DATES OF APPLICABILITY OF STATUTORY RESTRICTIONS RELATING TO PARAMILITARY ACTIVITIES IN NICARAGUA

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP10S01820R000200190001-0
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 17
• Document Creation Date: December 22, 2016
• Document Release Date: August 22, 2012
• Sequence Number: 1
• Publication Date: October 29, 1986
• Content Type: MEMO

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!OtURAMIuy FO.R_fliE RECORD
uctober 29, 1986
FRLH: David S. Addington
Counsel, Subcommittee on Legislation
SUBJECT: Dates of Applicability of Statutory Restrictions Relating to
Paramilitary Activities in Nicaragua
1. Suninar. The "Boland Amendment" restriction on use of funds for the
purpose of overthrowing the Government of Nicaragua was in force from December
21, 1982 to December 8, 1983. The "$24 million cap" restriction on use of
funds to support paramilitary operations in Nicaragua was in effect from
December 8, 1983 through September 30, 1984; however, any funds expended in
fiscal year 1984 prior to enactment of the $24 million ceiling would count
against the ceiling. A full prohibition on use of funds to support
paramilitary activities in Nicaragua applied from Oc:toder 1, 1984 through
October 11, 1984. Another full prohibition went into effect on October 12,
1984 and remained in effect through December 19, 1985. From December 4, 1985
to October 18, 1986, restrictions allowed only certain communications support
and certain infrastructure expenditures. As of October 18, 1986, the law
permitted a program of $100 million in aid to the Nicaraguan democratic
resistance under a number of restrictions and conditions. Also, since August
8, 1985, Nicaragua-related restrictions on certain foreign aid funds, and on
use of any authorized funds in contravention of international law without
authorization by law, have been in effect. The texts of the various
Nicaragua-related restrictions appear oelow.
2. The Boland Amendment. On December 21, 1982, the Boland Amendment
became law as section 793 of the Department of Defense Appropriation Act, 1983
incorporated in the Continuing Appropriations Resolution for Fiscal Year 1983
(Public Law 97-377). The Boland Amendment provided:
"Sec. 793. None of the funds provided in this Act may
be used by the Central Intelligence Agency or the
Department of Defense to furnish military equipment,
military training or advice, or other support for military
activities, to any group or individual, not part of a
country's armed forces, for the purpose of overthrowing the
Government of Nicaragua or provoking a military exchange
between Nicaragua and Honduras." [Rnphasis added]
The terra "this Act" refers to the DoD = propriation A t, 1983. That Act
provided the funds for U.S. Government intelligence activities only until the
p t that Section 751 of the
end of fiscal year 1983 (September 30, 1983), exce
- IJ 1 e f or 2,' 1-oil1~V for to yea S of t1 u5 rroprlated to tne
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Reserve for Contingencies of the CIA. Section 751 provided:
'
"Sec. 751. None of the funds appropriated by this Act for
programs of the Central Intelligence Agency shall remain
available for obligation beyond the current fiscal year, except
for funds appropriated for the Reserve, which snail remain
available until September 30, 1984."
Thus, the Boland Amendment, when it became law on December 21, 1982, nad the
following effect with respect to the CIA:
-- A one fiscal year prohibition to expire on September 30, 1983 on CIA
use of funds appropriated by the DoD Appropriations Act, 1983 (except for
the CIA Reserve).
-- A two fiscal year prohibition to expire on September 30, 1984 on CIA
use of funds appropriated by the DoD Appropriations Act, 1983 to the CIA
Reserve for Contingencies. 1/
3. Extension by Continuing Appropriations Resolution for FY 1984. On
Oc;.ober 1, lfiT_ , the Continuing Appropriations Resolution or Fiscal Year 1994
(Public Law 98-107) became law. The Preamble and Section 101(c) of that
Resolution provided:
"That the following sums are hereby appropriated, out
of any money in the Treasury not otherwise appropriated,
and out of applicable corporate or other revenues,
receipts, and funds for the several departments, agencies,
corporations, and other organizational units of the
Government for the fiscal year 1984, and for other
purposes, namely:
1/ Even after enactment of the Boland Amendment restricting use of funds
provided by the DoD Appropriations Act, 1983, the CIA Reserve contained funds
provided for two-year availability by the DoD Appropriations Act, 1982 (Public
Law 97-114, December 29, 1981, Sec. 752). These FY 1982 funds in the Reserve
were made available until September 30, 1983. Thus, even after enactment of
the Boland Amendment on December 21, 1982, funds technically were available to
the CIA in the Reserve that were not subject to the Boland Amendment
restriction. The significance of the technical availability of these FY 1982
funds not subject to the Boland Amendment may be slight given the historical
accounting practices of the CIA. Apparently, the CIA has not used funds from
the Reserve to pay the salaries of CIA personnel; they are paid from other
funds, which, during the relevant period, would have been subject to the
Boland Amendment restriction. Thus, although CIA may have had FY 1982 funds
in the Reserve tnat were not subject to the Boland Amendment restriction, the
CIA would have had no way to release, obligate or expend those funds except by
use of Boland Amendment restricted funds, since action by C LA-salaried
personnel is required to release, obligate or expend funds. In short, while
the CLk had available FY 1932 unrestricted funds in the Reserve, the
bureaucratic process of making use of those funds would have required use (by
ooligations or expenditures allocable to CIA staff salaries) of funds
restricted by the Boland Amendment.
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" . (c) Pendin enactment of the Department of
Defense Appropriation AAct, 1984, such amounts as may be
necessary for continuing activities . . . which were
conducted in fiscal year 1983 . . . but such activities
snall oe funded at not to exceed an annual rate for new
obligational authority of $247,000,000,000 . . . and
this level shall oe distributed on a pro rata basis . . .
and snail be available under the terms and conditions
provided for in the applicable appropriation Acts for
fiscal year 1983 . . Emphasis added
By virtue of this provision, the Boland Amendment restriction continued to
apply after Septemuer 30, 1983 to funds provided by the first FY 1984
Continuing Resolution. By operation of Section 102 of that Resolution, this
temporary extension of the applicability of the restriction expired on
November 10, 1983.
4. Additional Extension oy Further Continuing Appropriations Resolution
for FY 1984. On November 14, 1933, the further continuing appropriatic7.s
resolution for fiscal year 1984 (Public Law 98-151) became law. The Preamble
and Section 101(a) of the Further Continuing Appropriations Resolution
contained the same language as the first Continuing Resolution concerning
expenditures pending enactment of the Department of Defense Appropriation Act,
1984. Thus, the Boland Amendment restriction continued to apply, to funds
provided oy the FY 1984 Further Continuing Resolution, from November 14, 1983
until enactment of the DOD Appropriation Act, 1984. 2/
5. End of the Boland Amendment Restriction with DoD Appropriation Act,
1984. On December 8, 1983, the Department of Defense Appropriation Act, 1984
Public Law 98-212) became law. Section 775 of that Act provided:
"Sec. 775. During fiscal year 1984, not more than
$24,000,000 of the funds available'to the Central
Intelligence Agency, the Department of Defense, or any
other agency or entity of the United States involved in
intelligence activities may oe obligated or expended for
the purpose or which would have the effect of supporting,
directly or indirectly, military or paramilitary operations
in Nicaragua by any nation, group, organization, movement,
or individual."
The Intelligence Authorization Act for Fiscal Year 1984 (Public Law 98-215),
whicn became law on December 9, 1983, contained an identical provision
2/ The Boland Amendment restriction technically was not in force during the
funding niatus between midnignt Tnursday, !ovemoer 10, 1983 and November 14,
1933. However, sections X02, 103 and 107 of the Furtner Continuing
mppropriations Resolution for Fiscal Year 1984 would appear to render the
Nicaragua funding restriction technically applicable retroactively with
respect to obligations and expenditures during the funding niatus.
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(Sec. 108). The DoD Appropriation Act, 1984, enacted on December 8, 1983, did
not carry forward the Boland Amendment restriction. 3/ The $24,000,000 cap
provision of the FY 1984 DOD Appropriations Act and the FY 1984 Intelligence
Autnorization Act expired at the close of fiscal year 1984, on September 30,
1964.
6. Full Prohibition on Support for Paramilitary Activities Contained in
Temporary Continuing Resolutions. Oh Octouer 3, 1984, the First Continuing
Appropriations Resolution for Fiscal Year 1985 (Puolic Law 98-441) became
law. The Preamole and Section 101(a) of that Resolution provided in part:
"That the following sums are hereby appropriated, out
of any money in the Treasury not otherwise appropriated. . .
namely:
Sec. 101.(a) Such amounts as may be necessary for
continuing projects and activities which were conducted in
the fiscal year 1984, and for which provision was made in
the following appropriation Acts, at the rate for
operations, under the terms and conditions, and to the
extent and in the manner provided for in the fiscal year
1984 unless otherwise provided for in this joint resolution:
. . Department of Defense Appropriation Act, 1984 . . .."
[Emphasis added]
Section 106(c) of the Resolution provided that:
"No appropriations or funds made available pursuant to
this joint resolution to the Central Intelligence Agency,
the Department of Defense, or any other agency or entity of
the United States involved in intelligence activities may be
obligated or expended for the purpose or which would have
the effect of supporting, directly or indirectly, military
or paramilitary operations in Nicaragua by any nation,
group, organization, movement or individual."
3/ It should be noted that obligations and expenditures in fiscal year 1984
made prior to enactment of the $24 million ceiling counted against the ceiling.
It could be argued that the initial Boland Amendment restriction
technically continued to apply until September 30, 1984 with respect to the
funds appropriated on a two fiscal year availability oasis to the CIA Reserve
for Contingencies by the DoD Appropriations Act, 1983. It could equally well
oe argued that, on the contrary, Congress intended the $24,000,000 cap
provision in Section 775 of the DoD Appropriations Act, 1984 (and the
identical Section 108 of the Intelligence Authorization Act for FY 1984) to oe
the exclusive governing appropriations restriction witn respect to
paramilitary activities in Nicaragua, and it thus superseded the applicability
of the Boland Mmend,ent to the two-year money remaining in the Reserve
provided by the DoD Appropriation Act, 1983.
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Thus, a full prohibition on use of funds to support paramilitary operations in
Nicaragua took effect on October 3, 1984. 4/
The First Continuing Resolution, wnich would otherwise nave expired on
October 3, 1984 (the day it became law) was subsequently extended to 6 p.m.
EDT on October 5, 1984 (Puolic Law 98-453), October 9, 1984 (Public Law
98-455), and October 11, 1984 (Public Law 98-461). Thus, the full prohibition
on use of funds for support of paramilitary operations in Nicaragua which
entered into effect on October 3, 1985, remained applicable through October
11, 1985.
7. Fiscal Year 1985 Full Prohibition. On October 12, 1984, the Further j)o/
Continuing Appropriations Resolution for Fiscal Year 1985 (Public Law 98-473)
became law. Section 8066(a) of the Department of Defense Appropriations Act,
1985, as incorporated in the Resolution, stated: 0M
"Sec. 8066. (a) During fiscal year 1985, no funds
available to the Central Intelligence Agency, the
Department of Defense, or any other agency or entity of the
United States involved in intelligence activities may be
obligated or expended for the purpose or which would have
the effect of supporting, directly or indirectly, military
or paramilitary operations in Nicaragua by any nation,
group, organization, movement, or individual."
4/ No Nicaragua related prohibition was in effect during the funding hiatus
which occurred on October 1 and 2, 1984. However, sections 102, 103 and
106(c) of the first Continuing Resolution (Public Law 98-441) would appear to
render the full prohibition relating to Nicaragua applicable with respect to
ooligations and expenditures during the funding hiatus, except, technically,
with respect to two-year money appropriated to the Reserve for Contingencies
(and five-year money for CIA building construction) by the FY 1984 DOD
Appropriations Act (Sec. 747).
The two-year money appropriated to the CIA Reserve for Contingencies by
tie DOD Appropriations Act, 1984 (and authorized by the Intelligence
Putnorization Act for Fiscal Year 1984) was availaole for use free of
restriction after September 30, 1984, until the restriction contained in
Section-801 of the Intelligence Authorization Act for Fiscal Year 1985 (Public
Law-9-8-6187 took effect on November 8, 1984. See note 6 below. However,
because a) execution of a Reserve Release requires use of non-Reserve money
allocaole to CIA staff salaries (see note 1 above) and (o) the various
continuing resolutions made Nicaragua restrictions applicable to all money
available to CIA other than the two-year Reserve money, the two-year Reserve
money technically available between October 1 and Novemoer 8, 1984 for support
of paramilitary operations in Nicaragua could not have peen used, since it
could not nave been released witnout use of funds sunject to the Nicaragua
prohibition.
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Subsequent provisions of Section 8066 provided that the pronioition in Section
8066(a) would cease to apply if (1) the President submitted a report to
Congress after February 28, 1985 explaining the need for assistance for
paramilitary operations in Nicaragua and (2) Congress, under procedures for
expedited votes, approved such assistance, not to exceed $14 million, by a
joint resolution. The President submitted the report contemplated by Section
8066 on April 3, 19x5. The Congress did not pass a joint resolution approving
assistance, 5/ and the. prohibition contained in Section 8066(a) remained in
effect.
Thus, from October 12, 1984, a full prohibition existed on use of funds
available during fiscal year 1985 to CIA, DOD and other intelligence entities
to support paramilitary activities in Nicaragua. 6/ Subsequently, a statute
was enacted making clear that nothing in Section 8066(a), or the corresponding
prohibition in the FY 1985 Intelligence Authorization Act (see note 6),
pronibited the United States Government from exchanging information
5/ A joint resolution approving assistance (S.J. Res. 106) passed the Senate
on April 23, 1985; that same day, a joint resolution (H.J. Res. 239) approving
assistance failed of passage in the House.
6/ Section 801 of the Intelligence Authorization Act for Fiscal Year 1985
Public Law 98-61+3, November 8, 1984) provided identical treatment of the
question of support for paramilitary activities by incorporating by reference
the Continuing Resolution provision (Section 8066, DOD Appropriations Act
1985):
"Sec. 801. No funds authorized to be appropriated this Act or by the
Intelligence Authorization Act for fiscal year 1984 (Puolic Law 98-215) may be
obligated or expended for the purpose or which would have the effect of
supporting, directly or indirectly, military or paramilitary operations in
Nicaragua by any nation, group, organization, movement, or individual, except
to the extent provided and under the terms and conditions specified by House
Joint Resolution 648, making continuing appropriations for fiscal year 1985,
and for other purposes, as enacted."
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witn the Nicaraguan democratic resistance or from administering a specific
program of humanitarian assistance to the resistance. 7/
7/ Section 722 of the International Security and Development Cooperation Act
of 1985 (Public Law 99-83; August 8, 1985) authorized an appropriation of
$27,000,000, to remain available for obligation through March 31, 1986, for
numanitarian assistance to the Nicaraguan democratic resistance. The chapter
entitled "HUMANITARIAN ASSISTANCE FOR NICARAGUAN DEMOCRATIC RESISTANCE" of the
Supplemental Appropriations Act, 1985 (Public Law 99-88; August 15, 1985)
appropriated $27,000,000, to remain available for obligation through March 31,
1986, for humanitarian assistance to the Nicaraguan democratic resistance,
defining the term "humanitarian assistance" as "food, clothing, medicine and
other humanitarian assistance, and it does not include the provision of
weapons, weapons systems, ammunition, or other equipment, vehicles or material
wnicn can be used to inflict serious bodily harm or death." Section 102(b) of
the "GENERAL PROVISIONS" in that chapter of the Supplemental Appropriations
Act, 1985, provided that:
"(b) Nothing in this Act, section 8066(a) of the Department
of Defense Appropriations Act, 1985 (as contained in section 101
of Public Law 98-473), or section 801 of the Intelligence
Authorization Act for Fiscal Year 1985 (Public Law 98-618) shall
be construed to prohibit the United States Government from
exchanging information with the Nicaraguan democratic
resistance, or the obligation and expenditure, but only for the
purposes for which they are expressly made available, of the
funds appropriated by this chapter under the headings
'HUMANITARIAN ASSISTANCE FOR NICARAGUAN DEMOCRATIC RESISTANCE'
and 'ASSISTANCE FOR IMPLEMENTATION OF A CONTADORA AGREEMENT'."
Thus, Section 102(b) made clear that the prohibition on support for military
or paramilitary operations in Nicaragua did not apply to information excnange
or the specified humanitarian assistance program. Section 102(a), however,
provided that:
"(a) The prohibitions contained in section 8066(a) of the
Department of Defense Appropriations Act, 1985 (as contained in
section 101 of Puolic Law 98-473) and section 801 of the
Intelligence Authorization Act for Fiscal Year 1985 (Puolic Law
98-618) shall, without limitation as to fiscal year, apply with
respect to funds appropriated by this chapter under the headings
'HUMANITARIAN ASSISTANCE FOR NICARAGUAN DEMOCRATIC RESISTANCE'
and 'ASSISTANCE FOR IMPLEMENTATION OF A CONTADORA AGREEMENT'."
Thus, without fiscal year limitation, the pronioition on obligating or
expending funds for support of military or paramilitary operations in
%caragua applied to the $27,000,000 provided oy the Supplemental
Appropriations Act, 1985 for numanitarian aid to the Nicaraguan democratic
resistance.
See House Report 99-373, the conference report to accompany H.R. 2419, the
Intelligence Authorization Act for Fiscal year 1986, p. 16, for a discussion
o' t`)e scope of the human ~a_lan aid program as it relates to transportation.
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By its own terms, the prohibition contained in Section 8066(a) of the DOD
Appropriations Act, 1985, applied during fiscal year 1985, which ended on
September 30, 1985. However, the prohibition continued in force by operation
of a series of continuing appropriation resolutions through December 19,
1985. The preamble and Section 1(c) of the first continuing appropriations
resolution for fiscal year 1986 ( ublic Law 99-103; Septemoer 30, 1985)
provided:
"That the following sums are hereby appropriated, out of any money in
the Treasury not otherwise appropriated, and out of applicable corporate
or other revenues, receipts, and funds, for the several departments,
agencies, corporations, and other organizational units of the government
for fiscal year 1986, and for other purposes, namely:
(c) Such amounts as may be necessary for continuing
activities, not otherwise specifically provided for in this joint
resolution, which were conducted in the fiscal year 1985, for which
provision was made in the Department of Defense Appropriation Act, 1985,
under the current terms and :onditicns and at a rate for operations not in
excess o the current rate . . .." Emphasis added]
By virtue of this provision and Section 102(c) of the first continuing
appropriations resolution, the Section 8066(a) prohibition continued in force
after September 30, 1985 until November 14, 1985. A further continuing
appropriations resolution (Public Law 99-154) had the effect of extending the
prohibition from November 14, 1985 to December 12, 1985; another further
continuing appropriations resolution (Public Law 99-179) nad the effect of
extending it from Decemoer 12, 1985 to 6 p.m., EST, December 16, 1985; and yet
another further continuing appropriations resolution (Public Law 99-184) had
the effect of extending it from 6 p.m. EST on December 16, 1985 to Decerroer
19, 1985. 8/
8. Restrictions Relating to Foreign Aid Funds and Compliance with
International Obligations. On August 8, 1985, the International Security and
Development Cooperation Act of 1985 (Public Law 99-83) oecame law. Section
722(d) of that Act provided:
"(d) PROHIBITION RELATING TO MILITARY OR PARAMILITARY
OPERATIONS IN NICARAGUA. -- Notwithstanding any other provision
of law, no funds authorized to oe appropriated or otherwise made
available by this Act (except the funds authorized to oe
appropriated in this section), by the Foreign Assistance Act of
1961, or by the Arms Export Control Act shall be used to provide
assistance of any kind, either directly or indirectly, to any
person or group engaging in an insurgency or other act of
8/ The Section 8066(a) pronibition technically was not in force during a
funding niatus wnicn occurred on December 17, 1985. However, Sections 103 and
104 of Public Law 99-103 as amended by Public Laws 99-154, 179, and 184 would
appear to render the pronibition Lechnically appiicable retroactively with
respect to obligations and expenditures during the funding hiatus.
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reoellion against the Government of Nicaragua. The United
States snail not enter into any arrangement conditioning,
expressly or impliedly, the provision of assistance under this
Act or the purchase of defense articles and services under the
Arms Export Control Act upon the provision of assistance by a
recipient to persons or groups engaging in an insurgency or
other act of reoellion against the Government of Nicaragua."
In addition, Section 722(e) provided:
"(e) LIMITATION ON USE OF FUNDS AGAINST NICARAGUA. --
None of the funds authorized to be appropriated in this or any
other Act can be used to fund directly, or indirectly,
activities against the Government of Nicaragua which have not
oeen authorized by, or pursuant to, law and which would place
the United States in violation of our obligations under the
Charter of the Organization of American States, to which the
United States is a signatory, or under international law as
defined oy treaty commitments agreed to, and ratified by, the
Government of the United States."
Unlike previous statutory restrictions relating to Nicaragua, the limitations
in Section 722(d) on use of certain foreign aid funds, and in Section 722(e)
on compliance with international obligations, are not limited in scope to
actions by departments, agencies or entities involved in intelligence
activities.
9. Fiscal Year 1986 Prohibitions. Section 105 of the Intelligence
Authorization Act for Fiscal Year 1986 (Puolic Law 99-169) provided:
"Section 105. (a) Funds available to the Central
Intelligence Agency, the Department of Defense, or any other
agency or entity of the United States involved in intelligence
activities may be ooligated and expended during fiscal year 1986
to provide funds, materiel, or other assistance to the
Nicaraguan democratic resistance to support military or
paramilitary operations in Nicaragua only as authorized in
Section 101 and as specified in the classified Schedule of
Authorizations referred to in Section 102, or pursuant to
Section 502 of the National Security Act of 1947, or to Section
106 of the Supplemental Appropriations Act, 1985 (P. L. 99-88).
"(o) Nothing in this section precludes --
"(1) administration, by the Nicaraguan Humanitarian
Assistance Office estaolisned by Executive Order 12530, of
the program of humanitarian assistance to the Nicaraguan
democratic resistance provided for in the Supplemental
Appropriations Act, 1985, or
"(2) activities of the Department of State to solicit
such humanitarian assistance for the Nicaraguan democratic
resistance."
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Section 105(a) of the FY 1986 Intelligence Authorization Act thus
prohibited intelligence agencies from providing funds, materiel, or other
assistance to the Nicaraguan democratic resistance to support military or
paramilitary operations in Nicaragua, except pursuant to Section 101 and 102
of the Act (authorizing a classified amount for infrastructure expenditures
and communications equipment); pursuant to Section 502 of the National
Security Act of 1947 (relating to intelligence reprogrammings); or pursuant to
Section 106 of the Supplemental Appropriations Act, 1985 (providing for a
Presidential request for aid, and an expedited congressional vote on the
request). 9/
The Department of Defense Appropriations Act, 1986, incorporated in the
final continuing resolution for fiscal year 1986 (Public Law 99-190) -
incorporated oy reference the restriction contained in the Intelligence
Authorization Act. Section 8050 of the DOD Appropriation Act, 1986 provides:
"Sec. 8050. None of the funds available to the Central
Intelligence Agency, the Department of Defense, or any
other agency or entity of the lhited States invclved in
intelligence activities may be obligated or expended during
fiscal year 1986 to provide funds, materiel, or other
assistance to the Nicaraguan democratic resistance unless
in accordance with the terms and conditions specified by
section 105 of the Intelligence Authorization Act (Public
Law 99-169) for fiscal year 1986."
The prohibitions contained in Section 105 of the Intelligence
Authorization Act for FY 1986 and Section 8050 of the Department of
Defense Appropriations Act, 1986 applied by their terms during
fiscal year 1986, whicn ended on Septemoer 30, 1986. However, even
after these prohibitions expired, funds continued to oe unavailaole
tnrough October 18, 1986 to the same extent as if the prohibition
nad remained in force, oy operation of a series of continuing
appropriations resolutions.
9/ For a detailed explanation, see House Report 99-373, the conference report
to accompany H.R. 2419, the Intelligence Authorization Act for Fiscal Year
1986, pp. 14-17.
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The preamole and Section 101(0)(1) of the first continuing appropriations
resolution for FY 19d7 (Public Law 99-434; October 1, 1966) provided with
respect to the not-then-enacted Department of Defense Appropriations Act, 1987:
"That the following sums are hereoy appropriated, out of any money in
the Treasury not otherwise appropriated . . . for the several departments,
agencies, corporations, and other organizational units of the Government
for the fiscal year 1987, and for other purposes, namely:
" . . (b)(1) Such amounts as may be necessary are hereoy
appropriated for programs, projects, or activities, not otherwise
specifically provided for in this joint resolution, for which
appropriations, funds, or other authority would be available in the
following appropriations Acts:
11. . . Department of Defense Appropriations Act, 1987, H.R. 5438 as
provided for in section 101(c) of H.J. Res. 738 which passed the House on
September 25, 1986, and such Act shall be deemed to have passed the House
for purposes of this joint resolution;
" . . (4) No appropriation or fund made availaole or authority
granted pursuant to this subsection snail be used to initiate or resume
any project or activity or which appropriations, Funds or other
authority were not available during the fiscal year 1986." Empnasis
added
The preamole and section 101(a)(1) of the first continuing appropriations
resolution (Public Law 99-434) also provided with respect to the
not-then-enacted Military Construction Appropriations Act, 1987 (title II of
which contained funds for aid to the Nicaraguan resistance):
"That the following sums are hereby appropriated, out of any money in
the Treasury not otherwise appropriated . for the several departments,
agencies, corporations, and other organizational units of the Government
for the fiscal year 1987, and for other purposes, namely:
"SEC. 101. (a)(1) Such amounts as may be necessary are hereby
appropriated for programs, projects, or activities, not otherwise
specifically provided for in this joint resolution, for which
appropriations, funds, or other authority would be available in the
following appropriations Acts:
" . . . Military Construction Appropriations Act, 1987, H.R. 5052 as
passed by the House on June 25, 1986, and as passed oy the Senate on
August 13, 1986; and
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" . (5) No appropriation or fund made availaole or authority
ranted pursuant to this suosect on shal oe used to initiate or resume
any project or activity for wn ch appropriations, funds, or other
authority were not available during the fiscal year 1986." Emphasis
added
By virtue of these provisions of the first continuing appropriations
resolution for FY 1987, funds were not availaole under the resolution for
intelligence agency support for paramilitary operations in Nicaragua, since
such funds had not been availaole during fiscal year 1986 due to the
provisions of Section 105 of the Intelligence Authorization Act for FY 1986
and Section 8050 of the Department of Defense Appropriations Act, 1986. 10/
A further continuing appropriations resolution (Puolic Law 99-464,
October 9, 1986) extended the date of expiration of the first continuing
appropriations resolution (which by its terms expired on Octooer 8, 1986) to
October 10, 1986; another further continuing appropriations resolution (Puolic
Lair 99-465; October 11, 1986) extended the date of expiration of the first
continuing appropriations resolution to October 15, 1986; and yet another
further continuing appropriations resolution (Public Law 99-491; October 16,
1986) extended the date of expiration of the first continuing appropriations
resolution to October 16, 1986. The final continuing appropriations
resolution for fiscal year 1987 (Puolic Law 99-500) became law on Octooer 18,
1986. 11/
10. Fiscal Year 1987 $100 Million Program of Aid to the Nicaraguan
Democratic Resistance. Title II o the Military Construction Appropriations
Act, 1987, incorporated in the final continuing appropriations resolution for
fiscal year 1987 (Puolic Law 99-500) established a $100 million program for
10/ with respect to the program for $27 million in humanitarian aid for the
Nicaragua resistance (see note 7 above), funds for the program ceased to oe
available as of March 31, 1986. The pronioitions in the first continuing
appropriations resolution (Puolic Law 99-434) on resumption of programs for
which funds were not available would appear to nave pronibited use of funds to
provide humanitarian aid to the Nicaraguan resistance during the period
covered oy the temporary continuing resolutions at the oeginning of FY 1987.
11/ As in previous fiscal years (see notes 2, 4, and 8 above) funding
Hiatuses occurred oetween enactment of several of the temporary further
continuing appropriations resolutions. Under Section 502(o) of the National
Security Act of 1947, enacted by the Intelligence Autnorization Act for Fiscal
Year 1986, funds available to intelligence agencies (such as two-year money in
the CIA Reserve for Contingencies) could not oe obligated or expanded during
the hiatuses to support paramilitary operations in Nicaragua, since Congress
had denied funds for sucn activities. See H. Rept. 99-373, pp. 15-16.
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aid to the Nicaraguan democratic resistance. Section 206(a) in that title
provides:
"SEC. 206. (a)(1) The Congress hereby approves the provision of
assistance for the Nicaraguan democratic resistance in accordance with the
provisions of this title.
"(2) There are hereby transferred to the President for the purposes
of this section $100,000,000 of unooligated funds from such accounts for
which appropriations were made by the Department of Defense Appropriations
Act, 1986 (as contained in Public Law 99-190), as the President shall
designate."
Section 1351(a) of the National Defense Authorization Act, 1987 would
supersede to a limited extent the authority granted by Section 206 by
providing that the unooligated balances of Department of Defense FY 1986
appropriations transferred for the $100 million program of aid to the
Nicaraguan resistance may come only from certain defense appropriations
accounts. Section 1351(a) provides:
"(a) LIMITATION.--Notwithstanding title II of the Military
Construction Appropriations Act, 1987, or any other provision of law,
funds appropriated or otherwise made available to the Department of
Defense for any fiscal year for operation and maintenance may not be used
to provide assistance for the democratic resistance forces in Nicaragua.
If funds appropriated or otherwise made availaole to the Department of
Defense for any fiscal year are authorized oy law to oe used for such
assistance, funds for such purpose may only oe derived from amounts
appropriated or otherwise made available to the Department for procurement
(other than ammunition)."
Title II of the Military Construction Appropriations Act, 1987 as
incorporated in the continuing resolution earmarks portions of the $100
million of aid to the Nicaraguan resistance for certain purposes. Of the
total amount, $30 million may be used for humanitarian assistance only (Sec.
208(a)), and $3 million of the $30 million for humanitarian assistance may oe
used only to strengthen Nicaraguan resistance human rights programs (Sec.
208(0)). Also, of the total amount, $5 million may oe used only for the
Southern Opposition Bloc and $5 million may oe used only for the Misurasata
indian resistance force (Sec. 204(d)).
Title II of the Military Construction Appropriations Act, 1987 also
establishes limitations on the period of availability for ooligation and
expenditure of the $100 million transferred for aid to the Nicaraguan
resistance. The funds transferred are available for the same periods of time
as they were available under the Department of Defense Appropriations Act,
1986, except that the funds in any event cease to be availaole after September
30, 1987 (Sec. 206(c)). Tne $100 million oecomes availaole in three separate
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releases: (1) $40 million upon enactment, i.e., October 18, 1986 (Sec.
206(0)), (2) $20 million after Octooer 15, 1986 and 15 days after the
President makes a required report to Congress (Secs. 206(0) and 211(c)), and
(3) $40 million after February 15, 1987 and 15 days after the President makes
a required report to Congress (Secs. 206(0) and 211(e)). 12/
Title II of the Military Construction Appropriations Act, 1987 provides
that from the date of enactment (October 18, 1986) to February 15, 1987, funds
may be used under the program only for: (1) humanitarian assistance;
(2) logistics advice and assistance; (3) support for democratic political and
diplomatic activities; (4) training, services, equipment and supplies for
(a) radio communications, (o) collection and utilization of intelligence,
(c) logistics, and (d) small-unit skills, tactics and operations; and
(5) equipment and supplies for air defense (Sec. 211(o)(1)). The legislation
also provides that, during the same period, the assistance shall be limited by
type and value to the matters specified in the classified annex to the
President's communication of June 24, 1986 to the. Speaker of the House of
Representatives and the President of the Senate (Sec. 211(o)(2)). These
restrictions applicable from enactment to February 15, 1987 cease to apply
after that date if, and only if, after February 15, 1987, the President
reports to Congress that the Central American countries have not reached
agreement, the Nicaraguan government is not engaged in serious dialog
accompanied by a cease-fire and an end to constraints on freedom, and that no
reasonable prospect of agreement, dialog, cease-fire and an end to the
constraints on freedom exists without additional assistance to the Nicaraguan
resistance, and 15 days have passed since the President has so reported to
Congress (Sec. 211(e)).
Title II of the Military Construction Appropriations Act, 1987 also
provides three absolute restrictions applicable in administration of the
program. No U.S. military or civilian personnel may enter Nicaragua to
provide military advice, training, or logistical support to paramilitary
groups (Sec. 203(e)). No aid may oe provided to any group retaining in its
ranks any individual who has been found to engage in gross violations of
internationally-recognized numan rights, smuggling drugs, or significant
misuse of puolic or private funds (Sec. 204(o)). No U.S. military personnel
or executive branch employee (other than General Accounting Office personnel
[sic] or-Department of State Inspector General's office personnel engaged in
inspections, investigations, or audits with respect to the aid to the
Nicaraguan resistance) may provide any training or other service to, or
participate in providing assistance to, the Nicaraguan democratic resistance
within the land areas of Honduras and Costa Rica that are within 20 miles of
the border with Nicaragua (Sec. 216).
12/ Section 211(c) in title II of the Military Construction Appropriations
Act, 1987 prohibited delivery of weapons or ammunition to the Nicaraguan
democratic resistance under the title prior to September 1, 1986. Since the
Act only cecame law on October 18, 1986 as part of the final continuing
resolution, the restriction was moot jpon enactment.
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Title II of the Military Construction Appropriations Act makes clear that
nothing in that title authorizes any member or unit of the United States Armed
Forces to engage in comoat against the government of Nicaragua (Sec. 203(e)),
nor does anything in that title permit the President to furnisn additional aid
to the Nicaraguan resistance from funds other than the $100 million provided
by that title or funds, if any, otherwise specifically authorized by Congress
for that purpose (Sec. 209(c)).
Title II of the Military Construction Appropriations Act also includes
provisions designed to assure proper supervision and accountability with
respect to the $100 million program of aid to the resistance. Section 207(a)
provides that "the Secretary of State (or his designee) shall oe responsiole
for policy guidance, coordination, and supervision of United States Government
activities under this title." Section 207(D) provides in part that "any
agency to which funds transferred under section 6(a) [sic--section 206(a)] are
allocated shall estaolish standards, procedures and controls necessary to
assure that such funds are fully accounted for and are used exclusively for
the purposes authorized'by this title." The legislation also provides that
the presidential reports to Congress required for release of the second and
third installments of the $100 million must include a detailed accounting of
disbursements and a detailed statement of implementation of the accounting
standards, procedures and controls to assure full accounting and use of the
funds exclusively for authorized purposes (Sec. 214).
The Intelligence Authorization Act for FY 1987 (Public Law 99-569) and the
Department of Defense Appropriations Act, 1987 as contained in the further
continuing appropriations resolution for fiscal year 1987 (Public Law 99-500)
contain restrictions applicable to support for the Nicaraguan democratic
resistance by the Central Intelligence Agency, the Department of Defense, and
other agencies and entities of the United States involved in intelligence
activities. Section 106 of the Intelligence Authorization Act for FY 1987
states:
"SEC. 106. Funds availaole to the Central Intelligence Agency, the
Department of Defense, or any other agency or entity of the United States
involved in intelligence activities may be obligated and expended during
fiscal year 1987 to provide funds, materiel, or other assistance to the
Nicaraguan democratic resistance to support military or paramilitary
operations in Nicaragua only as authorized in section 101 and as specified
in the classified Schedule of Authorizations referred to in section 102,
or pursuant to section 502 of the National Security Act of 1947, or
pursuant to any provision of law specifically providing such funds,
materiel, or assistance."
In addition, Section 9045 of the Department of Defense Appropriations Act,
1987 provides:
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"SEC. 9045. None of the funds available to the Central Intelligence
Agency, the Department of Defense, or any other agency or entity of the
United States involved in intelligence activities may oe obligated or
expended during fiscal year 1987 to provide funds, materiel, or other
assistance to the Nicaraguan democratic resistance unless in accordance
with the term and conditions specified by section 106 of the Intelligence
Authorization Act for fiscal year 1987."
By virtue of Section 106 of the Intelligence Authorization Act for FY 1987 and
Section 9045 of the Department of Defense Appropriations Act, 1987, the
Central Intelligence Agency, the Department of Defense, and other intelligence
agencies and entities may not use funds to provide assistance to the
Nicaraguan resistance to support paramilitary operations in Nicaragua, except
(1) to the extent, if any, authorized by Sections 101 and 102 of the
Intelligence Authorization Act for FY 1987, (2) pursuant to Section 502 of the
National Security Act of 1947, relating to intelligence reprogramming of
funds, or (3) pursuant to an act of Congress specifically providing for such
assistance, sucn as title II of the Military Construction Appropriations Act,
1987.
11. Restrictions in Force. As of the end of the 99th Congress, the
following statutory restrictions apply to United States Government support for
paramilitary operations in Nicaragua:
-- Title II of the Military Construction Appropriations Act, 1987,
incorporated in the further continuing resolution for FY 1987 (Public
Law 99-500)(restrictions concerning $100 program of aid to the
Nicaraguan resistance)
-- Section 106 of the Intelligence Authorization Act for Fiscal Year
198 (Public Law 99-569)(restrictions concerning CIA, DOD, and other
intelligence agency or entity support for paramilitary operations in
Nicaragua during FY 1987)
-- Section 9045 of the Department of Defense Appropriations Act, 1987
incorporated in the further continuing resolution for FY 1987 (Public
Law 99-500)(restrictions concerning CIA, DOD, and other intelligence
.agency or entity support for Nicaraguan democratic resistance during
FY 1987)
Section 1351(a) of the National Defense Authorization Act, 1987
(restrictions on use of certain defense appropriation accounts to
assist Nicaraguan democratic resistance)
Section 722(d), International Security and Development Cooperation
Act of 1985 (Puolic Law 99-83)(restrictions on use of certain foreign
aid funds to assist any person or group in reoellion against
government of Nicaragua)
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Section 722(e), International Security and Development Cooperation
Act of 1985 (Public Law 99-83) (restriction on use of any funds for
activities against government of Nicaragua not both authorized by or
pursuant to law and consistent with international law). 14/
14! Section 203(d) of Title II of the Military Construction
Appropriations Act, 1987 as incorporated in the further continuing
appropriations resolution, 1987 (Puolic Law 99-500) provides: "The actions by
the United States under this title in response to the concerns described in
suosection (a) [concerning actions by Nicaragua] are consistent with the right
of the United States to defend itself and to assist its allies in accordance
with international law and treaties in force." It would thus appear that
Congress has, by operation of law, provided that the $100 million program of
aid to the Nicaraguan resistance satisfies_tne requirements of Section 722(e)
of the International Security and Development Cooperation Act of 1985.
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