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 for NIP and the MIP combined have floated around $70-$80B per year for the last decade (id.). That’s more than the entire GDP of Guatemala every single year (List of Countries by Projected GDP, available at http://statisticstimes.com/economy/countries-by-projected-gdp.php).
Just getting an 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 Budget 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 Budget Congressional Justification Book, available at https://fas.org/irp/budget/mip-fy2016.pdf). Thus, the result is blank page on blank page prefaced with a short discussion of very general goals of the MIP (see id.).
The Black Budget: The Crossroads of (Un)Constitutional Appropriations and Reporting
(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 reporting requirements give 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/).
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 ’40s 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.
A. Introducing the 1947 National Security Act
The National Security Act was, on its face, a move to combine the Department of War, Department of the Army, the Department of the Navy, as well as several other military departments and agencies under the power of the newly created position of the Secretary of Defense. The most notable of these Departments and agencies was perhaps the CIA–newly created by the National Security Act–the first peacetime intelligence agency the U.S. had ever organized. These were all incredibly important moves. However, buried in all these sweeping governmental changes were the seeds that would create the Black Budget as we know it today (see National Security Act of 1947, 50 U.S.C.3001, available at https://www.dni.gov/index.php/ic-legal-reference-book/national-security-act-of-1947).