The secret $700 million

Did the Bush administration deceive Congress and use post-9/11 emergency funds to prepare for war on Iraq? Bob Woodward's new insider account raises some critical questions.


Cass R. Sunstein
April 22, 2004 10:36PM (UTC)

The most puzzling passage in Bob Woodward's new book, "Plan of Attack," deals with the allegedly covert expenditure of $700 million on preparatory tasks for the war in Iraq. Under the Constitution, the executive branch cannot spend taxpayer money without a congressional appropriation. The key question is whether Congress, explicitly or implicitly, authorized President Bush to spend $700 million for these purposes. The answer to that question is far from clear. But it is crucial to pose it, not only to evaluate what has happened in the last three years, but also to learn something about the relationship between Congress and the president in the modern era.

Here's what Woodward reports: In late July 2002, Gen. Tommy Franks informed Secretary of Defense Donald Rumsfeld that to make the Iraq war feasible, at least two steps had to be taken in Kuwait. First, air bases there had to be made suitable for aircraft use, parking and munitions storage. Second, a new fuel distribution capability had to be created, enabling fuel to be moved from Kuwaiti refineries to the Iraqi border so as to support the coming invasion. Bush told Woodward that these activities were done covertly and at significant expense -- leading, in fact, to 30 projects that the president expressly approved by the end of July.

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But how would they be funded? In Woodward's words, "Some of the funding would come from the supplemental appropriation bill being worked out in Congress for the Afghanistan war and the general war on terrorism. The rest would come from old appropriations."

What exactly does this mean? Begin with the "old appropriations." The most likely candidate is the Emergency Supplemental Appropriations Act, passed on Sept. 14, 2001, a direct response to the 9/11 attacks that appropriated $40 billion for five enumerated purposes:

1) providing federal, state and local preparedness for mitigating and responding to the 9/11 attacks.
2) providing support to counter, investigate or prosecute domestic and international terrorism.
3) providing increased transportation security.
4) repairing public facilities and transportation systems damaged by the attacks.
5) supporting national security.

Of these, 1, 3 and 4 could not possibly include preparations for war in Iraq -- and 2 and 5 even seem a bit of a stretch. In fact, this emergency supplemental appropriation was universally understood as a complement to the very measure, enacted on the same day, that authorized the president to use force to respond to the 9/11 attack (and thus to wage war in Afghanistan).

The early draft of that authorization, proposed by the White House, would have given the president broad authority to "deter and prevent any related future acts of terrorism and aggression against the United States." It was soon narrowed to permit the president "to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on Sept. 11 or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

In these circumstances, the emergency appropriation was mostly designed for domestic action that would amount to disaster recovery and strengthening internal preparedness -- an interpretation that finds support in a proviso saying that "not less than one half of the $40,000,000 shall be for disaster recovery activities and assistance related to the terrorist acts in New York, Virginia, and Pennsylvania."

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Might anything in the Sept. 14 appropriation permit the president to devote many millions of dollars to war preparations for Iraq? It could be argued that the purpose of "promoting national security" or "providing support to counter, investigate or prosecute domestic or international terrorism" is broad enough to give the president this authority. But even this much is not entirely clear. With the words "promoting national security," Congress cannot plausibly have meant to give the president a blank check to prepare for hostilities wherever he chooses.

But let's suppose that these words are read very broadly. Even so, the Emergency Supplemental Appropriations Act clearly states that the "President shall consult with the chairmen and ranking minority members of the Committees on Appropriations prior to the transfer of these funds."

Did President Bush consult with those leaders before committing millions of dollars to preparations for the war in Iraq? If so, there might be no problem. But at this stage it is far from clear that such consultation occurred. And if not, then the Sept. 14 appropriation appears not, in fact, to give the president the authority to use funds in the way that Woodward suggests that he did. In any case, the act also requires the director of the Office of Management and Budget to "provide quarterly reports to the Committees on Appropriations on the use of these funds, beginning not later than January 2, 2002." Were such reports provided, and did they include the information that Woodward reports?

To some people, these problems might seem to be too technical and picky, maybe even a lawyer's quibble. If the president of the United States is sincerely trying to protect national security, and if a congressional appropriation can be read to permit him to do so, is it really terrible if he fails to consult with some legislators? But no mere quibble is involved. Under the Constitution, funds are appropriated by Congress, not the president. Even when national security is threatened, the president is constitutionally obliged to follow congressional restrictions on the expenditure of federal funds.

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But maybe the president had another source for the funding. According to Woodward, the war preparations were partly funded "from the supplemental appropriation bill being worked out in Congress for the Afghanistan war and the general war on terrorism." This is apparently a reference to the appropriations act of Aug. 2, 2002 (which runs to well over 100 pages of dense text). But nothing in the Aug. 2 act unambiguously authorizes the $700 million expenditure. To be sure, one provision allows the secretary of defense to use up to $275 million "to meet other essential operational or readiness requirements of the military services." But even if fully available, this provision accounted for well under half of the $700 million reported by Woodward; and to use the money for that purpose, the law requires the secretary to notify the congressional defense committees. Did he?

Another provision of the 2002 appropriation permits the secretary of defense to use taxpayer dollars for "military construction projects ... that the Secretary of Defense determines are necessary to respond to or protect against acts or threatened acts of terrorism." But could all of the activities in Kuwait be justified as "military construction projects"? Could all of them be defended as "necessary" responses to "threatened acts of terrorism"? Even if the answer to both questions is yes, the secretary of defense would be obliged to give notice to the appropriate committees of Congress. Was notification given? It is not clear that it was.

At this point, we know too little to conclude that the White House violated the law. Perhaps Woodward misreported the facts. Perhaps some source of law can be found to justify what might otherwise appear to be a misuse of $700 million. The Department of Defense has recently insisted that it spent only $178 million, not $700 million, before Congress authorized the Iraq war. Apparently brushing aside the August 2002 appropriation, it contends that the use of $178 million was consistent with the Sept. 14, 2001, emergency appropriation and that it involved "non-Iraq specific items."

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In testimony before Congress on Tuesday, Deputy Secretary of Defense Paul Wolfowitz added that $63 million was taken from the 2002 appropriation for "operational requirements not directly tied to Iraq."

These contentions, vague and conclusory as they seem, might ultimately be proved valid. But the underlying issues are extremely serious ones, and they deserve careful investigation. Perhaps the White House has a detailed explanation, on the facts and the law, that shows why any use of taxpayer funds was consistent with congressional enactments. But in the face of legitimate questions, such an explanation really needs to be offered. Its absence raises genuine problems both for democratic government and for the rule of law.


Cass R. Sunstein

MORE FROM Cass R. Sunstein

Related Topics ------------------------------------------

Afghanistan Iraq Middle East

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