I UNDERSTAND THAT ON FRIDAY THE SENATE DELETED SECTIONS 111 AND 112 FROM S. 1160 AND AGREED TO CONSIDER A SUBSTITUTE SECTION 111 OFFERED BY SENATOR MOYNIHAN.

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP92M00732R001000080052-2
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 23, 2016
• Document Release Date: April 28, 2014
• Sequence Number: 52
• Publication Date: July 17, 1989
• Content Type: LETTER

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OCA 2253-89
United States Department of State
inishiniton, AC 20520
Office of the Legal Adviser
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STAT
STAT
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Dear Mr. Chairmans
/ understand that on Friday the Senate deleted sections 111
and 112 from 8. 3.160 and agreed to consider a substitute
section 111 offered by Senator Moynihan. The substitute
language would apply to U.S. laws enacted on or after the date .
of enactment-of this act, which prohibit all U.S. assistance.
or all assistance under a specified, account, to any specific
foreign region, country, government, group or individual. The
provision would 'impose criminal penalties on U.S. Government
employees who solicit the provision of funds or material
assistance by any foreign or domeatic entity, and prohibit the.,
provision of U.S. assistance to any thirdparty, if the funds .
or assistance would have the purpose or direct effect of
furthering or carrying out the "same or similar activitietofor
which assistance is prohibited, Furthermore, this provision-'� -
can be superseded only by a provision of law that epeeifically
repealer modifies or supersedes it.
United States Department of State
W6ik1niporg. D.C. 20520
July 17, 1969
., 4., . �-y.'''t > -:.-J, 5 .rn:'"'.*:
...?-4`
1-' ..... While we appreciate Senator Moynihan'', willingnese te� - '--
consider modifications of his previous proposals, the naw:.,A4'&E,4
section 111 is still unacceptably vague. impossible to -
administer, and an impermissible intrusion on the Preeidint
� At�-'4 ",.1.
, . constitutional prerogatives. Such .a provision Is unneeecearn 4.4...111:
.to achieve compliance with statutory limitations on sPendirtga,Aw -
Moreover, it mould have. a serious detrimental effect on ths'A"''24'
w,4,..: conduct of U.S. diplomacy and the administration of u.dia:A.,
to potential criminal liability in cases w ere they wouldAhaveit,..tts.,
s,
tit.A,r!thrt, n Ct reason to believe that their conduct was unlawful..
-_; assistance programs, and would unfairly Ursa U,S..offiiiali'
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..P.dministration is strongly opposed to the new section: wewurecommend that the President disapprove the bill if thiiiVrPW4*4
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provision is included 'in finalassag .4
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.The_proposed amendment is sosentiallY an attempt tO
417,
preecribe to future Congresses what conaequences should
from any any prohibition on.apeistanee Whieh they may Choo0e4ea.
,..,:
adopt. It is an attempt to convert all future assistance r., ,,.
prohibitions into criminal statutes which encompass a widir;.,,,,.
--1.� ,,
range of of actione other than the prevision of assistance to thO.V..:ro.-V4:-.
. , ..-�e�.1.:04.�,.,,,...,-1:.-,:.
The Honorable
Claiborne Pell,
Senate Foreign ROlatiOnO,CoMmittae
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country in question. There is absolutely no need for such a
provision. U.S. assistance programs are already subject to the
Anti-Deficiency Act and a host of other legislative and.
regulatory previsions, if in a particular future case Congress/
wishes to adopt additional measures or to expand the scope of a
prohibition in a particular case, it should consider such
actions in light of the specific circumstances it may be
dealing with at that time. Each Congress should craft its Own
solutions, and not be hampered by the need specifically to undo
prior sweeping measures such as the current proposed amendment.
Furthermore, the language of the proposed amendment is
extremely vague and would be virtually impossible to
administer. It refers, for instance, to assistance to a third
Party or solicitation of funds where the 'purpose or direct
effect' would be to further or carry out 'the same or similar
Activities . . . for which United States assistance is
prohibited." sut statutory prohibitions on assistance usually
do not specify a series of activities for which assistance is
-
prohibited, and an 0 result the proposed amendment could be
interpreted to apply to all activities for which u.9.
assistance could have been provided but for the prohibition.
This would include virtually all forms of economic activity in
the country in question, as well as most forms of military,
political and governmental activity.
�'The result would be to sanction -- in so me instances with
criminal penalties -- any encouragement by U.S, Government
officers or employees (including members of Congress) of any
/insistence by anyone for virtually any activities in the .
specified country, and any U.S. essistance.to a third country'
which has the direct effect of furthering any such activities..
This would severely inhibit any dialogue with governmental or.
business leaders of such a country, and in the case of .
assistance to other countries, it would be almost impossible:to-
determine whether any particular assistance would have the -
effects prohibited. or example, economic-assistance of any
significance to a neighboring country could have a direct -
stimulating effect on economic activity in the country to whichl
aid is prohibited.
As a result, this proposed amendment could have many
undesirable results probably not intended by it. sponsor. For.
instance:
-- The annual Foreign Operations Appropriations aot
typically includes a prohibition (e.g., section 950 of the
1959 Act) on all assistance to a series of countries,
. including Angola and Cambodia. Significant economic aid to�
a country bordering any of theme could well have a direct
stimulating effect on economic activity in the named
country, and accordingly could be seen as violating the
proposed amendment.
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The 1989 Foreign Operations Appropriations Act
prohibita all assistance to the Noriega regime in Panama.
If that ware reenacted in a later year, the proposed
amendment could be interpreted to mean that we could do
nothing that would have a direct stimulating effect on
economic activities in Panama so long as Noriega is in
control. Yet the United Statee obviously engages in
activities that have exactly that effect -- most notably
through our involvement in the operation of the Canal and
our maintenance of U.S. forces in Panama.
-- The Foreign Assistance Act prohibits assistance to
a group of Communist countries (including Poland And
Hungary). If the pending International Cooperation Act of
1969 -- which effectively reenacts the Foreign Assistance
Act in modified form -- is enacted into law, any attempt to
encourage economic development in those countries through
others would be prohibited. We would, for instance, have
to distance ourselves completely from the effort to promote
development in Poland.
Most important, this proposed amendment would seriously
impair the President's ability to carry out his Constitutional
responsibility to conduct relation, with foreign governments
and to adminieter U.S. assistance programs. In effect, it
would constitute a pervasive regulation of-the conduct of
diviomatic conversational which Would be under the constant
shadow of the possible imposition of criminal or civil
liability if later deemed to further some prohibited activity
or to have some prohibited effect. This would apparently be
so, moreover, even in the absence of any specific intent on the
individual's part to violate the law. The same danger Would be
present in the administration of foreign assistance programs
and sensitive intelligence contectp. These are matters
assigned by the Constitution to the President, and COngress
cannot, and should not, attempt to hamstring the President with
such overreaching and inappropriate prohibitions. (These
constitutional aspects are dealt with at greater length in the,
June 20 letter of the Justice Department.)
In closing, I would simply state that the Secretary and-I'
are fully mindful of the concerns behind this proposal. YOU
can be confident that even if there were no prohibitione On kbe
books against the use of indirect means to take illegal
actions, this kind of activity on the part of AdMinisttatiOn
officials would never arise. By _working together we can
accomplish much more than would result from imposition of
legislation that so threatens the proper role of the executive.
Si tartly,
..)w once . agle
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IRAN-CONTRA PROVISION
-- Moynihan substitute section 111 (replacing 111/112) would:
o Impose criminal penalties on U.S. Government employees
who solicit the provision of funds or material assistance
by any foreign or domestic entity and
prohibit provision of U.S. assistance to third party
if funds or assistance would have purpose or direct effect
of furthering or carrying out 'same or similar activities'
for which assistance is prohibited by U.S. law.
o Apply to new U.S. laws (enacted on or after, date of
this act), which prohibit all U.S. assistance, or all
assistance under a specified account, to any specific
foreign region, country, government, group or individual;
-- Appreciate senator moynihan's willingness to consider
modifications of previous proposils but substitute still raises
many-of previous concerns.
o Administration strongly opposes substitute; would
recommend President disapprove bill if this provision
included.
o Such prohibitions are not needed to address the apparent;
concerns behind the provision. We are not in the business -
of using indirect means to circumvent prohibitions.- -
Proposed provision is extremely vague and overbroad.
o Statutory prohibitions on.assistance.usually do not
specify activities covered; in such a case, this prOVisiOn,.-,
could be interpreted to cover all activities in the.-- -
specified country for which U.S. assistance mightilaye-
� been provided.
� o This would sanction - in some cases with criminal:
penalties - any encouragement by U.S. government off jeers
or employees (including members of Congress) of Any..
assistance for virtually any activity in a specified,.,
country, and any U.S. assistance to a third country which
has the direct effect of furthering any such activities.
o Por example, almost any significant economic assistance
to a.neighboring third country could have a direct
stimulating effect on economy of named country.
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o Could have many unintended results or could inhibit
appropriate behavior, of particular concern where personal
criminal liability is at stake:
-- Annual Foreign Operations Appropriations Act
typically includes prohibition on all assistance to
series of countries, including Angola and Cambodia
(sec. 550 of 1989 Act). Significant economic aid to
bordering country could well haVe direct effect on
economy of named country, and thus be viewed as
violation.
-- 1989 Foreign Operations Appropriations Act
prohibits all assistance to Noriega regime in Panama.
If reenacted in subsequent years, could mean U.S.
could do nothing that would stimulate Panama economy
while Noriega in control. Yet U.S. heavily engaged in
such activities -- 11.9.1, Panama Canal and maintenance
of U.S. forces in Panama.
-- Foreign Assistance Act prohibits assistance to�
group of Communist countries (including Poland and
Hungary). If pending International Cooperation Act of
1989 is enacted (which effectively reenacts PAA in
modified form), any attempt to encourage economic
development in those countries through others would be
prohibited. For example, we would have to distance
ourselves completely from effort to promote
development in Poland.
Amendment attempts to prescribe to future Congresses
consequences of prohibition on assistance. In effect, it
imposes sweeping criminal sanctions on every future assistance
. prohibition.
o In future cases Congress should decide in light of
specific circumstances whether to expand scope of
prohibition.
o Each Congress should craft its own solutions, and not be
hampered by the need specifically to undo prior sweeping
measures such as current proposed amendment.
-- Amendment would seriously impair President's ability to
carry out his constitutional responsibilities.
o Constitutes pervasive regulation of conduct of
diplomatic conversations, under shadow of possible
criminal or civil liability.
� o Same as to administration of foreign assistance programs
and sensitive intelligence contacts.
o These matters are assigned to the President by the
constitution, and Congress should not attempt to intervene
with such overreaching and inappropriate prohibitions.
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