Date

May 23, 1989

Description

In this important draft letter for Senator Cohen, Bill Barr presents a defense of the 1986 OLC opinion that claimed “virtually unfettered discretion” by the President when it comes to notifying Congress on covert activities (Document 1). Although Barr suggests that he reads limits into the “unfettered discretion” section of the opinion, “I want to assure you that I do not read that opinion as suggesting that the President is free to disregard Congress' legitimate oversight responsibilities” [crossed out in the original with a check mark next to it], he then explains how it is legal for the President to withhold notification under exceptional cases, “I believe as the opinion suggests -- that the President's decision to delay notification would be based on the exigencies surrounding an operation. Once the exceptional circumstances justifying a delay in notification have abated, the President would have an obligation under section 501(b) to inform Congress. In other words, once the necessity for secrecy has ceased, the President would not have discretion under the statute to continue to withhold notice from appropriate Congressional committees.” Barr explains that “exceptional circumstances” would be met “when American lives could be jeopardized by disclosure of an operation.” Furthermore, even in such extraordinary cases, the letter explains that, “procedures are now in place that will assure that any decision to delay notification beyond forty-eight hours will be reconsidered at least once every ten days.” Barr tries to reassure Cohen by noting that the current President is committed to comity between the two branches, therefore, “we are confident that the ‘timely notification’ requirement will be met in good faith, and that further legislation in this sensitive area is neither warranted nor wise.” In the cover memo Barr cautions Rostow that “I would be reluctant to go forward with this letter unless we had some reason to believe Senator Cohen would be satisfied with it.”

Source

George H. W. Bush Presidential Library, Bush Presidential Records, National Security Council, Nicholas Rostow Files, Subject Files, Folder, “Covert Action: Notification of [5].”

Document published in following posting(s):

What the CIA Tells Congress (Or Doesn’t) about Covert Operations: The Barr/Cheney/Bush Turning Point for CIA Notifications to the Senate

Feb 7, 2019

Nicholas Rostow, NSC Legal Adviser, memorandum for Brent Scowcroft, “Response to Senator Cohen on 48 Hour Notification and Covert Action,” with an attached draft letter written by William Barr, “Letter to Senator Cohen Regarding Office of Legal Counsel 48 Hour Notice Opinion,” May 23, 1989.