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The “Power of the Purse” with a $94 Billion Hole: The Legal Basis and Constitutional Implications of "Black Budget" Appropriations

The “Power of the Purse” with a $94 Billion Hole: The Legal Basis and Constitutional Implications of "Black Budget" Appropriations

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Published by jgall01
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Published by: jgall01 on Mar 12, 2010
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05/12/2014

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The
“ 
 Power of the Purse
” 
with a $94 Billion Hole:
The Legal Basis and Constitutional Implications of 
“ 
 Black Budget
” 
Appropriations
Jordan E. GallLAW 9400: National Security Law SeminarProf. Steven R. Swanson
 
Jordan Gall
i
3
3
4
6
O
O
 
Jordan Gall
1
I. INTRODUCTION
There is one interesting and important thing I can tell you. [The Advanced Cruise Missile project]is a procurement disaster. The ACM is the worst
 
of the programs the Committee has looked at.
Why? Because of classification the reasons will have to remain sketchy, almost nonexistent.
 
 – 
U.S. Representative Les Aspin, Chairman of the House Armed Services Committee
1
 
The Pentagon
s $36 billion black budget is a license to steal.
 
 – 
U.S. Representative Patricia Schroeder, Member, House Armed Services Committee
2
 
A popular government without popular information, or the means of acquiring it, is but a prologue to a farce, or a tragedy, or perhaps both.
 
 – 
James Madison, the
Father of the Constitution
3
 
Follow the money.
4
This timeless adage, though originating from a highly fictionalizedversion of 
Deep Throat
informant William Mark Felt in the film
 All the President 
‟ 
s Men
,
5
hasbecome engrained in the American popular consciousness to embody a universal truth that hasalways driven the success of investigator and journalist alike in unearthing wide varieties of governmental misconduct and corruption such as the familiar Whiskey Ring, Teapot Dome,Watergate, Iran-Contra, Keating Five, Whitewater, Jack Abramoff, and everything in between: anyconcerted effort by more than a few individuals will inevitably entail expenditures, andexpenditures leave a record that cannot lie. This centrality of financial accountability to restrainingexecutive power prompted Parliament to seize and utilize the
power of the purse
as a check on theCrown beginning over three centuries ago,
6
and explains the Framers
decision to make clear in theConstitution that the Executive may only expend public funds specifically appropriated by Congressand that the federal government must periodically publish a public accounting of all suchexpenditures.
7
Given this constitutional mandate and nothing more, one might be surprised to findthat every proposed budget the Department of Defense (
DOD
) annually submits to Congressthrough fiscal year 2010 conspicuously leaves blank entire line items of procurements andoperational expenses.
8
The upshot of this fiscal sleight of hand is that the DOD actually receives anamount far in excess of the amount for which it publicly accounts, creating a so-called
black budget
nearing approximately $50 billion dollars in the 2010 fiscal year, or $1585 per second.
9
 This does not even take into account the black budget of the CIA, which has statutory authority to
1
R
EP
.
 
L
ES
A
SPIN
,
 
A
CQUIRING
S
TRATEGIC
W
EAPONS
:
 
A
RE
W
ORKING
N
UKES
J
UST
F
LUKES
?
 
(June 1988) (quoted in T
IMOTHY
W
EINER
,
 
B
LANK CHECK
:
 
T
HE
P
ENTAGON
S
B
LACK
B
UDGET
10
 
(Warner Books, 1990)).
2
Weiner,
supra
note1,at 1.
3
Letter to W. T. Barry, Aug. 4, 1822 (quoted in S
TEPHEN
D
YCUS ET AL
,
 
N
ATIONAL
S
ECURITY
L
AW
975
 
(Aspen Publishers, 2007)).
4
R
ALPH
K
EYES
,
 
T
HE
Q
UOTE
V
ERIFIER
:
 
W
HO
S
AID
W
HAT
,
 
W
HERE
,
AND
W
HEN
65-
66 (St. Martin‟s Griffin, 1st ed. 2006).
 
5
 
 Id.
6
 
See infra
notes190-193,210-212and accompanying text.
7
U.S. C
ONST
. art. I, § 9, cl. 7;
see also
 
infra
notes190-242and accompanying text (discussing drafting and ratification history pertinent to that clause).
8
 
See infra
notes43-56and accompanying text.
9
Noah Shachtman,
 
 Pentagon‟s Black Budget Grows to More Than $50 Billion
, W
IRED
(May 7, 2009),
available at 
 http://www.wired.com/dangerroom/2009/05/pentagons-black-budget-grows-to-more-than-50-billion/ (last visited Nov. 17, 2009).

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