Administration to Bypass Reporting Law

Administration to Bypass Reporting Law
By Charlie Savage | NYTimes.com

The Bush administration has informed Congress that it is bypassing a law intended to forbid political interference with reports to lawmakers by the Department of Homeland Security.

The August 2007 law requires the agency’s chief privacy officer to report each year about Homeland Security activities that affect privacy, and requires that the reports be submitted directly to Congress “without any prior comment or amendment” by superiors at the department or the White House.

But newly disclosed documents show that the Justice Department issued a legal opinion last January questioning the basis for that restriction, and that Michael Chertoff, the homeland security secretary, later advised Congress that the administration would not “apply this provision strictly” because it infringed on the president’s powers.

Several members of Congress reacted with outrage to the administration’s claim, which was detailed in a memorandum posted this week on the Web site of the Office of Legal Counsel at the Justice Department.

Senator Arlen Specter of Pennsylvania, the ranking Republican on the Senate Judiciary Committee, called the move “unconstitutional.” He said Mr. Bush should have vetoed the bill if he did not like the provision, and compared the situation to Mr. Bush’s frequent use of signing statements to reserve a right to bypass newly enacted laws.

“This is a dictatorial, after-the-fact pronouncement by him in line with a lot of other cherry-picking he’s done on the signing statements,” Mr. Specter said in a telephone interview. He added, “To put it differently, I don’t like it worth a damn.”

The Bush administration defended the decision not to obey the statute. Erik Ablin, a Justice Department spokesman, said its legal view was consistent with what presidents of both parties had long maintained.

Mr. Ablin also said the administration had told Congress that the provision would be unconstitutional, but Congress passed the legislation — which enacted recommendations of the 9/11 Commission — without making the requested change. So the administration decided to sign the bill and fix what Mr. Ablin called its “defects” later.

The letter that Mr. Chertoff sent to Congress in March was addressed or copied to 10 Congressional leaders. But it was not publicly disclosed and received no press coverage. It is not clear how many lawmakers saw it.

In an apparent coincidence, the Homeland Security Department’s privacy officer, Hugo Teufel III, issued his annual privacy report on Friday. It said there were 4,184 privacy complaints over a recent six-month period, but gave few details about them.

The Department of Homeland Security declined to make Mr. Teufel available for an interview or to say whether administration officials had edited his report.

“We are not able to comment on this specific report,” said Laura C. Keehner, the department press secretary. She added that the department’s activities to date had complied with the Office of Legal Counsel opinion and the Constitution.

A spokeswoman for Representative Bennie Thompson, Democrat of Mississippi and chairman of the House Homeland Security Committee, said he would write a letter Monday to the department questioning the process by which the report was made.

The Supreme Court has never ruled on whether Congress can pass a law that puts an executive branch official beyond the control of the president when it comes to giving information to oversight committees.

The court has, however, upheld statutes that gave regulatory agencies and prosecutors independence from presidential control. The Justice Department memorandum issued in January said that those precedents covered different kinds of situations and so did not apply, and that the restrictions Congress sought to impose on the reports by the Homeland Security Department privacy officer “must yield to the extent their application would interfere with the president’s constitutional authority to comment upon or amend” any information provided to Congress.

Several law professors said the administration’s legal theory went too far.

Neil Kinkopf, a law professor at Georgia State University who worked in the Office of Legal Counsel during the Clinton administration, called the opinion an example of the administration’s expansive theories of executive power “run amok.”

Peter Strauss, a Columbia University law professor, said the 2007 law was valid because the president is not the “exclusive” source of communication with Congress.

In the Justice Department memorandum, however, Steven G. Bradbury, the principal deputy assistant attorney general and head of the Office of Legal Counsel, argued that presidents of both parties had long objected to bills that would infringe on their ability to control executive branch officials or to protect against the unauthorized disclosure of information to Congress.

“Such interference is impermissible regardless of its purported oversight or other justifications,” Mr. Bradbury wrote.

The Office of Legal Counsel interprets the law for the executive branch, often ruling on issues that are difficult to get before a court. Its opinions are often secret. Under Mr. Bush, the office has come under criticism as using aggressive legal arguments to provide legal cover for bypassing statutes that inhibited White House policies, including harsh interrogations and sending taxpayer dollars to religious groups.