NATIONAL SECURITY COUNCIL 4575 WASHINGTON D C 20506 June 19 1991 ACTION MEMORANDUM FOR BRENT SCOWCROFT THROUGH NICHOLAS ROSTOW FROM STEPHEN RADEMAK SUBJECT Letter to Senator Murkowski on Timely Notice Report Language At Tab I is the letter from you to Senator Murkowski explaining our concerns with the proposed addition to the timely notice report language The letter is in response to his note to you of June 13 Tab III The letter has been reviewed and approved by Boyden Gray but he has certain additional concerns spelled put oin his attached memorandum to you Tab II If you disagree with the points made in Boyden's memo you probably should speak to him before signing the letter to Murkowski to make sure that all key players have the same understanding of where we are and where we are going Concurrences by RECOMMENDATION That you call Boyden Gray if appropriate letter to Senator Murkowski at Tab I Attachments Tab I Letter to Senator Murkowski Tab II Memorandum from Boyden Gray Tab III Incoming Correspondence and then sign the THE WHITE H O U S E WASHINGTON Dear Senator Murkowski I am writing in response to your request for Administration comments on the proposed addition to the report language on timely notice that you recently sent me The additional language would be included in the Joint Explanatory Statement of the Committee of Conference to the Intelligence Authorization Act for Fiscal Year 1991 We are disappointed to have to address the timely notice issue yet another time With the President's October 1989 letters to Senators Boren and Cohen explaining how he intends to notify Congress of covert actions we thought we had an agreement with your committee to return to the understandings that underlay the timely notice requirement when it was first adopted in 1980 The additional report language appears to depart from those o understandings and consequently gives rise to the very serious concerns outlined below We therefore strongly oppose the additional language and trust that our concerns will be taken into account during congressional consideration of the bill As the drafters of the addition surely recognize and intend the proposed change is potentially of great legal significance Because the 1991 Intelligence Authorization Act would repeal the existing timely notice provision and reenact it in slightly different form the conference report might well be given considerable weight in ascertaining the legal meaning of the requirement that notice be provided in a timely fashion With the addition you passed along the report could be construed to state that the provision's meaning and intent is to require notice to Congress of covert actions within a few days With this addition in other words the new timely notice provision could be interpreted to impose a statutory requirement that notice to Congress of covert actions always be provided within a few days To be sure the report refers to the President's October 1989 letters and therefore acknowledges that situations could arise in which the President would delay notice beyond a few days based upon his assertion of the authorities granted his office by the Constitution The proposed addition to the report would imply however contrary to the President's letter that any delay of notice beyond a few days on constitutional grounds would violate the statute Our concern over this issue is far from hypertechnical particularly in view of the potential applicability of the Independent Counsel statute Under existing law by contrast the President may assert a constitutional basis 2 for withholding notice beyond a few days without violating the statute I am perplexed that this addition to the report would be offered after all the concerned parties have agreed on so many occasions over the last several years to put this disagreement behind us by returning to the meaning of the in a timely fashion formulation as understood when it was first enacted in 1980 The formulation was not understood in 1980 to impose a statutory obligation on the President always to provide notice within a few days Rather the record makes clear that the formulation was intended to impose a statutory obligation no more restrictive than the Constitution would permit thereby preserving flexibility within the statute for the President to exercise his constitutional authority In contrast to the decision in 1980 not to foreclose the President's interpretation of the Constitution the proposed additional report language suggests an interpretation of the statutory requirement inconsistent with our constitutional interpretation We remain prepared to preserve the understanding reached in 1980 Sincerely Brent Scowcroft The Honorable Frank H Murkowski United States Senate Washington D C 20510-0202 THE WHITE H O U S E WASH INGTON June 19 1991 MEMORANDUM FOR BRENT SCOWCROFT FROM SUBJECT C BOYDEN GRA Letter to Senator Murkowski Regarding Timely Notice Report Lanqauqe____________________ I have reviewed the attached draft letter from you to Senator Murkowski and concur in it In so doing I want to reiterate-my understanding based on our meeting yesterday with the President that the Administration is withholding judgment on the question whether to veto the FY 1991 Intelligence Authorization bill because of the most recent addition to the report language o n ' timely notice While your letter to Senator Murkowski is not meant to crnvey a veto threat it is intended to signal that there is a significant possibility of a veto if our concerns are not satisfied If your understanding is different than mine I would appreciate your contacting me to discuss the matter before signing the letter You should also be aware that I have requested a legal opinion from the Department of Justice on whether and to what degree statutory law would permit the President to delay notice to Congress of covert actions beyond a few days if the 1991 Intelligence Authorization bill becomes law accompanied by the new report language I believe that we should not make a final decision on whether to recommend veto of the bill until we have a signed opinion from the Justice Department as I anticipate that the opinion could have a significant bearing on the decision Attachment O ffice o f Senator Frank H Murkowski Fax Transmission NUMBER OF PAGES LncladingCoverSheet 5 Senator Murkowski will be calling the General MESSAGE __________ LI___ ________________ _ about the phrase added fcy Senator Boren me a call Thanks v Jofcp 202 224-6665 - Voice o 202 224-5301 - Fax Please g i v e tHititeb States Senate MEMORANDUM oJune 13 1991 To General Scowcroft From Senator Frank Murkowski The attached report language on tim ely n otice notes th a t item #1 was d eleted because o f White House concerns th a t item #2 was deleted and th a t item # 2a was su b s titu te d The new phrase to be added is noted as #3 The addition o f the few words at the end o f the report language should persuade certain Democrats to accept the report language Before proceeding however 1 would appreciate having your w ritten views on the newly added phrase 1n a note to me person ally I appreciate your a tten tion to t h is Note th a t the d eletion s and additions have been accepted by the White House to date The only new material is noted as item #3 ttfwh W Ta 6 13 91 New F-eport Language Where Prior Notice Has Not Been Provided Subsection 503 c 3 provides that where a finding has not been reported to the intelligence committees pursuant to paragraph 1 or to the congressional leaders specified in paragraph 2 the President shall fully inform the intelligence committees in a timely fashion and shall provide a statement of the reasons for not giving prior notice This subsection incorporates without substantive change the requirement found in existing law section 501 b of the ational Security Act of 1947 that the President fully inform the intelligence committees in a timely fashion of covert actions for which prior notice was not given The Executive branch has asserted that the President's constitutional authorities and or existing law section 501 b of the National Security Act of 19 47 permit the President to' withhold notice' from the Committees for as long as he deems necessary Such arguments were made most strongly in a Memorandum to the Attorney General dated December 17 1986 from Charles J Cooper Assistant Attorney General Office of Legal Counsel Department of Justice entitled The President's Compliance with the 'Timely Notification' Requirement of Section 501 b of the National Security Act reprinted in Hearings before the Select Committee on Intelligence Oversight Legislation S HRG 100-623 pp 126-152 which concluded that the President had virtually unfettered discretion to choose the right moment for making the required notification Both intelligence committees expressed strong disagreement with this legal opinion when it came to light believing it to be clearly inconsistent with the understandings which underlay the 1980 Act In 1989 this Committee asked the newly-installed Bush Administration to reject the Cooper memorandum and to provide explicit assurances with respect to how the President intended to comply with the requirement for timely notice contained in section 501 b A similar request was made by the Bouse Permanent Select Committee on Intelligence in 1990 President Bush responded to these requests with similar letters to both Committees The text of the letter to the Chairman of this Committee is reprinted here in full 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 ActThat 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 intelligencer 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 will be based upon my assertion of the authorities granted this office by the Constitution I am sending a similar letter to Senator Cohen Sincerely GEORGE BUSH In re-enacting the phrase in a timely fashion which is the formulation contained in existing law the Committee wishes to emphasize and make absolutely clear that such action should not in any way be taken to imply agreement or acquiescence in the Cooper memorandum insofar as such memorandum interprets the timely fasM r m phrase as it exists in current law lAs far as the Committee is concerned r tthe S i explanation of tne committee's intent set forth herein constitutes the only authoritative interpretation of the cor hrase in a timely fashion as it appears in this bill phi At the same time however it is the intent of the Committee that this p r ovision be interpreted in a manner consistent with whatever authority the Constitution may provide If the Constitution in fact provides the President authority to withhold notice of covert actions for longer periods then the Committee's interpretation cannot be legally binding upon the President In his letter to the Committees reprinted above the President asserts that the Constitution in his view does provide such authority The Committee has never accepted this assertion but recognizes that this is a question that neither the Committee -3- nor the Congress itself-can resolve Congress cannot diminish by statute powers that are granted by the Constitution Nor can either the Legislative or Executive branch authoritatively interpret the Constitution which is the exclusive province of the Judicial branch Congress is however free to interpret the meaning of statutes which it enacts While the Committee recognizes that it cannot foreclose by statute the possibility that the President may assert a constitutional basis for withholding notice of covert actions for periods longer than a few _ days we believe that thej timely notice fCumulation CGflttS iired-- this d i h should itself be interpreted to require notice within a few days as the President himself has stated he intended to implement the existing statute Such an interpretation in dur view comes closest to meeting the needs of both branches in terms of satisfying their respective constitutional responsibilities ____________ V -- -- s---- President's stated intention to act under the timely notice requirement of existing law to make a notification within a few days is the appropriate y manner to proceed under this provision rgnd rnSk'4 'with what the Committee believes is its meaning and intent 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