Trump Objects to Legislated Limits on Secrecy
In the new Consolidated Appropriations Act of 2017 (section 8009), Congress mandated that no new, highly classified special access programs may be created without 30 day advance notice to the congressional defense committees.
But in signing the bill into law last Friday, President Trump said he would not be bound by that restriction.
“Although I expect to be able to provide the advance notice contemplated by section 8009 in most situations as a matter of comity, situations may arise in which I must act promptly while protecting certain extraordinarily sensitive national security information. In these situations, I will treat these sections in a manner consistent with my constitutional authorities, including as Commander in Chief,” he wrote in a May 5 signing statement.
More generally, Trump suggested that his power to classify national security information is altogether independent of Congress. “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,” he wrote.
This is a paraphrase of language in the 1988 US Supreme Court opinion in Department of the Navy v. Egan (The President’s “authority to classify and control access to information bearing on national security… flows primarily from this Constitutional investment of power in the President and exists quite apart from any explicit congressional grant.”)
But left unsaid in President Trump’s signing statement was that the Supreme Court has also held that Congress could modify existing classification procedures or create its own secrecy system.
Thus, in EPA v. Mink (1973), the Supreme Court stated: “Congress could certainly have provided that the Executive Branch adopt new [classification] procedures, or it could have established its own procedures — subject only to whatever limitations the Executive privilege may be held to impose upon such congressional ordering.”
And, as noted by Jennifer Elsea, Congress has in fact legislated a classification regime for nuclear weapons-related information in the Atomic Energy Act.
So the newly legislated notification requirements concerning special access programs appear to be well within the constitutional authority and power of Congress.
The Intelligence Authorization Act for FY 2017 was incorporated into the Consolidated Appropriations Act as “Division N” and enacted into law.
President Trump’s reservations about various provisions in the new appropriations act were presented in the first signing statement issued by the current Administration (h/t Charlie Savage).
The FAS Nuclear Notebook is one of the most widely sourced reference materials worldwide for reliable information about the status of nuclear weapons, and has been published in the Bulletin of the Atomic Scientists since 1987.. The Nuclear Notebook is researched and written by the staff of the Federation of American Scientists’ Nuclear Information Project: Director Hans […]
On 14 April 2023, the Belarusian Ministry of Defence released a short video of a Su-25 pilot explaining his new role in delivering “special [nuclear] munitions” following his training in Russia. The features seen in the video, as well as several other open-source clues, suggest that Lida Air Base––located only 40 kilometers from the Lithuanian border and the […]
A photo in a Los Alamos National Laboratory (LANL) student briefing from 2022 shows four people inspecting what appears to be a damaged B61 nuclear bomb.
In early-February 2023, the Wall Street Journal reported that U.S. Strategic Command (STRATCOM) had informed Congress that China now has more launchers for Intercontinental Ballistic Missiles (ICBMs) than the United States. The report is the latest in a serious of revelations over the past four years about China’s growing nuclear weapons arsenal and the deepening […]