In the Department of Defense authorization
legislative signing statement issued on October 5, 1999 by the White
House, President Clinton announced that he would not comply with
certain sections of the National Defense Authorization Act for Fiscal
Year 2000 dealing with nuclear laboratory security:
The most troubling features of the Act involve the reorganization
of the nuclear defense functions within the Department of Energy
Particularly objectionable are features of the legislative charter
of the new National Nuclear Security Administration (NNSA) that
purport to isolate personnel and contractors of the NNSA from
outside direction, and limit the Secretary's ability to employ
his authorities to direct both personally and through subordinates
of his own choosing -- the activities and personnel of the NNSA.
Unaddressed, these deficiencies of the Act would impair effective
health and safety oversight and program direction of the Department's
nuclear defense complex. Other provisions of S. 1059 have been
faulted by the Attorneys General of over 40 States as placing
in question the established duty of the Department of Energy's
nuclear defense complex to comply with the procedural and substantive
requirements of environmental laws. Moreover, the Act removes
from the Secretary his direct authority over certain extremely
sensitive classified programs specified in the Atomic Energy Act,
and establishes in the NNSA separate support functions
such as contracting, personnel, public affairs, and legal
that are redundant with those now within the Department. This
redundancy even extends to the counterintelligence office reporting
directly to the Secretary that was established in accordance with
my Presidential Decision Directive 61, and which was designed
to be the single authoritative source of counter-intelligence
guidance throughout the Department. The Act establishes a companion
counterintelligence entity within the NNSA, compounding simple
redundancy with the blurring of lines of authority that can too
readily result because the NNSA is largely immunized from outside
direction within the Department. Experience teaches that these
are not abstract deficiencies. As the Hoover Commission concluded
half a century ago, the accountability of a Cabinet Department
head is not complete without the legal authority to meet the legal
responsibilities for which that person is accountable. The Act's
provisions summarized above skew that authority. These provisions
blur the clear and unambiguous lines of authority intended by
Presidential Decision Directive 61, and impair the Secretary of
Energy's ability to assure compliance at all levels within the
Department of Energy with instructions he may receive in meeting
his national defense responsibilities under the Atomic Energy
Act. The responsibilities placed by S. 1059 in the National Nuclear
Security Administration potentially are of the most significant
breadth, and the extent of the Secretary of Energy's authority
with respect to those responsibilities is placed in doubt by various
provisions of the Act.
Therefore, by this Statement I direct and state the following:
1. Until further notice, the Secretary of Energy shall perform
all duties and functions of the Under Secretary for Nuclear Security.
2. The Secretary is instructed to guide and direct all personnel
of the National Nuclear Security Administration by using his authority,
to the extent permissible by law, to assign any Departmental officer
or employee to a concurrent office within the NNSA. 3. The Secretary
is further directed to carry out the foregoing instructions in
a manner that assures the Act is not asserted as having altered
the environmental compliance requirements, both procedural and
substantive, previously imposed by Federal law on all the Department's
activities. 4. In carrying out these instructions, the Secretary
shall, to the extent permissible under law, mitigate the risks
to clear chain of command presented by the Act's establishment
of other redundant functions by the NNSA. He shall also carry
out these instructions to enable research entities, other than
those of the Department's nuclear defense complex that fund research
by the weapons laboratories, to continue to govern conduct of
the research they have commissioned. 5. I direct the Director
of the Office of Personnel Management to work expeditiously with
the Secretary of Energy to facilitate any administrative actions
that may be necessary to enable the Secretary to carry out the
instructions in this Statement. The expansive national security
responsibilities now apparently contemplated by the Act for the
new Under Secretary for Nuclear Security make selection of a nominee
an especially weighty judgment. Legislative action by the Congress
to remedy the deficiencies described above and to harmonize the
Secretary of Energy's authorities with those of the new Under
Secretary that will be in charge of the NNSA will help identify
an appropriately qualified nominee. The actions directed in this
Statement shall remain in force, to continue until further notice.
As the Wall Street Journal noted, this was
not the first time the Clinton administration has failed to follow
explicit statutory language. In 1993, Department of Education attorneys
instructed officials to ignore the word "shall" in a statute
requiring the department to set student loan interest rates at the
level charged by private banks. To do so would, in the words of
a department lawyer, frustrate the statutory purpose of the direct
loan program.
House Armed Services Chairman Floyd Spence
sent a letter to President Clinton stating that the signing statement
undermined the administration's credibility in handling nuclear
secrets and would be met with resistance in Congress. Spence indicated
that he would attempt to create a fully autonomous agency at the
Department of Energy instead of the semi-autonomous one established
in the defense bill.
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