after the undertaking as a whole was completed or terminated. 35 Conclusion Section 501(b) of the National Security Act of 1947 must be interpreted in the light of section 501 as a whole and in light of the President's broad and independent constitutional authority 35 Section 502 of the National Security Act, 50 U.S.C. 414, generally limits the use of funds appropriated for intelligence activities to cases in which Congress has been given prior notice of the nature of the activities. Section 502(a)(2) allows expenditures when "in the case of funds from the Reserve for Contingencies of the Central Intelligence Agency and consistent with the provisions of section (501) concerning any significant anticipated intelligence activity, the Director of Central Intelligence has notified the appropriate congressional committees of the intent to make such funds available for such activity. This provision should be interpreted to allow the President to use funds from the Reserve for Contigencies in order to carry out operations for which he withholds notice in accord with section 501 (b). Section 502(a)(2)'s specific reference to section 501 should be taken to give the President implicit authorization to withhold notification of the expenditure of funds just as he withholds notification of the operation itself: to read it otherwise would mean that section 502 had effectively, though impliedly, repealed section 501's acknowledgement of the President's independent constitutional authority. It should be noted, however, that section 502(a)(2) is clumsily drafted; if read literally, it could be taken to suggest that Congress must always be notified in advance when funds appropriated for intelligence activities are to be used for covert operations. The Conference Committee commented on the language in question by noting that it did not expect situations to arise in which there would have to be prior notice under section 502 as to the funding of an activity that did not itself have to be reported under section 501; the Committee also indicated that if such a situation were to arise, it should be resolved in a spirit of "comity and mutual understanding." H.R. Conf. Rep. No. 373, 99th Cong., 1st Sess. 19 (1985), reprinted in 1985 U.S. Code Cong. & Admin. Nevs 952, 961-962. Accord S. Rep. 79, 99th Cong., 1st Sess. 5 (1985). Similarly, the House Committee Report indicated that "the same event. treated in the same way under new Section 502(a) and Section 501. H.R. Rep. No. 106 (Part 1) 8 (1985), reprinted in 1985 U.S. Code Cong.& Admin. News 952, 954. This supports the reasoning: outlined above. .. can be to conduct foreign policy. The requirement that the President inform certain congressional committees in a timely fashion" of foreign intelligence operation as to which those committees veke 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. Because the recent contacts with elements of the Iranian government could reasonably have been thought to require the utmost secrecy, the President was justified in withholding section 501(b) notification during the ongoing effort to cultivate those individuals and seek their aid in promoting the interests of the United States. Cxar. Kooper Charles J. Cooper 1. Presidential Findings. The President shall approve all covert action Findings in writing. Under Section 662 of the Foreign Assistance Act of 1961, is amended, all covert actions undertaken by the Central Intelligence Agency must be authorized by a Presidential Finding that each such operation is important to US national security. E.0. 12333 and this Directive establish that covert actions (intelligence special activities undertaken by components other than CIA also require a Presidential Finding Each covert action is also considered significant anticipated intelligence activity under Section 501 of the National Security Act and is subject to certain Congressional reporting procedures. The Congressional reporting procedures for significant intelligence activities apply to all agencies of the intelligence community Findings shall remain valid until formally cancelled. 2. In accordance with Executive Order 12333, the Centra: Intelligence Agency shall conduct covert actions unless the President specifically designates another agency of the govern ment. When the provision of substantial support by one government component to another is essential to the conduct of a covert action, indication of the extent and nature of that support shall be included as part of the Finding or Memorandum of Notification. However, the provision of routine support in the form of personnel, funds, equipment, supplies, transportation, training, logistics, and facilities by Government components other than CIA to support a covert action shall not in itself be considered a separate covert action by the supplying agency. 1048 You asked me to make a quick survey of the statutes that had been mentioned in connection with the apparent trafficking in arms with Iran to offer my opinion as to whether there was any potential criminal conduct involved. My preliminary opinion, based on limited research, is that there probably is not, though it does appear that the arms shipments may have been illegal. The statutes involved do not, for the most part, carry any criminal penalties, and we have no information that any false information was conveyed to Congress (as opposed to failure to report at all). 1) The National Security Act, which has been most often cited in media reports, requires reports to Congress concerning intelligence activities. Even if this provision of arms to Iran were to be considered an "intelligence activity" (which it may be, since apparently the CIA was involved at some stage), there are no criminal provisions for failure to report, and the statute itself contains a broad loophole, permitting the President in "extraordinary circumstances" to forgo reporting the proposed activity beforehand, so long as he thereafter reports "in a timely fashion." Neither phrase is defined. 50 U.S.C. $413. 2) The War Powers Act was apparently cited by Attorney General Meese in a speech on the Iran shipments and criticized by him as a potential infringement on Presidential power. However, that Act governs procedures required when the President decides to use military force outside the United States - a situation that, so far as I know, is not involved here. In any event, again there are no criminal penalties; the only penalty appears to be that use of the armed forces must cease within a given period of time absent congressional approval. See, 50 U.S.c. S 1541 et seq. 3) Because these particular overtures to Iran apparently involved arms, statutes governing arms shipments come into play, and there are a number of these. If the arms were given to Iran, their provision would presumably be governed by 22 U.S.C. $2301 et seq., governing military assistance and sales. If so, there are numerous requirements under that statute requiring certain human rights findings, reports to Congress, agreements as to use of the weapons for defense purposes only, etc., all of which I will assume for these purposes were ignored. See, specifically, 22 U.S.C. § 2318, requiring notification to Congress in the event of an unforeseen emergency requiring provision of arms to a country not otherwise qualified under the statute. Nevertheless, there is no criminal penalty prescribed. 4) Title 22, Chapter 39, governs arms export control, if the arms were sold to Iran. Again, there are various requirements that must be met before a country is eligible for sale of arms, and a report to Congress of all proposed sales is required. Section 2778 gives the President the power to control the export of defense articles, and requires the licensing of every person other than an officer or employee of the United States Government acting in an official capacity who exports arms. There is a criminal penalty attached to violations of this requirement, 22 U.S.C. $2778 (c), but so far as we know so far, nobody in this matter was acting except in an official capacity on behalf of the United States. 5) 18 U.S.C. $921 et seq are the criminal penalties governing sales and transport of firearms. The scenario as I understand it would involve only official conduct, however, which is privileged, just as it would be in an undercover operation. |