When Congress passed the 1991 military spending bill last week, it imposed little-noticed but significant new restrictions on the president's power to spend billions of dollars on classified programs. While public attention focused on spending for "Star Wars" and the B-2 bomber, legislators and administration officials were struggling over a section of the bill that requires the administration to use money earmarked for secret programs precisely as Congress prescribes.
At stake is control over a "black budget" of more than $35-billion hidden in the military spending bill for numerous secret weapons programs and intelligence activities.
To provide money for such programs while keeping the amounts secret, Congress every year buries the funds in the military budget. Outsiders who have scrutinized the Air Force budget, for example, say more than $3-billion is hidden away for the National Reconnaissance Office, which is responsible for developing, launching and controlling spy satellites.
In the past, Congress has attached classified reports to military appropriations saying how this secret money should be spent. But the administration has treated the instructions in these classified "annexes" as mere expressions of congressional wishes rather than actual law.
Lawmakers said there were several major disputes this year over the administration's refusal to comply with secret directives from congressional committees on appropriations, armed services and intelligence.
For example, they said, the Defense Department refused to spend millions of dollars appropriated by Congress for strategic communications and reconnaissance programs and flouted congressional instructions on the SR-71 Blackbird spy plane; the CIA challenged congressional restrictions on spending for certain covert foreign operations.
President Bush, Defense Secretary Dick Cheney and at least one Air Force general told Congress they were not required to comply with such directives because the restrictions were not in the statute itself and therefore did not have the force of law.
Last week, just before it adjourned, Congress adopted restrictions on use of federal money for clandestine military and intelligence programs, and it said the restrictions "shall have the force and effect of law."
When the bill is signed by Bush, the restrictions will be legally binding on federal employees, and Congress can monitor compliance through committees that oversee the Pentagon and the intelligence agencies.
The Pentagon is not happy with this new arrangement. In a letter Oct. 18, Terrence O'Donnell, general counsel of the Defense Department, complained that Congress was enacting "secret law without debate, comment and consultation." On Oct. 12, the administration said it could not comment on the substance of the classified annex because it was not allowed to see it.
Sen. Robert Byrd, chairman of the Appropriations Committee, said the restrictions were incorporated into the spending bill this year, for the first time, to ensure that the will of Congress would be obeyed when the administration spent "tens of billions of dollars" for foreign intelligence and military programs.
The administration "ignored or challenged" such restrictions when they were in reports, said Byrd, a zealous defender of congressional prerogatives. Lawmakers say that when the administration disregards Congress' wishes, it typically postpones decisions on how to spend the money instead, then redirects spending to other secret programs.
A new book on the government's secret spending, Blank Check: The Pentagon's Black Budget, by Tim Weiner, says the classified budget for weapons and foreign intelligence came to $36-billion in 1989. That is more than the current budget of the Department of Transportation, Education, Labor or Veterans Affairs.
Sen. Daniel Inouye, the Hawaii Democrat who is chairman of the Appropriations subcommittee responsible for the Pentagon budget, said the decision to incorporate the classified annex into a law was important because it would now be binding on military and intelligence agencies.
Moreover, he said, "it is a significant departure from the way we have in the past conveyed congressional direction with respect to classified intelligence programs and the so-called black or special-access procurement programs."
Byrd, D-W.Va., said "fundamental constitutional and institutional questions" were at stake: "In particular, will the checks and balances as they now are in place between the two branches have equal relevance and force in relation to the highly classified agencies, budgets and programs that have grown in the last several decades?"
The new statutory restrictions are another chapter in the annals of secret law, which date to 1811, when President James Madison covertly signed two bills giving him money and authority to seize Florida from Spain. The laws were not published until 1818.
When Bush signed the 1990 military appropriations bill on Nov. 21, 1989, he expressed concern about restrictions that Congress tried to impose through a classified report on the bill. "Congress cannot create legal obligations through report language," he insisted.
Lawmakers defended their decision to write secret law, saying it was less dangerous than allowing the executive branch to disregard directions from Congress on the spending of billions of dollars.
Byrd compared the situation to the long-running feud between Congress and the executive branch over the line-item veto, the authority to reject a single item in a bill.
Under the Constitution, the president has no such power; he must accept or reject the entire bill, which may regulate spending in hundreds of diverse accounts.
To let the president disregard classified annexes, Byrd said, would be to give him "a de facto line-item veto" over "the entirety of the intelligence programs and special-access programs in the United States.
"This would constitute a sweeping abdication of authority of the Congress in areas which are central and critical to the national security," the senator added.