LETTER TO DANTE B. FASCELL FROM THOMAS M. BOYD

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90M00005R001400120018-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 5
• Document Creation Date: December 27, 2016
• Document Release Date: November 6, 2012
• Sequence Number: 18
• Publication Date: April 8, 1988
• Content Type: LETTER

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Telephone: [phone]
0 8 APR 1966
T~: Ms. Annette Rooney, Analyst
Office of Management & Budget
Dear Annette:
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On Friday, Sue suggested that I send
this over to you in the event the Justice
letter was clear
Legislation Division
Office of .Congressional Affairs
2 abM i 533 OBSOLETE
PREVIOUS
EDITIONS.
OCA/LEG
Distribution:
Original -0 Signer
~*'OCA~Re g__s try
(8 April 1988)
STAT
STAT
STAT
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Honorable Dante B. Fascell
Chairman
Committee on Foreign Affairs
House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
Office of Legislative and Intergovernmental Affairs
This letter presents the views of the Department of Justice
with respect to certain constitutional issues raised by H.R.
3651, the "Antiterrorism and Arms Export Amendments Act of 1987."
The Department of Justice is concerned that the legislation, as
currently drafted, is subject to interpretations that would
unconstitutionally curtail the President's authority to conduct
the foreign relations of the United States. Accordingly, unless
the bill is amended so as to foreclose such interpretations, the
Department will recommend disapproval.
We understand that three of the Committee's subcommittees
have already received testimony on this bill from Allen Holmes,
the Assistant Secretary of State for Politico-Military Affairs,
as well as others in the Administration; accordingly, we will
discuss primarily those provisions that give rise to constitu-
tional concerns.
The bill would amend Section 40 of the Arms Export Control
Act, 22 U.S.C. 2780, to prohibit the United States from exporting
munitions items to countries that, as determined by the Secretary
of State, support international terrorism. Similarly, the United
States would be prohibited from providing financial assistance
for the acquisition of munitions items by any such country,
consenting to or providing a license for the transfer of muni-
tions items to any~such country, or "[o]therwise participating
directly or indirectly in, or tak[ing] any action to facilitate,
the acquisition of~any munition items by such country." Similar
prohibitions would, apply to United States residents and corpora-
tions, and foreign, subsidiaries controlled by a domestic concern.
G
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These prohibitions would be subject ~o waiver by the President in
certain circumstances. (Section 2.)
Many of the prohibitions contained in the bill are cast in
imprecise or undefined terms. For example, the United"States may
not "directly or indirectly" provide munitions items to a listed
country, nor may it "participat[e] directly or indirectly in, or
take any action to facilitate, the acquisition of any munitions
item by such country." (Section 2.) Similarly, the United
States may not *assist in the transfer of any munitions item
. directly or indirectly" without following certain pro-
cedures for the notification of Congress. (Section 8.) Terms
such as "directly or indirectly," "assist," "participating" and
"tak[ing] any action to facilitate" could be interpreted to
prohibit, for example, consultation between the United States and
one of its allies regarding transfers of munitions items the ally
may wish to make. Any such limitation on the President's
authority to discuss certain issues with foreign governments, or
to recommend or concur in courses of .action taken by our allies,
would pose grave constitutional problems. The risk of such an
interpretation is particularly great where, as here, nonspecific
terms are combined with the exceptionally broad definition of
"munitions item" in Section 2 (which appears to include items of
foreign manufacture that are never shipped into or through the
United States).
The courts have long recognized that the President possesses
inherent power, derived from the Constitution, to exercise great
discretion in managing the external relations of the country. As
the Supreme Court stated in United States v. Curtiss-Wright
ExDOrt Corv., "the President is the sole organ of the federal
government in the field of international relations -- a power
which does not require as a basis for its exercise an act of
Congress." 299 U.S. 304, 319-20 (2936). Congress, to be sure,
has the power to regulate foreign commerce and thus to prohibit
entirely the shipment of arms by the United States or a United
1 The bill would also change procedures and standards for the
issuance of arms export licenses and munitions item transfers, as
set forth in the Arms Export Control Act, the Export Administra-
tion Act of 1979, and the Foreign Assistance Act of 1961.
(Section 3, 4, and 6.) The United States would be prohibited
from providing assistance to governments that support inter-
national terrorism, again subject to waiver by the President.
(Section 5.) The President's reporting requirements to Congress
under the Arms Export Control Act and the Foreign Assistance Act
of 1961, as well as with respect to interagency transfers by the
Department of Defense, would be changed. (Sections 7, 8 and 9.)
Finally, 22 U.S.C. 1732 would be amended to specify that the
President may take whatever actions, not otherwise forbidden by
law, that are necessary to free American citizens wrongfully
imprisoned by foreign goverrunents.
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States citizen to a particular country. Yet that power does not
extend to circumscribing the President's inherent powers to
articulate the foreign policy of the United States in consulta-
tions with other governments. Accordingly, we believe that the
bill must be amended to make clear that it does not prohibit the
President or his subordinates in the executive branch from
communicating with foreign countries concerning arms transfers.
We understand that Mr. Holmes, in his testimony, expressed a
variety of policy reservations about the bill. In addition, the
Department wishes to noter~an apparent drafting error that could
create a potential national security problem. Sections 2(f) and
8 of the bill would provide exemption from the prohibitions
contained in. the bill if the requirements of Section 662 of the
Foreign Assistance Act of 1961 and Section~501 of. the National
Security Act of 1947 are met. Because this exemption is applica-
ble to the transfer of "any munitions item", however, it would
alter those requirements since section 501 is currently limited
to transfers of defense articles exceeding $1,000,000 in value.
50 U.S.C. 415. Thus, section 6 of the bill at a minimum should
be redrafted to state, "Notwithstanding the provisions of this
Act, the United States may transfer or assist in the transfer of
munitions items in accordance with the procedures provided under
Section 662 of the Foreign Assistance Act of 1961 and Title V of
the National Security Act of 1947." Such an amendment would
leave unaltered the current reporting requirements for
Congressional oversight of intelligence activities. Section 2(f)
of the proposed bill should then be deleted.
In light of our constitutional concerns, in the absence of
clarifying amendments responsive to the constitutional issues, we
would recommend to the President that he disapprove the proposed
legislation.
The Office of Management and Budget has advised this
Department that there is no objection to the submission of this
report from the standpoint of the Administration's program.
Sincerely,
Thomas M. Boyd
Acting Assistant Attorney General
2 See Letter from Charles J. Cooper, Assistant Attorney General,
Office of Legal Counsel, to Senator Arlen Specter at 2
(December 16, 1'987).
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that the exemption for intelligence
activities contained in Sections 2(f) and 8 is somewhat confusing
as currently drafted. We suggest that Section 2(f) be redrafted
to exempt those activities subject to the reporting requirements
of Title V of the National Security Act and that Section 8 be
deleted in its entirety.
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