed in a manner consistent with the statutory responsibility of the Director of Central Intelligence to protect intelligence sources and methods and other exceptionally sensitive matters.

Signing Statement for H.R. 3338, the "Department of Defense and Emergency Supplemental Appropriations for Recovery from and Response to Terrorist Attacks on the United States Act, 2002" (P.L. 107-117) [Jan. 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.

Signing Statement for H.R. 5010, the "Department of Defense Appropriations Act, 2003" (P.L. 107-248) [October 23, 2002]

Sections 8007 and 8111 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 of such initiation. 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 the advance notice contemplated by sections 8007 and 8111 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 8111 in a manner consistent with the constitutional authority of the President.

Signing Statement for H.R. 5011, the "Military Construction Appropriations Act, 2003" (P.L. 107-249) [October 23, 2002]

Sections 107, 110, and 113 of the Act provide for notice to the Congress of relocation of activities between military installations, initiation of a new installation abroad, or U.S. military exercises involving $100,000 in construction costs. 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 the notice 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 while protecting sensitive national security information. The executive branch shall construe these sections in a manner consistent with the President's constitutional authority.

Signing Statement for H.R. 2215, the "21st Century Department of Justice Appropriations Authorization Act" (P.L. 107-273) [November 4, 2002]

Section 202 of the Act adds a new section 530D to title 28, United States Code, that purports to impose on the executive branch substantial obligations for reporting to the Congress activities of the Department of Justice involving challenges to or nonenforcement of law that conflicts with the Constitution. The executive branch shall construe section 530D of title 28, and related provisions in section 202 of the Act, 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. To implement section 202(b)(3) of the Act, the Attorney General, on my behalf, shall advise the heads of executive agencies of the enactment of section 202 and of this direction concerning construction of that section and section 530D of title 28.

Signing Statement for H.R. 4628, the "Intelligence Authorization Act for Fiscal Year 2003" (P.L. 107-306) [November 27, 2002]

Many provisions of the Act, including section 342 and title VIII, establish new requirements for the executive branch to disclose sensitive information. As I have noted in signing last year's Intelligence Authorization Act and other similar legislation, the executive branch shall construe such provisions in a manner consistent with the President's constitutional authority 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.

Signing Statement for H.R. 4546, the "Bob Stump National Defense Authorization Act for Fiscal Year 2003" (P.L. 107-314)

[December 2, 2002]

A number of provisions of the Act establish new requirements for the executive branch to furnish sensitive information to the Congress on various subjects, including sections 221, 1043, 1065 (enacting 10 U.S.C. 127b(f)(2)(C)(ii) and (iii)), 1205, 1206, 1207, and 1209 (enacting section 722 of Public Law 104-293). The executive branch shall construe such provisions in a manner consistent with the President's constitutional authority to with-hold 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.

Signing Statement for H.R. 4664, the "National Science Foundation Authorization Act of 2002" (P.L. 107-368) [December 19, 2002]

Several provisions of the Act, including sections 14(a), 14(b) (amending section 201(a)(1) of the National Science Foundation Authorization Act of 1998), and 18(d) call for the submission by the executive branch of specified information or recommendations to the Congress. The executive branch shall construe such provisions in a manner consistent with the President's constitutional authority to supervise the unitary executive branch, to protect the deliberative processes of the Executive, and to submit to the Congress such recommendations as the President judges necessary and expedient.

Signing Statement for H.R. 2658, the "Department of Defense Appropriations Act, 2004" (P.L. 108-87) [October 1, 2003]

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.

Signing Statement for H.R. 3289, the "Emergency Supplemental Appropriations Act for Defense and for the Reconstruction of Iraq and Afghanistan, 2004'' (P.L. 108-106) [November 6, 2003]

Sections 1108 and 1113 of the Act prohibit the use of appropriated funds for certain activities unless the congressional defense committees receive advance notice. Although such advance notice can be provided in most situations as a matter of comity, situations may arise in which the President must act promptly pursuant to his constitutional responsibilities while protecting certain extraordinarily sensitive national security information. The executive branch shall construe these sections in a manner consistent with the constitutional authority of the
President to classify and control access to information bearing on the national security.

The Act incorrectly refers to the Coalition Provisional Authority (CPA) as if it were established pursuant to U.N. Security Council resolutions. The executive branch shall construe the provision to refer to the CPA as established under the laws of war for the occupation of Iraq.

Section 2203(b)(2)(C) requires executive agency heads to furnish certain reports to the chairman and ranking minority member of ``[e]ach committee that the head of the executive agency determines has legislative jurisdiction for the operations of such department or agency to which the information related.'' The executive branch shall, as a matter of comity and for the very narrow purpose of determining to whom an agency will submit the report under this provision, determine the legislative jurisdiction of congressional committees....

Title III of the Act creates an Inspector General (IG) of the CPA. Title III shall be construed in a manner consistent with the President's constitutional authorities to conduct the Nation's foreign affairs, to supervise the unitary executive branch, and as Commander in Chief of the Armed Forces. The CPA IG shall refrain from initiating, carrying out, or completing an audit or investigation, or from issuing a subpoena, which requires access to sensitive operation plans, intelligence matters, counterintelligence matters, ongoing criminal investigations by other administrative units of the Department of Defense related to national security, or other matters the disclosure of which would constitute a serious threat to national security. The Secretary of Defense may make exceptions to the foregoing direction in the public interest.

Provisions of the Act that require disclosure of information, including section 3001(h)(4)(B) of the Act, shall be construed in a manner consistent with the President's constitutional authority to withhold information that could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties.

Signing Statement for H.R. 1588, the National Defense Authorization Act for Fiscal Year 2004 (P.L. 108-136) [November 24, 2003]

Section 1442(b)(2)(C) requires executive agency heads to furnish certain reports to the chairman and ranking minority member of "[e]ach committee that the head of the executive agency determines has legislative jurisdiction for the operations of such department or agency to which the information relates." The executive branch shall, as a matter of comity and for the very narrow purpose of determining to whom a department or agency will submit a report under this provision, determine the legislative jurisdiction of congressional committees.

Signing Statement for H.R. 2417, the "Intelligence Authorization Act for Fiscal Year 2004" (P.L. 108-177) [December 13, 2003]

Many provisions of the Act, including section 106 and subtitle D of title III of the Act, seek to require the executive branch to furnish information to the Congress on various subjects. The executive branch shall construe the provisions in a manner consistent with the President's constitutional authority to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties....

Section 502 purports to place restrictions on use of the U.S. Armed Forces and other personnel in certain operations. The executive branch shall construe the restrictions -in section 502 as advisory in nature, so that the provisions are 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.

Example of Section 106:

SEC. 106. INCORPORATION OF REPORTING REQUIREMENTS.

(a) In General.--Each requirement to submit a report to the congressional intelligence committees that is included in the joint explanatory statement to accompany the conference report on the bill H.R. 2417 of the One Hundred Eighth Congress, or in the classified annex to this Act, is hereby incorporated into this Act, and is hereby made a requirement in law.
(b) Congressional Intelligence Committees Defined.--In this section, the term "congressional intelligence committees'' means--
(1) the Select Committee on Intelligence of the Senate; and
(2) the Permanent Select Committee on Intelligence of the House of Representatives.

Signing Statement for H.R. 4613, the "Department of Defense Appropriations Act, 2005" (P.L. 108-287) [August 5, 2004]

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.
The First of Two Signing Statements for H.R. 4200, the "Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005" (P.L. 108-375) [October 29, 2004]

The executive branch shall construe section 1021, purporting to place restrictions on the use of the U.S. Armed Forces in certain operations, and sections 1092 and 1205, relating to captured personnel and to contractor support personnel, in a manner consistent with the President's constitutional authority as Commander in Chief and to supervise the unitary executive branch.

Sec. 1021 USE OF FUNDS FOR UNIFIED COUNTERDRUG AND COUNTERTERRORIST CAMPAIGN IN COLOMBIA.
(c) Numerical Limitation on Assignment of United States Personnel.--
Notwithstanding section 3204(b) of the Emergency Supplemental Act, 2000 (Division B of Public Law 106-246; 114 Stat. 575), as amended by the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2002 (Public Law 107-115; 115 Stat. 2131), the number of United States personnel assigned to conduct activities in Colombia in connection with support of Plan Colombia under subsection (a) in fiscal years 2005 and 2006 shall be subject to the following limitations:

(1) The number of United States military personnel assigned for temporary or permanent duty in Colombia in connection with support of Plan Colombia may not exceed 800.
(2) The number of United States individual citizens retained as contractors in Colombia in connection with support of Plan Colombia who are funded by Federal funds may not exceed 600.

(d) Limitation on Participation of United States Personnel.--No United States Armed Forces personnel, United States civilian employees, or United States civilian contractor personnel employed by the United States may participate in any combat operation in connection with assistance using funds pursuant to the authority in subsection (a), except for the purpose of acting in self defense or of rescuing any United States citizen, including any United States Armed Forces personnel, United States civilian employee, or civilian contractor employed by the United States.

A number of provisions of the Act, including sections 112(b)(6), 213(c), 513(e)(1), 912(d), 1021(f), 1022(b), 1042, 1047, 1202, 1204, 1207(c) and (d)(2), 1208, 1214, and 3166(a) amending section 3624 in Public Law 106-398, call for the executive branch to furnish information to the Congress, a legislative agent, or other entities on various subjects. The executive branch shall construe such provisions in a manner consistent with the President's constitutional authority to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties.

Signing Statement for S. 2845, the "Intelligence Reform and Terrorism Prevention Act of 2004" (P.L. 108-458) [December 17, 2004]

The executive branch shall construe provisions in the Act that mandate submission of information to the Congress, entities within or outside the executive branch, or the public, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information that could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties. Such provisions include sections 1022, 1061, 3001(f)(4), 5201, 5403(e), and 8403, and sections 101A(f) and 102A(c)(7) of the National Security Act of 1947 as amended by sections 1011 and 1031, section 703(b), 704, and 706(f) of the Public Interest Declassification Act of 2000 as amended by section 1102, section 601 of the Foreign Intelligence Surveillance Act of 1978 as amended by section 6002, section 207 of the Afghan Freedom Support Act of 2002 as amended by section 7104, section 112(b) of title 1, United States Code, as amended by section 7120, and section 878 of the Homeland Security Act as amended by section 7407.

101A(f) Recommendations to Congress.--Any member of the Joint
Intelligence Community Council may make such recommendations to Congress
relating to the intelligence community as such member considers
appropriate.''.

Signing Statement for H.R. 4548, the "Intelligence Authorization Act for Fiscal Year 2005" (P.L. 108-487) [December 23, 2005]

The executive branch shall construe provisions in the Act, including sections 105, 107, and 305, that mandate submission of information to the Congress, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information that could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties.

Section 502 of the Act purports to place restrictions on use of the U.S. Armed Forces and other personnel in certain operations. The executive branch shall construe the restrictions in that section as advisory in nature, so that the provisions are 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.

Signing Statement for H.R. 4986, the "National Defense Authorization Act for Fiscal Year 2008" [January 28, 2008]

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.

Note: 841 set up a "commission on wartime contracting", appointed by members of Congress, including coverage for "Federal agency contracting for the performance of security functions in Iraq and Afghanistan.

846 set up greater protections for whistleblowers working for contractors.

SEC. 1079. COMMUNICATIONS WITH THE COMMITTEES ON ARMED SERVICES OF THE SENATE AND THE HOUSE OF REPRESENTATIVES.

(a) NOTE: Deadline. Reports. 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.

1222 forbid the use of funds for any permanent military installations in Iraq, or to exercise any U.S. control over the oil resources of Iraq.

Signing Statement for H.R. 2863, the "Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006" (P.L. 109-148) [December 30, 2005] [covers signing statement for Detainee Treatment Act of 2005]

Sections 8007, 8011, and 8093 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 8093 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 these sections in a manner consistent with the constitutional authority of the President....

The executive branch shall construe Title X in Division A of the Act [Detainee Treatment Act of 2005], relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action. Finally, given the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005.