The Black Budget: The Crossroads of (Un)Constitutional Appropriations and Reporting

Solari Report – by Catherine Fitts

The $52.6 billion “black budget” for fiscal 2013, obtained by The Washington Post from former intelligence contractor Edward Snowden, maps a bureaucratic and operational landscape that has never been subject to public scrutiny. Although the government has annually released its overall level of intelligence spending since 2007, it has not divulged how it uses the money or how it performs against the goals set by the president and Congress. (Gellman, Barton and Miller, Greg, U.S. spy network’s successes, failures and objectives detailed in ‘black budget’ summary, Washington Post (08/31/2013) available at https://cyber-peace.org/wp-content/uploads/2013/06/%E2%80%98Black-budget%E2%80%99-summary-details-U.S.pdf).

Table of Contents

I. The Strengths and Weaknesses of the Power of the Purse
II. What is the Black Budget?
III. The Origins of the Black Budget
A. Introducing the 1947 National Security Act
B. Introducing the 1949 CIA Act
C. Private Contractor Reporting Requirements
D. Action Increasing Government Oversight of the Black Budget
IV. The Black Budget and the Constitution–Is it Legal?
V. About Us

I. The Strengths and Weaknesses of the Power of the Purse

When created, the Constitution handed the Power of the Purse to Congress and–by extension–the people that Congress represents. The thought was that the surest check on a government came through control of its finances. However, the strongest check is useless without both a means by which to wield it and the understanding of how and where to do so. This idea is the underpinnings of the Appropriations Clause and Statements and Accounts Clause of the Constitution. These elements of the Constitution are the means by which Congress, in theory, applies and guides the sword that is the Power of the Purse–arguably the strongest power of the people. (see The Appropriations Clause: A History of the Constitution’s (As of Yet) Underused Clause , available at https://constitution.solari.com/the-appropriations-clause-a-history-of-the-constitutions-as-of-yet-underused-clause/)(citing Gary Kepplinger, The Heritage Guide to the Constitution: Appropriations Clause, available at http://www.heritage.org/constitution/#!/articles/1/essays/67/appropriations-clause.)

The Appropriations Clause requires Congress to give the say so on government spending by appropriating funds for a project through legislative action, often including restrictions on how the funds are to be spent, before the Executive branch can spend money. The Statements and Accounts Clause requires the government to provide, from time to time, an accounting of how they spend your money. The idea is that this allows Congress, theoretically your representative in government, to control how and where money is spent. The reporting requirements gives a more immediate accounting to the public of what was done with their taxes–at least this is the theory. (see id. available at https://constitution.solari.com/the-appropriations-clause-a-history-of-the-constitutions-as-of-yet-underused-clause/)

Unfortunately, the reality is that there are quite a few loopholes and issues that undermine the value of the Appropriations Clause and often render the reporting requirements of the Statements and Accounts Clause virtually useless. Congress itself has nearly full control of what they consider appropriate under these two clauses. As we’ve discussed in previous articles, they often substantially undermine their Appropriations powers by writing virtual blank checks to the executive. There are also quite a few statutes which have undermined the Appropriations powers by allowing the Executive branch and agencies greater freedom to shift around funds under Congress’ nose. (see id.)

When it comes to the Statements and Accounts Clause, Congress has made valiant legislative efforts to improve the numerous flaws with their current accounting practices. However, a combination of a lack of enforcement mechanisms included in their legislation, failure to enforce through other means, and an extreme lack of effort on the parts of some executive agencies to comply with the accounting legislation (especially the Department of Defense and the Department of Housing and Urban Development), have rendered the lion’s share of government financial reporting virtually useless to the public and Congress’ decision making process. (see The U.S. Statutes Creating Modern Constitutional Financial Management and Reporting Requirements and the Government’s Failure to Follow Them, available at https://constitution.solari.com/the-u-s-statutes-creating-modern-constitutional-financial-management-and-reporting-requirements-and-the-governments-failure-to-follow-them/)

These issues are ongoing and need close examination from both the public, local governments, and Congress itself. As it is, lapses in reporting have allowed for $21 trillion in unaccounted funds from just the DoD and HUD. That’s just accounting for the period between 1998 and 2015–an amount larger than the current national debt in under two decades. ( DoD and HUD Missing Money: Supporting Documentation, available at https://missingmoney.solari.com/dod-and-hud-missing-money-supporting-documentation/) There are wide reaching issues here and each of them is incredibly important to fiscal health of the U.S. and upholding the intent of the Constitution.

If $21 trillion can go missing in the sunshine, who knows how much goes missing when these reporting and appropriations provisions are loosened or removed. At the crossroads where all these Constitutional issues meet is appropriations for and fiscal reporting–or complete lack thereof–of programs such as the National Intelligence Program (NIP), the DoD’s Military Intelligence Program (MIP) and similar programs. The MIP is a program created in 2005 by the DoD and has all intelligence programs supporting the U.S. government under its umbrella. These programs, taken together, are colloquially known by the fairly theatrical term–“the Black Budget.”

II. What is the Black Budget?

Put simply, the Black Budget refers to the government budget set aside for secret operations such as military research projects, covert operations, and the like. Off the bat, this surely sounds like the realms of a Tom Clancy novel. The term was originally coined in a 2013 Washington Post article discussing a copy of the budget–leaked by Edward Snowden–for funds allocated to the CIA, NIP, MIP, and other spying projects. (Gellman, Barton and Miller, Greg, U.S. spy network’s successes, failures and objectives detailed in ‘black budget’ summary, Washington Post (08/31/2013) available at https://cyber-peace.org/wp-content/uploads/2013/06/%E2%80%98Black-budget%E2%80%99-summary-details-U.S.pdf). However, the fundamental issues with this Black Budget deal with accounting and Constitutional issues. This is money with very little to no appropriations or reporting requirements as would normally be required by the Constitution.

The reasoning behind this is fairly obvious, there is a certain amount of logical need for confidentiality when it comes to covert operations, assets, and their funding. If not, we’d call them overt operations. However, this is no small amount of funds we are talking about. In 2015, the NIP requested a budget of $45.6B and the MIP requested $13.3B. (Intelligence Budget Data, available at https://fas.org/irp/budget/) The final numbers NIP and the MIP combined have floated around $70-80B per year for the last decade. (id.) That’s more than the entire GPD of Guatemala every single year. (List of Countries by Projected GDP, available at http://statisticstimes.com/economy/countries-by-projected-gdp.php).

Just getting a exact total number for these budget requests can be a bit difficult, you can imagine how little there is on specifics within the budget requests. Very rarely, the name of a program is included within the copies of the budget requests provided to the public but certainly not the amount requested for the project–never mind any more specific breakdown of how funds are to be used. (FY 2016 Congressional Justification Book, available at https://fas.org/irp/budget/mip-fy2016.pdf (provided in response to a FOIA request).

A FOIA request is capable of receiving a copy of the unclassified portions of these Black Budget accountings. However, the emphasis in that sentence should be heavily on unclassified. (id.) A 2016 FOIA request on the Black Budget responded with 178 pages with not a single number included within–not even the total amount requested. It is just page after page of blank charts. (id.) The information within was all withheld pursuant to the FOIA exemptions for national security interests (5 U.S.C. § 552(b)(l)), the statutory exemption created to FOIA for unclassified technical data for space or military application (5 U.S.C. § 552(b)(3) referring to 10 U.S.C. § 130, available at https://www.law.cornell.edu/uscode/text/5/552b), and Executive Order 13526 (available at https://www.archives.gov/isoo/policy-documents/cnsi-eo.html) which is an Obama-era order on the handling of classified materials. (FY 2016 Congressional Justification Book, available at https://fas.org/irp/budget/mip-fy2016.pdf) Thus, the result of blank page on blank page prefaced with a short discussion of very general goals of the MIP. (see id.)

The budget requests of the MIP are summarized in a nine volume Congressional Justification Book. FY 2016 Budget Congressional Justification Book (see id.) This includes general discussion of ongoing goals such as combating terrorism and counter-terrorism efforts. (see id.) Access to the details of these reports are extremely limited, even within Congress itself. In general, any access whatsoever is generally limited to the House Permanent Select Committee on Intelligence (HPSCI) and the Senate Select Committee on Intelligence (SSCI). (see Rosenbach, Erin and Peritz, Aki, Congressional Oversight of the Intelligence Community, available at https://www.belfercenter.org/publication/congressional-oversight-intelligence-community)

The HPSCI is a 22 member committee made up of members of the House with at least one member each from the House Appropriations, Foreign Affairs, Armed Services, and Judiciary Committees. The SSCI is a 15 member affair usually consisting of 8 members of the majority party, 7 members of the minority party and a standing spot for a member of the Senate versions of the above discussed House Committees. HPSCI looks at both the MIP and the NIP budgets. SSCI looks at NIP and the agencies it funds. This power has some overlap with the duties of a few other committees such as the Senate Armed Services Committee. The two committees also occasionally compete over their jurisdiction. What’s more, there is fairly consistent push and pull between the Executive and Legislative branches as to what an appropriate level of oversight should be. (see id.)

An example of this is, as will be discussed in depth later, Section 502 of the National Security Act of 1947 requires the Executive to “keep congressional intelligence committees fully and currently information of all intelligence activities of the United States. . .” This is to ensure that the representatives of the people that are allowed to be involved in the Black Budget at least know what’s going on. However, the Executive branch has frequently interpreted this requirement as only requiring notice to the “Gang of Eight”–the Senate and House Majority and Minority Leaders, and the Chairs and ranking members of the House and Senate Intelligence Committees. This substantially limits Congress’ decision making ability. What’s more, the White House generally has final say on what is and isn’t confidential from the majority of Congress, even further limiting the ability of Congress as a whole to make informed appropriations of funds on behalf of the people. (see id.)

After 9/11, Congress ostensibly changed their approach to intelligence oversight. They looked at their previous interaction and determined to substantially increase their oversight capabilities. They removed the term limits on the above discussed committees in 2005 with the goal of allowing committee members to gather the experience necessary to understand the information they’re interacting with. They also sought to combine appropriations with program authorization in order to make the people dealing with intelligence issues as specialized as possible. To this effect they made a House Appropriations Select Intelligence Oversight Panel comprised of 10 House Appropriations Committee members and three people out of the HPSCI. However, overall there hasn’t been much action to create more comprehensive oversight and certainly no public oversight. (see id.)

Like mentioned above, it’s understandable that some of this doesn’t make it to the public at large. However, it’s important that it’s provided to Congress–the people’s representative–in a way that allows them to know what they’re offering money to and what of the funds are appropriate to disclose to the public. This is as opposed to a system where everything is confidential as a norm and Congress has very little idea what they’re appropriating funds for. As it is, Congress’ financial accountability branch–the Government Accountability Office–is not even allowed to audit intelligence activities. (see Executive Order 12333, available at https://www.archives.gov/federal-register/codification/executive-order/12333.html#3.4While there are advantages to the limited group of Congresspersons receiving briefings on intelligence budgets, there are also obvious negative issues with such a system.

Even in just the last few days, there have been concerns that the bill that ended the recent government shutdown included provisions allowing the Executive branch to fund covert action without Congressional oversight or going through the usual Congressional oversight committees. The provision is currently a subject of debate, with a potential amendment to remove the exception opposed by some in Congress. (see Kelly, Erin, Spending Bill Limited Congress’ Oversight of Secret Intelligence Activities, Senators Say, available at https://www.usatoday.com/story/news/politics/2018/01/23/senate-intel-leaders-say-bill-reopen-government-strips-them-power-gives-white-hgives-white-house-mor/1057919001/. As it stands, this bill waives the later discussed (already very limited) reporting and appropriation requirements of the National Security Act. It’s not hard to see why it has raised more than a few eyebrows. Steps to change the language of the waiver were reportedly blocked in Congress. (see Nelson, Steven, Provision in Shutdown-Ending Bill Stokes Fear of Oversight-Free Intelligence Spending, available at http://www.washingtonexaminer.com/provision-in-shutdown-ending-bill-stokes-fear-of-oversight-free-intelligence-spending/article/2646894).

With such a recent move towards limiting Congress, and the people’s, oversight in a situation already sparse on oversight, appropriations compliance, and reporting compliance. The time has never been better to ask, what is the Black Budget? How did it come to be? How does it work and, perhaps most importantly, how and why is it considered legal and constitutional?

III. The Origins of the Black Budget

The Black Budget is more of a media concept than a legal concept. However, the name is an easy way of referring to the budget, appropriation and reporting loopholes created primarily by statute in the late 40’s through the National Security Act and the CIA Act. From there, the loopholes have been expanded and altered by statutes, executive orders, and policy changes–generally allowing even greater freedom to Black Budget issues. In more recent years there have also been some limited moves granting greater oversight to the government. However, as mentioned above, just a few weeks back we’ve seen an enormous step backwards in the approach to the Black Budget. (see id.) These changes are so fresh as to be very difficult to effectively discuss, there’s simply too much still up in the air. With this in mind, it’s best to start from the beginning–the National Security Act and CIA Act creating what we now discuss as the Black Budget.

Read the rest here: https://constitution.solari.com/the-black-budget-the-crossroads-of-unconstitutional-appropriations-and-reporting/