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President aims to nullify new USAPA reporting requirements via signing statement

Today, the Government Printing office announced the availability of H.R. 3199 (USA PATRIOT Improvement and Reauthorization Act of 2005) through GPO Access. Also available through GPO Access was President Bush’s “Statement on Signing” this piece of legislation, as reported by the March 13, 2006 issue of Weekly Compilation of Presidential Documents. Taken together, the new law and the President’s signing statement paint a disturbing yet familar picture — The President clearly intends to ignore language in the PATRIOT Act reauthorization intended to keep Congress informed of the Administration’s use of the Act.

Here is the President’s signing statement in full (bolding mine):

Statement on Signing the USA PATRIOT Improvement and Reauthorization Act
of 2005

March 9, 2006

Today, I have signed into law H.R. 3199, the “USA PATRIOT Improvement and Reauthorization Act of 2005,” and then S. 2271, the “USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006.” The bills will help us continue to fight terrorism effectively and to combat the use of the illegal drug methamphetamine that is ruining too many lives.
The executive branch shall construe the provisions of H.R. 3199 that call for furnishing information to entities outside the executive branch, such as sections 106A and 119, in a manner consistent with the President’s constitutional authority to supervise the unitary executive branch and 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.
The executive branch shall construe section 756(e)(2) of H.R. 3199, which calls for an executive branch official to submit to the Congress recommendations for legislative action, in a manner consistent with the President’s constitutional authority to supervise the unitary executive branch and to recommend for the consideration of the Congress such measures as he judges necessary and expedient.

George W. Bush
The White House,
March 9, 2006.

Observers across the political spectrum generally agree that the phrase “manner consistent with the President’s constitutional authority to supervise the unitary executive branch” means that the President believes that Congress did not have authority to legislate in this area and intends to ignore the Congressional directive contained in statute.

So, what do sections 106A, 119, and 756(e)(2) do? They simply ask for information to be provided Congressional committees for oversight purposes. While reading over the sections below, please note the minimal disclosure required by the law – not to the public, not even to the full Congress, but simply to Congressional committees charged with the oversight of the department charged with carrying this law. But the President apparrently feels his executive should simply have authority without accountability.

Here is the information the President doesn’t want two Congressional committees to see:

Sec. 106A. Audit on access to certain business records for foreign intelligence purposes.

(a) Audit.–The Inspector General of the Department of Justice shall perform a comprehensive audit of the effectiveness and use, including any improper or illegal use, of the investigative authority provided to the Federal Bureau of Investigation under title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.).
(b) Requirements.–The audit required under subsection (a) shall include–
(1) an examination of each instance in which the Attorney General, any other officer, employee, or agent of the Department of Justice, the Director of the Federal Bureau of Investigation, or a designee of the Director, submitted an application to the Foreign Intelligence Surveillance Court (as such term is defined in section 301(3) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1821(3))) for an order under section 501 of such Act during the calendar years of 2002 through 2006, including–
(A) whether the Federal Bureau of Investigation requested that the Department of Justice submit an application and the request was not submitted to the court (including an examination of the basis for not submitting the application);
(B) whether the court granted, modified, or denied the application (including an examination of the basis for any modification or denial);
(2) the justification for the failure of the Attorney General to issue implementing procedures governing requests for the production of tangible things under such section in a timely fashion, including whether such delay harmed national security;
(3) whether bureaucratic or procedural impediments to the use of such requests for production prevent the Federal Bureau of Investigation from taking full advantage of the authorities provided under section 501 of such Act;
(4) any noteworthy facts or circumstances relating to orders under such section, including any improper or illegal use of the authority provided under such section; and
(5) an examination of the effectiveness of such section as an investigative tool, including–
(A) the categories of records obtained and the importance of the information acquired to the intelligence activities of the Federal Bureau of Investigation or any other Department or agency of the Federal Government;
(B) the manner in which such information is collected, retained, analyzed, and disseminated by the Federal Bureau of Investigation, including any direct access to such information (such as access to “raw data”) provided to any other Department, agency, or instrumentality of Federal, State, local, or tribal governments or any private sector entity;
(C) with respect to calendar year 2006, an examination of the minimization procedures adopted by the Attorney General under section 501(g) of such Act and whether such minimization procedures protect the constitutional rights of United States persons;
(D) whether, and how often, the Federal Bureau of Investigation utilized information acquired pursuant to an order under section 501 of such Act to produce an analytical intelligence product for distribution within the Federal Bureau of Investigation, to the intelligence community (as such term is defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))), or to other Federal, State, local, or tribal government Departments, agencies, or instrumentalities;
and(E) whether, and how often, the Federal Bureau of Investigation provided such information to law enforcement authorities for use in criminal proceedings.
(c) Submission Dates.–
(1) Prior years.–Not later than one year after the date of the enactment of this Act, or upon completion of the audit under this section for calendar years 2002, 2003, and 2004, whichever is earlier, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select Committee on Intelligence of the Senate a report containing the results of the audit conducted under this section for calendar years 2002, 2003, and
2004.
(2) Calendar years 2005 and 2006.–Not later than December 31, 2007, or upon completion of the audit under this section for calendar years 2005 and 2006, whichever is earlier, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select Committee on Intelligence of the Senate a report containing the results of the audit conducted under this section for calendar years 2005 and 2006.
(d) Prior Notice to Attorney General and Director of National Intelligence; Comments.–
(1) Notice.–Not less than 30 days before the submission of a report under subsection (c)(1) or (c)(2), the Inspector General of the Department of Justice shall provide such report to the Attorney General and the Director of National Intelligence.
(2) Comments.–The Attorney General or the Director of National Intelligence may provide comments to be included in the reports submitted under subsections (c)(1) and (c)(2) as the Attorney General or the Director of National Intelligence may consider necessary.
(e) Unclassified Form.–The reports submitted under subsections (c)(1) and (c)(2) and any comments included under subsection (d)(2) shall be in unclassified form, but may include a classified annex.

——————–
Sec. 109. Enhanced congressional oversight.

a) Emergency Physical Searches.–Section 306 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1826) is amended–
(1) in the first sentence, by inserting “, and the Committee on the Judiciary of the Senate,” after “the Senate”;
(2) in the second sentence, by striking “and the Committees on the Judiciary of the House of Representatives and the Senate” and inserting “and the Committee on the Judiciary of the House of Representatives”;
(3) in paragraph (2), by striking “and” at the end;
(4) in paragraph (3), by striking the period at the end and inserting “; and”; and
(5) by adding at the end the following:
“(4) the total number of emergency physical searches authorized by the Attorney General under section 304(e) and the total number of subsequent orders approving or denying such physical searches.”.
(b) Emergency Pen Registers and Trap and Trace Devices.–Section 406(b) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1846(b)) is amended–
(1) in paragraph (1), by striking “and” at the end;
(2) in paragraph (2), by striking the period at the end and inserting “; and”; and
(3) by adding at the end the following:
“(3) the total number of pen registers and trap and trace devices whose installation and use was authorized by the Attorney General on an emergency basis under section 403, and the total number of subsequent orders approving or denying the installation and use of such pen registers and trap and trace devices.”.
(c) Additional Report.–At the beginning and midpoint of each fiscal year, the Secretary of Homeland Security shall submit to the Committees on the Judiciary of the House of Representatives and the
Senate, a written report providing a description of internal affairs operations at U.S. Citizenship and Immigration Services, including the general state of such operations and a detailed description of investigations that are being conducted (or that were conducted during the previous six months) and the resources devoted to such investigations. The first such report shall be submitted not later than April 1, 2006.
(d) Rules and Procedures for FISA Courts.–Section 103 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803) is amended by adding at the end the following:
“(f)(1) The courts established pursuant to subsections (a) and (b) may establish such rules and procedures, and take such actions, as are reasonably necessary to administer their responsibilities under this Act.
“(2) The rules and procedures established under paragraph (1), and any modifications of such rules and procedures, shall be recorded, and shall be transmitted to the following:
“(A) All of the judges on the court established pursuant to subsection (a).
“(B) All of the judges on the court of review established pursuant to subsection (b).
“(C) The Chief Justice of the United States.
“(D) The Committee on the Judiciary of the Senate.
“(E) The Select Committee on Intelligence of the Senate.
“(F) The Committee on the Judiciary of the House of Representatives.
“(G) The Permanent Select Committee on Intelligence of the House of Representatives.
“(3) The transmissions required by paragraph (2) shall be submitted in unclassified form, but may include a classified annex.”.

———————-
Sec. 756. Authority to award competitive grants to address methamphetamine use by pregnant and parenting women offenders.

(e) Performance Accountability; Reports and Evaluations.–
(1) Reports.–Successful applicants shall submit to the Attorney General a report on the activities carried out under the grant at the end of each fiscal year.
(2) Evaluations.–Not later than 12 months at the end of the 3 year funding cycle under this section, the Attorney General shall submit a report to the appropriate committees of jurisdiction that summarizes the results of the evaluations conducted by recipients
and recommendations for further legislative action.

To me, this signing statement represents just what James Madison had in mind when he said:

A popular Government without popular information or the means of acquiring it, is but a Prologue to a Farce or a Tragedy or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors, must arm themselves with the power knowledge gives.

Ideally some way should be found to force this reporting, or to have the Supreme Court review the law for its Constitutionality. Failing that, at the very least the President should be required to spell out what information he is willing to provide. Then Congress could gauge his future trustworthiness when considering new powers.

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