8427 NATIONAL SECURITY COUNCIL WASHINGTON O C 2 0500 October 20 1989 INFORMATION MEMORANDUM FOR ROBERT M GATES FROM NICHOLAS ROSTOW l SUBJECT Covert Action Notification You have asked for a recap of the various proposals exchanged with Senator Cohen on new statutory language to govern notification to Congress of covert action and on the meaning of section 501 b of the National Security Act I have divided the proposals into those involving statutory language Tabs A-D and the earlier ideas for a response to Cohen's letter of April 20 1989 to General Scowcroft STATUTORY LANGUAGE Tab A The prohibition adopted by the Senate Intelligence Committee on using the reserve for contingencies to fund covert action without prior notice Tab B Cohen's language adopted by the Committee which Administration lawyers consider unacceptable Tab C Our proposal which Cohen rejected Tab D Cohen's subsequent proposal for statutory and report language which Administration lawyers consider unacceptable Tab E For comparison and reference purposes existing law LETTER LANGUAGE Before proposals for statutory language were considered we discussed language in a letter the President might sign We ultimately disagreed with Senator Cohen about a few sentences describing when notice would be given In essence the Administration would not agree to language that said the President would be in violation of the statute if he withheld notice beyond 48 hours and Senator Cohen would not accept language that fell short of such a statement The various proposals were Formulations offered bv Cohen 1 I will continue to adhere to the arrangements for consultations in this critical area which this legislation provides and which I believe are crucial to the ultimate success of these sensitive endeavors At the same time these arrangements cannot supersede the authorities granted this office by the Constitution It is difficult to imagine circumstances where they would be in conflict but I cannot rule out that possibility I can however assure you that even in such unlikely circumstances notice would be provided as soon as possible thereafter This would never be more than a matter of a few days 2 with respect to covert actions 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 must necessarily rest upon an assertion of constitutional power 3 In the extraordinary circumstances where prior notice is not provided I shall nonetheless provide notice as the current law requires in a timely fashion which shall be no longer than two days Any withholding of notice beyond this time period would be based upon my assertion of the authorities granted this office by the Constitution Formulations proposed to Cohen 1 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 basis 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 2 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 In no instance would I direct that such notice be withheld beyond a few days without constitutional authority to do so 3 I understand that General Scowcroft presented an additional proposal to Cohen drafted by Judge Sofaer We do not have a copy I understand that this proposal may have been based on our proposal #2 above 4 The following language was provided to General Scowcroft at his request We do not know whether it was ever provided to Cohen As you know we disagree both as to the meaning of the statute and as to my constitutional powers in this area Under your view the statute requires notice in all instances within 48 hours and the Constitution does not provide any authority to withhold notice beyond that time In my view the statute and the Constitution are consistent and both provide authority to withhold notice when circumstances require that notice be withheld until in my judgment the circumstances permit notice to be given Without in any way accepting your interpretation of the statute I can tell you that if a situation ever arises where I feel that it is necessary to withhold notice beyond two days I will do so in reliance upon my constitutional powers and not on my interpretation of the statute It should be noted that Administration lawyers consider the second paragraph of this formulation to be unacceptable C Formulations that we considered but which to our knowledge were never proposed to Cohan 1 Further I recognize that section 501 b was not intended to provide statutory authority inconsistent with the Constitution for withholding 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 4 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 5 0 1 b is understood not to provide statutory authority inconsistent with the Constitution for withholding notice beyond a few d a y s ampley Attachments Tab A Reserve for Contingency Language together with SSCI Report Excerpts Tab B Cohen Language Tab C Our Proposal Tab D Cohen Language Tab E Existing Statutory Language Limitation on Use of CIA Reserve for Contingencies SEC 104 Section 502 of the National Security Act of 1947 50 U S C 414 is amended by adding after the semicolon and before the word or at the end of subsection a 2 provided however that no funds from the Reserve for Contingencies may be obligated or expended for any operation or activity for which the approval of the President is required by section 662 of the Foreign Assistance Act of 1961 22 U S C 2422 or for any significant change to such operation or activity for which prior notice has been withheld 1018T CONORS 1st Session SENATE I R e po r t 1 01-78 AUTHORIZING APPROPRIATIONS FOR FISCAL YEARS 1090 AND 1991 FOR INTELLIG ENCE ACTIVITIES OF TH E UJ3 GOVERNM ENT TH E INTELLI- GENCE COMMUNITY STAFF TH E CENTRAL INTELLIGENCE AGENCY RE- TIREM EN T AND DISABILITY SYSTEM O A R D Sl AND FOR OTHER PUR- POSES J uly 14 1989 legislative day J anuary 8 1989 --O rdered to be p rin ted Mr B o r k n from the Select C om m ittee on Intelligence subm itted th e follow ing REPORT To accom pany 8 1824 I I 3 w ithdraw al of Soviet troops from A fghanistan the change in lead- ership in Iran the end of the civil war in Angola and nounced withdrawal of the V ietnam ese from Cambodia but a few Such changes underscore two points First is the ndSd for the U nited States to maintain an in telligen ce capability'w hich permits it to anticipate and understand th e nature andidgnificance of such change Second is th e need w ithin the U J3 Intelligence Community itself to be able to adjust to these developm ents Such adjustm ents m ust not be confined sim ply to gathepiifg inform ation on new areas o f in terest but m ust include adjusting one's previously-held analyt- ical assum ptions as w ell in id n n s of w hat such changes mean Indeed how w ell the Intelligence Community helps U S policy- m akers appreciate andLropond to potentially far-reaching change around the world cedld in som e large m easure determ ine the exten t to w hich the U nited States is itself able to shape such events in the krferests of a safer and freer world The Copamittee has and w ill continue to evaluate th e perform- ance optne Intelligence Community in this regard during th e forthfiscal year C o n g r e s s io n a l O v e r s ig h t o f In t e l l ig e n c e A c t iv it ie s Last year the Committee reported S 1721 w hich was a compre- hensive revision of the Intelligence Oversight Act of 1980 The Senate passed the b ill on March 15 1988 by a vote of 71-19 The b ill never came to a vote in the House of R epresentatives however The Committee has thus far not considered the bill in th is Con- gress opting instead to attem pt to reach an agreem ent w ith the new Adm inistration on the reporting of covert actions to the two Intelligence Committees It has been a m atter of continuing con- cern in fact to the Committee th at the understandings upon which the 1980 oversight statute were based be reaffirm ed by the Bush A dm inistration In th e absence of such agreem ent however the Committee would be obliged to reconsider the previously-reported legislation Indeed even if agreem ent were reached on the reporting of covert actions it may be desirable to consider enactm ent of those portions o f the oversight legislation developed in 1988 which had been agreed to by both sides Insofar as the Committee's oversight activities were edficemed the Committee continued to focus on ongoing cjjpeft action pro- gram s Making particular use of its interrm ptfudit team estab- lished in 1987 the Committee was ablej rack developm ents in these programs on a continuing amp hffailed basis The Committee also continyed fo monitor the operations of the Inspector General at C lA fne Committee received its first report from th e Director upd r the statutory provisions enacted in the Fiscal Year 1989 tind it has monitored the performance o f the In- spector G enerm s office in several specific inquiries The Committee continuaPfo be concerned that such an arrangement may not be the effectiveness and objectivity necessary for this funcLon I 7 - f -- - -- 11 n -- - - - -- -- - -- t _ X-- i n ____ _ o section 1U4 amends section ouz oi m e x anonm security Act ot 1947 50 UJ3 C 414 by adding a proviso at the end of subsection X2 which provides tnat the CIA Reserve for Contingencies may not be used to fund new covert actions or significant changes to ongoing programs for which prior notice has been withheld by the President from the two Intelligence Com m ittees E xisting law is unclear on th is point Subsection 502 aX2 cur- rently requires th at the Director of C entral Intelligence consist- ent w ith the provisions of 501 o f A ct concerning significant in- telligence activities '' advise the diligence and Appropriations Committees of each House of h is in ten t to fund such activities from the CIA Reserve for Contingencies The Committee was concerned th at th is language could be inter- preted to mean that the CIA Reserve for C ontingencies could be used to fund a covert action program for which prior notice has been w ithheld by the President Since section 501 of the N ational Security Act of 1947 permits the President to w ithhold prior notice and the DCFs obligation to advise th e Congress of release from the Reserve is conditioned upon consistency w ith section 501 the possi- b ility arises that the two m ight read as providing an exception to the prior notification requirem ent for a Reserve release It is the intent of Section 104 to m ake clear th at the CIA Reserve for Contingencies may not be used to fund any new covert action program or any significant change to an ongoing program for which prior notice nas been w ithheld from the Intelligence Comm ittees The language in this section pertaining to significant changes in ongoing covert action programs is not intended to impose any additional reporting requirem ent beyond existing law and practice The President currently approves significant changes to ongoing covert programs in the form of Memoranda of N otification ' or MON's which are provided in advance of their im plem entation to the two Intelligence Committees It is th e intent of section 104 to preclude the use of the Reserve for C ontingencies to fund new or additional covert activities authorized by th e President which have been w ithheld from the two Intelligence Committees PROPOSED REVISION OP SECTION 501 b OF THE NATIONAL SECURITY ACT OF 1947 w b The President shall fully inform the intelligence committees in a timely fashion but in no event more than forty-eight hours of his approval of any covert actionl for which prior notice was not given under subsection a and shall provide a statement of the reasons for not giving prior notice Any such notice provided beyond this period shall be accompanied by a statement setting forth the constitutional basis asserted by the President for deferring notice beyonS such period provided however this requirement shall notT be interpreted as acquiescence on the part_of Congress that the Constitution provides a basis for such deferral 1 new wordina underlined ' b The President shall fully inform the intelligence committees in a timely fashion but in no event more than forty-eight hours after his approval except pursuant to subsection c of any covert action for which prior notice was not given under subsection a and shall provide a statement of the reasons for not giving prior notice c Any notice provided beyond forty-eight hours after the President's approval shall be accompanied by a statement setting forth the constitutional basis asserted by the President for deferring notice beyond such period provided however this requirement shall not be interpreted as acquiescence on the part of Congress that the Constitution provides a basis for such deferral DRAFT 10 10 89 Revision of 50 U S C 501 b i b The President shall fully inform the intelligence committees in a timely fashion but in no event more than forty-eight hours after his approval of any covert action for which prior notice was not given under subsection a Zf the President should in a particular case assert a claim of constitutional authority to withhold notice beyond fortv-eight hours notwithstanding the express unconditional requirement imposed by this statute he shall submit to the committees at the time notice is provided a detailed statement justifying such delay provided however that nothing contained in this subsection shall be construed as express or implied recognition that the Constitution provides any such authority Draft report language to accompany proposed amendment Subsection 501 b makes clear that in any case where prior notice of a covert action is not provided the committees the President will ensure that the committees are J rovided such notice in a timely fashion which shall be no onger than 48 hours of the President's approval either in a written finding or pursuant to the President's verbal direction of such covert action While the Committee anticipates that it will ordinarily receive notice of all covert actions before they are implemented it recognises there may be exigent circumstances where the President needs to act immediately to protect United States interests and there is simply not time to consult with the committees in advance of taking such action The Committee expects however that in no event should such exigencies require a delay in notice of greater than 48 hours By defining the phrase in a timely fashion to mean no longer than 48 hours subsection b removes the potential ambiguity under existing law that Congress may have authorized withholding for substantially greater periods Notwithstanding the express unconditional requirement set forth in the first sentence the second sentence of subsection b recognizes that a President might in a particular case assert a claim that his authorities under the Constitution justify withholding notice beyond 48 hours The Committee does not agree that such authority is provided by the Constitution We do however accept as a matter of law that Congress cannot by statute add to or subtract from whatever powers and authorities the Constitution may provide Representatives of the President have asserted the view that the Constitution may indeed in certain circumstances provide such authority They contend that where the application of the statute would preclude the President fro R exercising powers granted him by the Constitution he would not be bound by its terms The second sentence of subsection b reflects the realities of this situation and requires that the President formally juBtify his position to the committees in any case where he withholds notice beyond 48 hours The proviso at the end of the sentence also makes clear however that in establishing such a requirement tne Committee does not give statutory endorsement t o a n y such claim of constitutional authority to waive the 48-nour requirement The purpose of this subsection is to acnieve a practical accommodation between the- branches whereby Congress expresses its will without relying upon an of what may be timely while anticipating the possibility that a President may in some future case exercisewnat ne believes are his constitutional authorities to act without notifying congress o o The Committee for its part emphasises that existing law nor the proposed revision of subsection 90110 requires congressional approval of a covert action in no way is the President limited by either in terms of the o actions he may authorise The law requires on y Jotf5 R 0 actions already authorized by the President While the Committee believes that a statutory requirement for sucn notice is consistent with and supported by the powers ana responsibilities of both branches it also recognizes that neither the Committee nor Congress as a whole is in a oosition to resolve this issue unilaterally We have therefore adopted language in subsection b which preserves the constitutional positions of both branches of Government leaving each to argue its respective position at some future time within the context of a given set of facts 14 NATIONAL SECURITY ACT SUCCESSION TO THE PRESIDENCY S e c 311 S ectio n 311 consisted o f an amendm ent to the A ct'entitied A n A ct to provide for the perform ance of the dutiee'of the office of P resident in case of th e rem oval resignation or in- ability both o f th e President and V ice P resident acted hereby Provided That the pow ers duties and responsibil- taps but no su ch departm ent agency or officer shall exercise duch powers duties or responsibilities in a manner that render ineffective the provisions pf th is title TITLE V--ACCOUNTABILITY FOR INTELLIGENCE a c t iv it ie s 11 CONGRESSIONAL OVERSIGHT S e c 501 5 0 U S C 4131 a To th e ex ten t consistent with all applicable authorities and duties including those conferred by the C onstitution upon the executive and legislative branches of the Governm ent and to the extent consistent w ith due regard for the protection from unauthorized disclosure o f classified information and inform ation relating to intelligen ce sources and methods the D irector of C entral Intelligence and th e heads of all departments agencies and other en tities of the U nited S tates involved in in telli- gence activities sh all-- 1 keep th e Select Committee on Intelligence of the Senate and the Perm anent S elect C om m ittee on Intelligence of the House of R epresentatives hereinafter in th is section referred to as i th e intelligence com m ittees'' fu lly and currently in- formed of a ll intelligence activities w hich are the responsibility of are engaged in by or are carried out for or on behalf of any departm ent agency or entity of th e U nited States including any sign ifican t anticipated in telligen ce activity except that A th e foregoing provision shall not require approval of the intelli- gence com m ittees as a condition precedent to the initiation of any such anticipated intelligence activity and B if the Presi-I II Tfrfo -- n u t p n r t i t p f owonight of intaUigancs aedritiaa 257along with othor ma terial relating to mu rwrinii l NATIONAL SECURITY ACT ENCY dent determ ines it is essen tial to lim it prior notice to m eet ex- traordinary circum stances affecting vita l interests of the U nited States such notice sh all be lim ited to the ch airm and ranking m inority members o f th e intelligence comm ittees th e Speaker and m inority leader o f th e House of Representa- tives and th e m ajority and m inority leaders of the Senate 2 furnish any inform ation or m aterial concerning in telli- gence activities w hich is in th e possession custody or control o f any departm ent agency or en tity o f th e United States and w hich is requested by eith er o f th e intelligence comm ittees in order to carry out its authorized responsibilities and 3 report m a tim ely fashion to th e intelligence com m ittees any illegal intelligence activity or significant intelligence fail- ure and any corrective action th at has been taken or is planned to be taken in connection w ith such illegal activity or failure b The President sh all h illy inform th e intelligence com m ittees in a tim ely fashion o f in telligen ce operations in foreign countries other than activities intended solely for obtaining necessary in telli- gence for which prior notice w as not given under subsection a and sh all provide a statem ent o f th e reasons for not giving prior notice c The President and the in telligen ce com m ittees shall each es- tablish such procedures as may be necessary to carry out the provi- sions o f subsections a and b d th e t House of R epresentatives and th e Senate in consulta- tion w ith the Director of C entral In telligen ce shall each establish by rule or resolution o f such H ouse procedures to protect from un- authorized disclosure a ll classified inform ation ana all information relating to intelligen ce sources and m ethods fUmished to the intel- ligence com m ittees or to Members o f th e Congress under this sec- tion In accordance w ith such procedures each of the intelligence com m ittees ahnll promptly call to th e attention of its respective House or to any appropriate com m ittee or comm ittees of its re- spective House any m atter relating to intelligence activities re- quiring th e attention o f such House or such com m ittee or commit- tees e N othing in th is A ct sh all be construed as authority to with- hold inform ation from th e in telligen ce com m ittees on the grounds th at providing the inform ation to th e intelligence committees would constitute th e unauthorized disclosure o f classified informa- tion or inform ation relating to in telligen ce sources and methods endm ent to th e A ct enlan ce of th e duties o f the resignation death or insid en t by section 307 of Public Stat 526 tO VISIONS rs and regulations incone repealed insofar as they t and responsibilities eni duties and responsibillis title sh all be adm inisl requirem ents for adm inin the G overnm ent generreporting and th at nothainating or m odifying the any other departm ent onnection w ith such matofficer sh a ll exercise anv in a m anner th at w ill IS t o o ie R INTELLIGENCE IIGHT extent con sisten t w ith all lg those conferred by the jislative branches o f the t w ith due regard for the of classified inform ation sources and m ethods the heads o f a ll departm ents States involved in in tellin teiligen ce o f th e Senate se on In telligen ce of the r in th is section referred fully and currently inlich are th e responsibility ut for or on b eh alf of any U nited S tates including activity except th at A ire approval of th e in telli- g e n t to th e in itiation of ivity and B if th e Presi- VXJNDINO OF INTELLIGENCE ACTIVITIES Sec 502 5 0 U S C 414 a Appropriated funds available to an in telligen ce agency may be obligated or expended for an in telli- gence or intelligence-related activity only if-- 1 those funds were specifically authorized by the Congress for use for such activities or 2 in the case o f funds from the Reserve for Contingencies of th e Central Intelligence Agency and consistent with the provi-1 11So in original i 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