The House spending bill released Wednesday would allow President Donald Trump, or people under him, to secretly shift money to fund intelligence programs, a break with 70 years of governing tradition.
Since 1947, section 504 of the National Security Act has mandated that the administration inform Congress if it intends to shift money from one intelligence project to another, if the new project has not been authorized by Congress. That notification can be — and almost always is — done in secret, but it is at least a minimal check on executive power.
The spending bill currently under consideration, known as a continuing resolution, or CR, breaks with that tradition, allowing funds to “be obligated and expended notwithstanding section 504(a)(1) of the National Security Act of 1947.”
Section 504(a)(1) is the piece of the law that requires intelligence agencies to spend money on the program the money was appropriated for. “Appropriated funds available to an intelligence agency may be obligated or expended for an intelligence or intelligence-related activity only if those funds were specifically authorized by the Congress for use for such activities; or …”
The “or” refers to the intelligence community’s obligation to inform Congress of any deviation. But without any obligation to spend funds as specifically authorized, there is no obligation to inform Congress if that’s not happening.
That’s not how this issue has been dealt with in previous CRs. Here’s what the language typically looks like:
Funds appropriated by this Act, or made available by the transfer of funds in this Act, for intelligence or intelligence related activities are deemed to be specifically authorized by the Congress for purposes of section 504 of the National Security Act of 1947 (50 U.S.C. 414) during [fiscal year] until the enactment of the Intelligence Authorization Act for [insert fiscal year].
The reference to the Missile Defeat and Defense Enhancements Appropriations Act merely refers to the previous continuing resolution, which means that the money appropriated could be secretly reprogrammed to whatever intelligence operation the Trump administration deemed fit.
The government’s spending authority expires Friday at midnight.