THE WHITE H O U S E WASHINGTON October 30 1989 Dear Senator Boren The purpose of this letter is to state how I intend to provide notice to Congress of covert action under section 501 of the National Security Act of 1947 as amended On December 17 1986 the Assistant Attorney General Office of Legal Counsel provided the then Attorney General with an opinion as to the meaning as a matter of law of section 501 b of the National Security Act That provision requires the President to fully inform the intelligence committees in a timely fashion of intelligence operations in foreign countries other than activities intended solely for obtaining necessary intelligence for which prior notice was not given The opinion at page 24 stated that a number of factors combine to support the conclusion that the 'timely fashion' language should be read to leave the President with virtually unfettered discretion to choose the right moment for making the required notification I intend to provide notice in a fashion sensitive to congressional concerns The statute requires prior notice or when no prior notice is given timely notice I anticipate that in almost all instances prior notice will be possible In those rare instances where prior notice is not provided I anticipate that notice will be provided within a few days Any withholding beyond this period would be based upon my assertion of the authorities granted this office by the Constitution I am sending a similar letter to Senator Cohen cc The Honorable Anthony C Beilenson The Honorable Henry J Hyde The Honorable David L Boren Chairman Select Committee on Intelligence United States Senate Washington D C 20510-6475 Dear Mr Chairman The purpose of this letter is to state again how I intend to provide notice to Congress of covert action under section 501 of the National Security Act of 1947 as amended the Act I recognize that it was the intent of Congress in enacting section 501 of the Act that ordinarily covert actions would be reported to Congress in advance of their implementation As you know that has been my practice since becoming President At the same time Congress expressly provided that this obligation would be carried out in a manner consistent with all applicable authorities and duties including those conferred by the Constitution Indeed 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 the President may assert constitutional authority to withhold prior notice of covert actions I recognize that Congress in enacting section 501 b deliberately declined to recognize a constitutional right on the part of the President to provide notice in other than a timely fashion As I understand it the Carter Administration accepted this formulation provided it was understood by both branches that the phrase in a timely fashion would be interpreted to provide sufficient flexibility for both branches to carry out their respective constitutional responsibilities Indeed as Senator Javits noted during the 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 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 What we are doing is simply legislating under the necessary and proper clause of article I a new arrangement or modus vivendi for the handling of information and consultations between Congress and the intelligence agencies with both sides reserving their positions on the constitutional issues On December 17 1986 the Assistant Attorney General Office of Legal Counsel provided the then Attorney General with an opinion as to the meaning as a matter of law of section 501 b of the Act That provision requires the President to fully inform the intelligence committees in a timely fashion of intelligence operations in foreign countries other than activities intended solely for obtaining necessary intelligence for which prior notice was not given The opinion at page 24 stated that a number of factors combine to support the conclusion that the 'timely fashion' language should be read to leave the President with virtually unfettered discretion to choose the right moment for making the required notification The opinion also stated in the conclusion at page 27 that the requirement that the President inform certain congressional committees 'in a timely fashion' of a foreign intelligence operation as to which those committees were not given prior notice should be read to leave the President with discretion to postpone informing the committees until he determines that the success of the operation will not be jeopardized thereby Accordingly I intend to provide notice in a fashion sensitive to congressional concerns The statute requires prior notice or when no prior notice is given timely notice I anticipate that in almost all instances prior notice will be possible In those rare instances where prior notice is not provided I anticipate that notice will be provided within a few days Any withholding beyond this period would be based upon my assertion of the authorities granted this office by the Constitution I am sending a similar letter to Congressman Hyde Sincerely cc The Honorable David L Boren The Honorable William S Cohen The Honorable Anthony C Beilenson Vice Chairman Select Committee on Intelligence United States Senate Washington D C 20510-6475 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