0899 N A TIO N A L S EC U R ITY CO UNCIL WASHtMQTON D C 20600 February 16 1989 INEQRMftXIQM MEMORANDUM FOR BRENT SCOWCROFT FROM NICHOLAS R O S T O W SUBJECT Meeting with Intelligence Committee Staff Bill Working Virginia Lampley and I met on February 15 1989 with Britt Snider Mike O'Neil and Jim Dykstra Snider is the Minority Counsel Dykstra is the Minority Staff Director on SSCI and O'Neil is Majority Counsel of the House Permanent Select Committee on Intelligence HPSCI A couple of weeks ago we had met with Snider and O'Neil because Senator Cohen was interested in this Administration's position with respect to the language of NSDD 286 regarding periodic decisions to delay notification of covert actions to Congress and with respect to the memorandum dated December 17 1986 by former Assistant Attorney General Office of Legal Counsel Charles Cooper on the meaning of timely notification in section 501 of the National Security Act of 1947 as amended Tab II Senator Cohen is particularly concerned about the reference to unfettered discretion in the sentence following footnote 32 on page 24 In the previous meeting we had agreed to reconvene in a month with we hoped more of the relevant Administration officials to be in their jobs In the intervening period Bill had suggested that the staff give us some written language expressing Senator Cohen's concerns That language was supplied this morning Tab I In the course of an hour's conversation the issue outstanding was well articulated as being what it has always been the limits on the President's constitutional discretion to act without prior notification to Congress and indeed without notifying Congress until the President deems it appropriate or practicable the word used in the 1868 Hostage-Taking Statute Tab III As Mike O'Neil said he wants the President in a box that is an enumeration of the circumstances in which the President could delay notification O'Neil said an Administration policy position accommodating this concern would be helpful He recognized that a new legal opinion might take months to do Snider said Senator Cohen was impatient if the Administration did not accommodate him he would reintroduce his bill In the course of discussion Mike O'Neil noted that War Powers raised much the same issues 2 We were told that you and Bob Gates had talked to Senator Cohen about these issues We were told that Senator Cohen might well raise them in the meeting proposed for next Tuesday I shall be sending you separately a summary of the constitutional issues raised by Senator Cohen's proposal I also am sending his proposal to my colleagues whose views on the law are indispensable to the formation of an ultimate Administration view Boyden Gray Bill Barr Assistant A t ' ' Office of Legal Counsel-designate Abe Sofaer and Jack McNeill DoD GC concur Attachments Tab I - Senator Cohen's Suggestions Tab II - Cooper Memorandum Tab III - Hostage-Taking Statute b 3 50 U S C 403g Sec 6 SUGGESTED COMPROMISE ON 48-HOUR ISSUE Keep the e x i s t i n g phra s e in a t i m e l y fashion in a revised bill r e p l a c i n g the 48-hour provision Define this phrase in report language as m e a n i n g as soon as poss i b l e but in no event later than a few days after a finding is approved w i t h White H ouse concurrence C o n s i s t e n t with this formulation 1 the Justice D e p a r t m e n t ' s u n f e t t e r e d dis c r e t i o n o pinion would be w i t h d r a w n or s upersede d and 2 the NSDD wou l d be m o d i f i e d to remove the s u g gestion that the President may w i t h h o l d notice i n d e f i n i t e l y from the Committee This document is from the holdings of The National Security Archive Suite 701 Gelman Library The George Washington University 2130 H Street NW Washington D C 20037 Phone 202 994-7000 Fax 202 994-7005 nsarchiv@gwu edu