N A TIO N A L SECURITY COUNCIL WASHINGTON D C 20506 5092 June 27 1989 INFORMATION MEMORANDUM FOR BRENT SCOWCROFT FROM NICHOLAS ROSTOW SUBJECT Cohen Letter on Covert Action Notification Ginny Lampley Steve Rademaker and I met today with Britt Snider Minority Council to the Senate Select Committee on Intelligence and Jim Dykstra Minority Staff Director not a lawyer We struggled apparently without success to bridge the gap between our versions of the proposed letter to Senator Cohen Our discussion focussed on two sentences concerning the relationship between the Constitution and the requirement of section 5 0 1 b of the National Security Act that notice of covert actions be provided to Congress in a timely fashion when prior notice is not provided We never reached the issue of who would sign the letter Our positions had been reflected in our respective draft letters Tab I ours p 3 Tab II theirs p 4 The Administration goal was a letter reaffirming the 1980 agreement to disagree reflected in Senator Javits' comments which both versions of the letter quote Our proposed language admittedly cumbersome said in essence that the statute does not authorize the President to withhold notice beyond a few days in any situation in which he is not already authorized by the Constitution to withhold notice The language was based on the principle that statutes must be read to be consistent with the Constitution when at all possible If the President were to withhold notice beyond a few days without a constitutional basis for doing so we recognize that section 501 b was not intended to provide an independent statutory authority for withholding the notice Moreover if the President were to withhold notice beyond a few days based on his assertion of constitutional grounds we recognize that the statute contemplates notice as soon as such grounds cease to exist The Committee staff proposal contained the following alternative Further I recognize that section 5 0 1 b was not intended to provide an independent statutory authority for withholding such notice beyond a few days Any withholding beyond this period necessarily must be rest upon an assertion of constitutional power 2 Lawyers from the Justice Department and Boyden Gray's office agree that the Committee staff language is unacceptable for a presidential letter because it not too subtly implies that a delay beyond a few days would be violating a statute In our view the statute was intentionally vague so as to accommodate different views of the President's constitutional power with regard to notification of covert action To try to bridge the gap in our positions which became clearer as our discussion dragged on we tried drafting alternatives at the meeting The following alternative formulations resulted New language is underlined in the first two examples because we worked from the first of their proposed sentences 1 ''Further I recognize that section 501 b was not intended to provide statutory authority inconsistent with the Constitution for withholding such notice beyond a few days 2 Further I recognize that section 501 b was not intended to provide an independent statutory authority when the President is without constitutional authority for withholding such notice beyond a few days 3 As Senator Javits' remarks make clear Congress has its view of the constitutional powers of the President and Presidents have asserted a different view In light of this recognition section 501 b is understood not to provide statutory authority inconsistent with the Constitution for withholding notice beyond a few days None of these alternatives has been cleared with the Justice Department or Counsel to the President I understand from Ginny that Senator Cohen refuses to consider changes in the language proposed by his staff This position is unfortunate because we evidently are close to agreement and because the Justice Department Counsel to the President and I would strongly oppose the President's signing a letter with the Committee staff language I understand that you will be meeting with Senator Cohen to discuss this matter The issues for compromise remain who is to sign the letter Senator Cohen's letter was addressed to you and how the letter should accommodate the different views of the law described above Concurrences by Lampley Attachments Tab I Administration Draft Letter Tab II SSCI Draft Letter cc William W Working DRAFT Dear We are aware of your concerns about the nature of the relationship between the executive and legislative branches with respect to intelligence matters In particular we know that you continue to be concerned with the implications of some actions taken during the last Administration especially the long delay in notifying Congress about certain arms transfers to Iran This Administration is committed to building and maintaining a spirit of trust and mutual respect between our branches of government When such a spirit is lacking neither foreign policy generally nor intelligence activities in particular can be conducted in a manner that fully serves the interests of our nation We therefore welcome your efforts to keep the lines of communication open and to pursue appropriate dialogue as we all go forward with the essential business of government It is obvious that from time to time some members of Congress have differed with the President about the scope of executive authority over foreign affairs The immediate challenge facing all of us today is not to resolve those differences as an abstract matter but to find ways to work together for the nation's benefit despite the differences we may have In 1980 just such a constructive accommodation was reached with respect to the notification to Congress of covert actions DRAFT I want to usiM r i 2 assure you that this Administration is committed to the principles embodied in that accommodation Accordingly we recognize that it was the intent of Congress in framing section 501 a of the National Security Act of 1947 that ordinarily covert actions would be reported to Congress in advance of their implementation As you know that has been the consistent practice of this President and this Administration At the same time section 501 a expressly provides that this obligation is to be carried out in a manner consistent with all applicable authorities and duties the Constitution Indeed including those conferred by in the colloquy between Senators Javits and Huddleston on June 3 1980 Senator Huddleston the floor manager of the bill expressly stated that the bill recognizes that the President may assert constitutional authority to withhold prior notice of covert actions Section 501 b provides for notice to Congress in a timely fashion when advance notification under section 501 a given is not As we understand it the phrase in a timely fashion should be interpreted to provide sufficient flexibility for both branches to carry out their own constitutional responsibilities As Senator Javits noted during the same floor debate Congress does not have the power to change the Constitution by statute However this language should not be interpreted as meaning that Congress is herein DRAFT U ftM n i 3 recognizing a constitutional basis for the President to withhold information from Congress We have never accepted that he does have that power he has never conceded that he does not under certain circumstances and the courts have never definitively resolved the matter But we are leaving that dispute for another day specifically reserving both of our positions on this issue and nothing in this statute should be interpreted as a change in that situation In the same spirit of practical accommodation reflected in Senator Javits' remarks this Administration will continue to adhere to the arrangements for consultations that this legislation provides and that we believe are crucial to the success of these sensitive endeavors In particular with respect to covert action the Administration anticipates that except in extraordinary circumstances notice will be given prior to the initiation of such activities If the President were to withhold notice beyond a few days without a constitutional basis for doing so we recognize that section 501 b was not intended to provide an independent statutory authority for withholding the notice Moreover if the President were to withhold notice beyond a few days based on his assertion of constitutional grounds we recognize that the statute contemplates notice as soon as such grounds cease to exist DRAFT UK A f I 4 We hope that you and the Committee will accept our commitment in the same spirit of good faith and comity in which it is offered With cooperation on both sides we can move forward together in this critical area which is so vital to the national security o the United States Sincerely DRAFT DEAR I am aware of your re la tio n sh ip between w ith respect to that you some a ction s the transfers My to taken de lay to the in be the n o tifyin g branches governm ent When foreign p a rticu la r interests to p o licy can of keep be our the governm ent Congress obvious have as a utho rity challenge facing a ll the branches p a rtic u la r the I know im p lica tio n s about w ith I of espe cially certain b u ild in g arms a a s p irit tim e the today - 1 - is between manner that a c tiv itie s fu lly welcom e open and to w ith the to s ome Members P resident about a ffa irs The is resolve not to serves your forward tim e our la cking in te llig e n ce com m unication go and respect therefore foreign us to nor in a ll from over of of we that differed executive gen era lly lin e s business is Le g isla tive mutual such na tion dialogue It and conducted appro priate of of A d m inistration com m itted tru s t efforts s p irit is of the nature Iran a in la st the in w ith Congress m aintaining n e ithe r and m atters concerned during A dm inistration of about Executive in te llig e n ce continue long concern the pursue essential of scope im m ediate those of differences as an abstract matter but to find ways to work together for the nation's benefit despite the differences we may have In 1980 just such a constructive accommodation was reached with respect to the notification to Congress of covert action I want to assure you that my Administration is committed to the principles embodied in that accommodation Accordingly I recognize that it was the intent of Congress in framing section 501 a of the National Security Act of 1947 that ordinarily covert actions would be reported to Congress in advance of their implementation As you know that has been my consistent practice as President At the same time section 501 a expressly provides that this obligation is to be carried out in a manner consistent with all applicable authorities and duties conferred by the Constitution indeed including those in the colloquy between Senators Javits and Huddleston on June 3 1980 Senator Huddleston the floor manager of the bill expressly stated that the bill recognizes that the President may assert constitutional authority to withhold prior notice of covert actions Section 501 b provide for notice to Congress in a timely fashion when advance notification under section 501 a is not given As I understand it the phrase in a timely fashion was intended to provide sufficient flexibility for both branches to carry out their own constitutional responsibilities As Senator Javits noted during the same floor debate Congress does not have the power to change the Constitution by statute However this language should not be Interpreted as meaning that Congress is herein recognizing a constitutional basis for the President to withhold Information from Congress We have never accepted that he does have that power he has never conceded that he does not under certain circumstances and the courts have never definitively resolved the matter But we are le a vin g s p e c ific a lly th is issu e Interpreted that reserving and as a dispute for our another day positions on both of n o th in g in th is statute change in that situ a tio n should be In the same spirit of practical accommodation reflected in Senator Javits' to adhere remarks my Administration will continue to the arrangements for consultations that this legislation provides and that I believe are crucial to the success of these sensitive endeavors respect to covert actions In particular with I anticipate that except in extraordinary circumstances notice will be given prior to the initiation of such activities Further I recognize that section 501 b was not intended to provide an independent statutory authority for withholding such notice beyond a few days Any withholding beyond this period necessarily must rest upon an assertion of constitutional power I hope that you and the Committee will accept my commitment in the same spirit of good faith and comity in which it is offered With cooperation on both sides we can move forward together in this critical area which is so vital to the national security of the United States S in c e re ly 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