Bush Administration to violate law on DHS reports

WASHINGTON — 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.

Administration told Congress it will skirt law on agency reports
Last updated October 24, 2008 11:40 p.m. PT
By CHARLIE SAVAGE
THE NEW YORK TIMES

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 in 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.

Sen. Arlen Specter of Pennsylvania, the ranking Republican on the Senate Judiciary Committee, called the move "unconstitutional." He said Bush should have vetoed the bill if he did not like the provision, and compared the situation with 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," 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.

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 Ablin called its "defects" later.

The letter that Chertoff sent to Congress in March was addressed or copied to 10 congressional leaders. But it was not publicly disclosed and received no coverage by news media.

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.

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

A spokeswoman for Rep. Bennie Thompson, D-Miss., 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.

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