The President's Compliance with the "Timely Notification" Requirement of Section 501(b) of the National Security Act

• Court: Department of Justice Office of Legal Counsel
• Decided: December 17, 1986
• Status: Published

Opinion

The President’s Compliance with the “Timely Notification” Requirement of Section 501(b) of the National Security Act

Under the Constitution, the President has plenary authority to represent the United States and to pursue its interests outside the borders o f the country, subject only to limits contained in the Constitution itself and to such statutory limitations as the Constitution permits Congress to impose by exercising one o f its enumerated powers.

The conduct of secret negotiations and intelligence operations lies at the very heart of the President’s executive power. Statutory requirements that the President report to Congress about his activities in the realm o f foreign policy must be construed consistently with his constitutional authority. A statute requiring the President to give Congress notice o f covert operations “in a tim ely fashion” if he withholds prior notification should be construed to permit the President sufficient discretion to choose a reasonable moment for notifying Congress, including withholding notification at least until the secret diplomatic or covert undertaking has progressed to a point when disclosure will not threaten its success.

December 17, 1986

M em orandum O p in io n fo r th e A ttorney G eneral

This memorandum responds to your request that this Office review the legality of the President’s decision to postpone notifying Congress of a recent series of actions that he took with respect to Iran. As we understand the facts, the President has, for the past several months, been pursuing a multifaceted secret diplomatic effort aimed at bringing about better relations between the United States and Iran (partly because of the general strategic importance of that country and partly to help end the Iran-Iraq war on terms favorable to our interests in the region); at obtaining intelligence about political conditions within Iran; and at encouraging Iranian steps that might facilitate the release of American hostages being held in Lebanon. It is our understanding that the President, in an effort to achieve these goals, instructed his staff to make secret contacts with elements of the Iranian government who favored closer relations with the United States; that limited quantities of defensive arms were provided to Iran; that these arms shipments were intended to increase the political influence of the Iranian elements who shared our interest in closer relations between the two countries and to demonstrate our good faith; and that there was hope that the limited arms shipments would encourage the Iranians to provide our government with useful intelligence about Iran and to assist our efforts to free the Americans being held captive in Lebanon. 159 On these facts, we conclude that the President was within his authority in maintaining the secrecy of this sensitive diplomatic initiative from Congress until such time as he believed that disclosure to Congress would not interfere with the success of the operation. Section 501 of the National Security Act permits the President to withhold prior notification of covert operations from Congress, subject to the require­ ments that he inform congressional committees of the operations “in a timely fashion,” and that he give a statement of reasons for not having provided prior notice. We now conclude that the vague phrase “in a timely fashion” should be construed to leave the President wide discretion to choose a reasonable mo­ ment for notifying Congress. This discretion, which is rooted at least as firmly in the President’s constitutional authority and duties as in the terms of any statute, must be especially broad in the case of a delicate and ongoing operation whose chances for success could be diminished as much by disclosure while it was being conducted as by disclosure prior to its being undertaken. Thus, the statutory allowance for withholding prior notification supports an interpreta­ tion of the “timely fashion” language, consistent with the President’s constitu­ tional independence and authority in the field of foreign relations, to withhold information about a secret diplomatic undertaking until such a project has progressed to a point where its disclosure will not threaten its success.1

I. The President’s Inherent Constitutional Powers Authorize a Wide Range o f Unilateral Covert Actions in the Field of Foreign Affairs

A. The President Possesses Inherent and Plenary Constitutional Authority in the Field o f International Relations

“The executive Power shall be vested in a President of the United States of America.” U.S. Const, art. II, § 1. This is the principal textual source for the President’s wide and inherent discretion to act for the nation in foreign affairs.2 The clause has long been held to confer on the President plenary authority to represent the United States and to pursue its interests outside the borders of the country, subject only to limits specifically set forth in the Constitution itself

1 T he vagueness o f the phrase “in a tim ely fashion," to g eth er with the relatively am orphous nature o f the P resid en t’s inherent authority in the field o f foreign relations, necessarily leaves room for some dispute about the strength o f the P resid en t's legal p osition in w ithholding inform ation about the Iranian project from C ongress over a period o f several months. The rem ainder o f this mem orandum outlines the legal support for the P resid en t’s position, and does not attem p t to provide a com prehensive analysis o f all the argum ents and authorities on both sides o f the question. This caveat, w hich does not alter the conclusion stated in the accom panying text, reflects the urgent tim e pressures under which this memorandum was prepared. 2 T he C onstitution also m akes the President C om m ander in C hief o f the armed forces (A rticle II, § 2) and gives him pow er to m ake treaties and ap p o in t am bassadors, subject to the advice and consent o f the Senate (A rticle II, § 2), and to receive ambassadors and other public m inisters (A rticle II, § 3). The C onstitution also requires that the President “take Care th a t the Laws be faithfully executed” (Article II, § 3). These specific grants o f authority supplem ent, and to som e extent clarify, the discretion given to the President by the E xecutive Pow er C lause.

160 and to such statutory limitations as the Constitution permits Congress to impose by exercising one of its enumerated powers. The President’s executive power includes, at a minimum, all the discretion traditionally available to any sovereign in its external relations, except insofar as the Constitution places that discretion in another branch of the government. Before the Constitution was ratified, Alexander Hamilton explained in The Federalist why the President’s executive power would include the conduct of foreign policy: “The essence of the legislative authority is to enact laws, or, in other words to prescribe rules for the regulation of the society; while the execution of the laws and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate.”3 This fundamental distinction between “prescribing rules for the regulation of the society” and “employing the common strength for the common defense” explains why the Constitution gave to Congress only those powers in the area of foreign affairs that directly involve the exercise of legal authority over American citizens.4 As to other matters in which the nation acts as a sovereign entity in relation to outsiders, the Constitution delegates the necessary authority to the President in the form of the “executive Power.”5

3 The Federalist No. 75, at 450 (A. H amilton) (C. Rossiter ed. 1961). This num ber of The Federalist w as devoted prim arily to explaining why the power o f making treaties is partly legislative and partly executive in nature, so that it made sense to require the cooperation o f the President and the Senate in that special case. 4 C ongress' pow er “ [t]o declare W ar, grant Letters o f M arque and R epnsal, and make R ules concerning Captures on Land and W ater,” U.S. Const, art. I, § 8, cl I I , like the power “ [t]o define and punish Piracies and Felonies com m itted on the high Seas, and O ffences against the Law o f N ations,” id. art. I, § 8, cl. 10, and the pow er “(t]o regulate Com m erce with foreign N ations,” id. art. I, § 8, cl. 3, reflects the fact that the U nited States is, because o f its geographical position, necessarily a nation in which a significant num ber of citizens will engage in international com m erce. A declaration o f war immediately alters the legal clim ate for Americans engaged in foreign trade and is therefore properly treated as a legislative act necessarily binding on an im portant section o f the p nvate citizenry. Sim ilarly, C ongress' broad pow er over the establishm ent and maintenance o f the arm ed forces, U.S. Const, art. I, § 8 , els 12-16, reflects their obviously im portant dom estic effects. In accord with H am ilton's distinction, how ever, the actual command of the armed forces is given to the President in his role as C om m ander in Chief. Treaties (in whose making the Senate participates under A rticle II, § 2) have binding legal effect w ithin our borders, and are m ost notable for the significantly small role that C ongress plays. 5 As one w ould expect in a situation dealing w ith implied constitutional powers, argument and authority can be m ustered for the proposition that Congress w as intended to have a significant share o f the foreign policy powers not specifically delegated by the C onstitution. Perhaps the most oft-cited authority for this position is James M adison’s “H elvidius Letters” ( reprinted in part in E. Corw in, The President’s Control of Foreign Relations 16-27 (1917)), where he cautioned against construing the President’s executive pow er so broadly as to reduce C ongress’ pow er to declare w ar to a mere form ality. M adison's argum ent was directed principally at countering some overstatem ents made by A lexander Hamilton in his “ Pacificus L etters" (reprinted in part in E. Corw in, supra , at 8 -15). M adison’s argum ent is not properly interpreted, however, to imply that C ongress has as great a role to play in setting policy in foreign affairs as in dom estic matters. Even Jefferson, who was generally disinclined to acknow ledge im plied powers in the federal governm ent or in the President, wrote: “The transaction o f business with foreign nations is executive altogether; it belongs, then, to the head o f that departm ent, except as to such portions o f it as are specially subm itted to the senate Exceptions are strictly to be construed. . . ” 5 Writings o f Thomas Jefferson 161 (Ford ed. 1895). W hile we agree that Congress has som e pow ers to curb a President who persistently pursued a foreign policy that Congress felt was seriously underm ining the national interest, especially in cases where C ongress’ constitu­ tional authority to declare war was implicated, w ell-settled historical practice and legal precedents have confirm ed the P resident’s dom inant role in form ulating, as well as in carrying out, the nation’s foreign policy.

161 The presumptively exclusive authority of the President in foreign affairs was asserted at the outset by George Washington and acknowledged by the First Congress. Without consulting Congress, President Washington determined that the United States would remain impartial in the war between France and Great Britain.6 Similarly, the First Congress itself acknowledged the breadth of the executive power in foreign affairs when it established what is now the Department of State. In creating this executive department, Congress directed the department’s head (i.e., the person now called the Secretary of State) to carry out certain specific tasks when entrusted to him by the President, as well as “such other matters respecting foreign affairs, as the President of the United States shall assign to the said department.”7 Just as the first President and the first Congress recognized that the executive function contained all the residual power to conduct foreign policy that was not otherwise delegated by the Constitution, subsequent historical practice has generally confirmed the President’s primacy in formulating and carrying out American foreign policy.8 The Supreme Court, too, has recognized the President’s broad discretion to act on his own initiative in the field of foreign affairs. In the leading case, United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), the Court drew a sharp distinction between the President’s relatively limited inherent powers to act in the domestic sphere and his far-reaching discretion to act on his own authority in managing the external relations of the country. The Supreme Court emphatically declared that this discretion derives from the

6 Proclam ation o f the President, Apr. 2 2 , 1793, reprinted in 1 Messages and Papers o f the Presidents 156— 157 (J. R ichardson ed. 1896). President W ashington also warned th at his A dm inistration would pursue crim inal prosecutions fo r violations o f h is neutrality proclam ation. A lthough such prosecutions were upheld at the tim e, a rule that w ould prohibit su ch prosecutions w as recognized by the Suprem e Court relatively soon thereafter. Compare Henfield*s Case, 11 F. Cas. 1099, 1102 (C.C.D. Pa. 1793) (No. 6,360) (Jay, C .J.), with United States v. Hudson & Goodwin, 11 U.S. (7 C ranch) 32 (1812). It is worth em phasizing that Presidents have som etim es encountered constitutional obstacles when attem pting to pursue foreign policy goals through actions in the d om estic arena, but have rarely been interfered with in taking diplomatic steps, or even m ilitary actions short o f w ar, outside our borders. The present significance o f President W ashington's proclam ation has less to d o w ith the particular actions h e m ight have taken in the d om estic sphere than with his claim that foreign affairs are generally within th e constitutional dom ain assigned to the Executive. This claim is consistent w ith the C onstitution and has now been reinforced by long historical practice. 7 A ct o f Ju ly 27, 1789, 1 Stat. 28-29. See also Act o f Jan. 30, 1799, 1 Stat. 613 (sim ilar provision currently c o d ified at 18 U .S.C . § 953), which m ade it a crim e for any person to attem pt to influence the conduct of foreign nations w ith respect to a controversy w ith the U nited States. 8 T he fact that P residents have often ask ed C ongress to g iv e them specific statutory authority to take action in fo reign affairs may reflect a practical sp irit o f courtesy and com prom ise rather than any concession o f an absence o f inherent constitutional authority to proceed. For exam ple. President Franklin Roosevelt requested that C ongress repeal a provision of the Em ergency Price C ontrol Act that he felt was interfering with the war effort; he w arned, how ever, that if C ongress failed to act, he w ould proceed on the authority of his own office to take w hatever m easures w ere necessary to ensure the w inning of the w ar. 88 Cong. Rec. 7044 (1942). A s one w ould expect, o f course, C ongress has not alw ays accepted the most far-reaching assertions o f Presidential authority. See also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Constitution did not authorize President to take possession o f and o perate privately owned steel mills that had ceased producing strategically im portant m aterials during labor dispute); id at 635 (Jackson, J., concurring) (“ (The C o nstitution] enjoins upon [the governm ent’s] branches separateness but interdependence, autonom y but reciprocity. Presidential pow ers are not fix ed but fluctuate, depending upon their disjunction or conjunction w ith those o f C ongress.").

162 Constitution itself and that congressional efforts to act in this area must be evaluated in the light of the President’s constitutional ascendancy: It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations — a power which does not require as a basis fo r its exercise an act o f Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution. It is quite appar­ ent that if, in the maintenance of our international relations, embarrassment — perhaps serious embarrassment — is to be avoided and success for our aims achieved, congressional legis­ lation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better op­ portunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect o f information gathered by them may be highly neces­ sary, and the premature disclosure o f it productive o f harmful results .9 Based on this analysis, the Supreme Court rejected the argument that Congress had improperly delegated a legislative function to the President when it autho­ rized him to impose an embargo on arms going to an area of South America in

9 299 U.S. at 3 1 9 -2 0 (em phasis added). See also Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103* 109 (1948) (President “possesses in his own right certain powers conferred by the C onstitution on him as C om m ander-in-C hief and as the N ation’s organ in foreign affairs"); id. a t 109-12 (refusing to read literally a statute that seemed to require judicial review o f a presidential decision taken pursuant to his discretion to make foreign policy); id. at 111 (“ It w ould be intolerable that courts, w ithout the relevant inform ation, should review and perhaps nullify actions o f the Executive taken on information properly held secret.”) (quoted with approval in United States v. Nixon, 418 U.S. 683, 710 (1974)). In Perez v. Brownell, 356 U.S. 4 4 ,5 7 (1958) (citations om itted), the C ourt stated, “ Although there is in the Constitution no specific grant to C ongress o f pow er to enact legislation for the effective regulation o f foreign affairs, there can be no doubt o f the existence o f this pow er in the law -m aking organ o f the Nation." The Perez Court, how ever, w as review ing the constitutionality o f a statute in whose drafting the Executive Branch had played a role equivalent to one o f C ongress' ow n com m ittees. 356 U.S. at 56. Furtherm ore, the statute at issue in Perez provided that an A m erican national w ho voted in a political election of a foreign state w ould thereby lose his A m erican nationality. If the President lacks the inherent constitutional authority to deprive an American o f his nationality, then the Perez C o u rt's language about congressional “regulation of foreign affairs" may refer only to “ regulation o f dom estic affairs that affect foreign affairs." In any case, Perez should not be read to imply that C ongress has broad legislative pow ers that can be used to diminish the President's inherent Article II discretion.

163 which a war was taking place. The Court’s holding hinged on the essential insight that the embargo statute’s principal effect was merely to remove any question about the President’s power to pursue his foreign policy objectives by enforcing the embargo within the borders of this country.10 As the Court emphatically stated, the President’s authority to act in the field of international relations is plenary, exclusive, and subject to no legal limitations save those derived from applicable provisions of the Constitution itself.11 As the Court noted with obvious approval, the Senate Committee on Foreign Relations acknowledged this principle at an early date in our history:

“The President is the constitutional representative o f the United States with regard to foreign nations. He manages our concerns with foreign nations and must necessarily be most competent to determine when, how, and upon what subjects negotiation may be urged with the greatest prospect of success. For his conduct he is responsible to the Constitution. The committee consider this responsibility the surest pledge for the faithful discharge of his duty. They think the interference of the Senate in the direc­ tion of foreign negotiations calculated to diminish that responsi­ bility and thereby to impair the best security for the national safety. The nature of transactions with foreign nations, more­ over, requires caution and unity of design, and their success frequently depends on secrecy and dispatch.”

299 U.S. at 319 (emphasis added) (quoting U.S. Senate, Reports, Committee on Foreign Relations, vol. 8, p. 24 (Feb. 15, 1816)). It follows inexorably from the Curtiss-W right analysis that congressional legislation authorizing extraterrito­ rial diplomatic and intelligence activities is superfluous, and that statutes infringing the President’s inherent Article II authority would be unconstitutional.12 10 See 299 U .S. at 327 (effect of various em bargo acts w as to confide to the President “an authority which w as cognate to the conduct by him of the fo reign relations o f the governm ent’') (quoting Panama Refining Co. v. Ryan , 293 U.S. 388, 422 (1935)). T his im plies that w hile the President may in som e cases need enabling legislation in o rd er to advance his fo reig n policy by controlling the activities o f A m encan citizens on A m erican soil, he needs no such legislation for operations and negotiations outside our borders. 11 B ecause the Presidential action a t issue in Curtiss-Wright was authorized by statute, the C ourt's statem ents as to the P resid en t's inherent pow ers could be, and have been, characterized as dicta. See , e.g., Youngstown Sheet & Tube Co. v. Sawyery 343 U.S. 579, 635 n.2 (1952) (Jackson, J., concurring). We believe, how ever, that the Curtiss-Wright Court’s broad view o f the President’s inherent pow ers was essential to its conclusion th at C ongress had not unconstitutionally delegated legislative authority to the President. Further­ m ore, the Suprem e C ourt has since reaffirm ed its strong com m itm ent to the principle requiring the “utmost deference’' to Presidential responsibilities in the m ilitary and diplom atic areas. United States v. Nixon , 418 U .S. 6 8 3 ,7 1 0 (1 9 7 4 ). 12 See e.g.. United States ex rel. Knaujf v. Shaughnessy, 338 U.S. 537 (1950) (citations omitted): T he exclusion o f aliens is a fundam ental act o f sovereignty. The right to do so stems not alone from legislative pow er but is inherent in the executive power to control the foreign affairs o f the nation. W'hen C ongress prescribes a procedure concerning the adm issibility o f aliens, it is not d ealing alone w ith a legislative pow er. It is im plem enting an inherent executive power. Id. at 542. See also Worthy v. Herter, 2 7 0 F.2d 905, 9 1 0 -1 2 (D.C. C ir. 1959) (statute giving President authority to refuse to allow Americans to travel to foreign “ trouble spots” simply reinforces the President’s inherent constitutional authority to im pose the same travel restrictions).

164 B. Secret Diplomatic and Intelligence Missions Are at the Core o f the President’s Inherent Foreign Affairs Authority

The President’s authority over foreign policy, precisely because its nature requires that it be wide and relatively unconfined by preexisting constraints, is inevitably somewhat ill-defined at the margins. Whatever questions may arise at the outer reaches of his power, however, the conduct of secret negotiations and intelligence operations lies at the very heart of the President’s executive power. The Supreme Court has repeatedly so held in modem times. For example: Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its impor­ tant, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiations the Senate cannot intrude; and Congress itself is powerless to invade it. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) (emphasis in original). The Court has also, and more recently, emphasized that this core Presidential function is by no means limited to matters directly involving treaties. In United States v. Nixon, 418 U.S. 683 (1974), the Court invoked the basic Curtiss-Wright distinction between the domestic and interna­ tional contexts to explain its rejection of President Nixon’s claim of an absolute privilege of confidentiality for all communications between him and his advi­ sors. While rejecting this sweeping and undifferentiated claim of executive privilege as applied to communications involving domestic affairs, the Court repeatedly and emphatically stressed that military or diplomatic secrets are in a different category: such secrets are intimately linked to the President’s Article II duties, where the “courts have traditionally shown the utmost deference to Presidential responsibilities.” 418 U.S. at 710 (emphasis added).13 Such statements by the Supreme Court reflect an understanding of the President’s function that is firmly rooted in the nature of his office as it was understood at the time the Constitution was adopted. John Jay, for example, offered a concise statement in The Federalist : It seldom happens in the negotiation of treaties, of whatever nature, but that perfect secrecy and immediate dispatch are

13 See also id. at 706 (“a claim o f need to protect m ilitary, diplom atic, or sensitive national security secrets” would present a strong case for denying judicial pow er to make in camera inspections o f confidential material); id. at 712 n. 19 (recognizing “the President’s interest in preserving state secrets”). N ote also that the Curtiss-Wright Court expressly endorsed President W ashington’s refusal to provide the H ouse o f R epresentatives w ith information about treaty negotiations after the negotiations had been con­ cluded . 299 U.S at 32 0 -2 1 . A fortiori, such information could be w ithheld during the negotiations.

165 sometimes requisite. There are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives; and there doubtless are many of both descriptions who would rely on the secrecy of the Presi­ dent, but who would not confide in that of the Senate, and still less in that of a large popular assembly. The convention have done well, therefore, in so disposing of the power of making treaties that although the President must in forming them, act by the advice and consent of the Senate, yet he will be able to manage the business of intelligence in such manner as prudence may suggest. * * * So often and so essentially have we heretofore suffered from the want of secrecy and dispatch that the Constitution would have been inexcusably defective if no attention had been paid to those objects. Those matters which in negotiations usually require the most secrecy and the most dispatch are those preparatory and auxiliary measures which are not otherwise important in a na­ tional view, than as they tend to facilitate the attainment of the objects of the negotiation.14 Jay’s reference to treaties “of whatever nature” and his explicit discussion of intelligence operations make it clear that he was speaking, not of treaty nego­ tiation in the narrow sense, but of the whole process of diplomacy and intelli- gence-gathering. The President’s recent Iran project fits comfortably within the terms o f Jay’s discussion.

C. The President Has Inherent Authority to Take Steps to Protect the Lives o f Americans Abroad

Perhaps the most important reason for giving the federal government the attributes of sovereignty in the international arena was to protect the interests and welfare of American citizens from the various threats that may be posed by foreign powers. This obvious and common sense proposition was confirmed and relied on by the Supreme Court when it held that every citizen of the United States has a constitutional right, based on the Privileges or Immunities Clause of the Fourteenth Amendment, “to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government.”15 Accordingly, the Supreme 14 The Federalist No. 64, al 392-93 (J. Ja y ) (C. R ossiter ed. 1961) (em phasis in original). Jay went on 10 note that “ should any circum stance occur w hich requires the advice and consent o f the Senate, he may at any tim e convene them .” Id. at 393. Jay did not, how ever, suggest that the P resident w ould be obliged to seek such advice and consent fo r actions other than those specifically enum erated in the Constitution. 15 Slaughter-House Cases , 83 U.S. (16 W all.) 36, 79 (1873).

166 Court has repeatedly intimated that the President has inherent authority to protect Americans and their property abroad by whatever means, short of war, he may find necessary. An early judicial recognition of the President’s authority to take decisive action to protect Americans abroad came during a mid-nineteenth century revolution in Nicaragua. On the orders of the President, the commander of a naval gunship bombarded a town where a revolutionary government had en­ gaged in violence against American citizens and their property. In a later civil action against the naval commander for damages resulting from the bombard­ ment, Justice Nelson of the Supreme Court held that the action could not be maintained:

As the executive head of the nation, the president is made the only legitimate organ of the general government, to open and carry on correspondence or negotiations with foreign nations, in matters concerning the interests of the country or of its citizens. It is to him, also, the citizens abroad must look fo r protection o f person and o f property, and for the faithful execution of the laws existing and intended for their protection. For this purpose, the whole executive power of the country is placed in his hands, under the constitution, and the laws passed in pursuance thereof. . . .

Now, as it respects the interposition of the executive abroad, for the protection of the lives or property of the citizen, the duty must, o f necessity, rest in the discretion o f the president. Acts of lawless violence, or of threatened violence to the citizen or his property, cannot be anticipated and provided for; and the protec­ tion, to be effectual or of any avail, may, not infrequently, require the most prompt and decided action. Under our system of government, the citizen abroad is as much entitled to protec­ tion as the citizen at home. The great object and duty of govern­ ment is the protection of the lives, liberty, and property of the people composing it, whether abroad or at home; and any gov­ ernment failing in the accomplishment of the object, or the performance of the duty, is not worth preserving.

Durand v. Hollins, 8 F. Cas. I l l , 112 (C.C.S.D.N.Y. 1860) (No. 4,186) (emphasis added). Later, the full Court confirmed this analysis in an opinion holding that the President has inherent authority to provide bodyguards, clothed with federal immunity from state law, to protect judicial officers, even when they are travelling within the United States in the performance of their duties. In re Neagle, 135 U.S. 1 (1890). Rather than base its decision on a narrow analysis of the status of federal judges, the Court held that the Presidential duty to “take 167 Care that the Laws be faithfully executed” 16 includes “any obligation fairly and properly inferrible [sic] from” the Constitution.17 The Court specifically stated that these were not limited to the express terms of statutes and treaties, but included “the rights, duties, and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution.” 18 As the Court pointed out, Con­ gress itself had approved this position when it ratified the conduct of the government in using military threats and diplomatic pressure to secure the release of an American who had been taken prisoner in Europe. Noting that Congress had voted a medal for the naval officer who had threatened to use force to obtain the American’s release, the Court asked, “Upon what act of Congress then existing can any one lay his finger in support of the action of our government in this matter?” 19 If military force may be used on the President’s own discretion to protect American lives and property abroad, surely the less drastic means employed by President Reagan during the Iran project were within his constitutional authority.

II. Any Statute Infringing Upon the President’s Inherent Authority to Conduct Foreign Policy Would be Unconstitutional and Void

Congress has traditionally exercised broad implied powers in overseeing the activities of Executive Branch agencies, including “probes into departments of the Federal Government to expose corruption, inefficiency or waste.” Watkins v. United States, 354 U.S. 178, 187 (1957); see also McGrain v. Daugherty, 273 U.S. 135, 161-164 (1927). This power of oversight is grounded on Con­ gress’ need for information to carry out its legislative function. Because the executive departments are subject to statutory regulation and to practical restrictions imposed through appropriations levels, Congress can usually dem­ onstrate that it has a legitimate and proper need for the information necessary to make future regulatory and appropriations decisions in an informed manner. M cGrain, 273 U.S. at 178. As the Supreme Court has observed, however, the congressional power of oversight “is not unlimited.” Watkins, 354 U.S. at 187.20 It can be exercised only in aid of a legitimate legislative function traceable to one of Congress’ enumerated powers. See McGrain, 273 U.S. at 173-74. The power of oversight

16 U .S. C onst, art. II, § 3. 17 In re Neagle, 135 U.S. at 59. 18 Id. at 64 (em phasis added). 19 Id. That such a statute m ay have ex isted , see Expatriation Act of July 27, 1868, ch. 249, § 3, 15 Stat. 223, 224 (current version a t 22 U.S.C. § 1732) (authorizing the President to use such means, short o f war, as may be necessary to obtain the release o f A m ericans unjustly held prisoner by foreign governm ents), does not dim in ish the force o f the Supreme C o u rt's statem ent that no such statute would be needed to support such an ex ercise o f executive power. 20 It is w orth observing that Congress’ oversight pow ers are no more explicit in the C onstitution than are the P resid en t’s pow ers in foreign affairs See McGrain, 273 U.S. at 161.

168 cannot constitutionally be exercised in a manner that would usurp the functions of either the Judicial or Executive Branches. Thus, the Supreme Court has held that by investigating the affairs of a business arrangement in which one of the government’s debtors was interested, “the House of Representatives not only exceeded the limit of its own authority, but assumed a power which could only be properly exercised by another branch of the government, because it was in its nature clearly judicial.” Kilboum v. Thompson, 103 U.S. 168, 192 (1881). The same principle applies to congressional inquiries that would trench on the President’s exclusive functions. “Lacking the judicial power given to the Judiciary, [Congress] cannot inquire into matters that are exclusively the concern of the Judiciary. Neither can it supplant the Executive in what exclu­ sively belongs to the Executive." Barenblatt v. United States, 360 U.S. 109,112 (1959) (emphasis added).21 It is undoubtedly true that the Constitution does not contemplate “a complete division of authority between the three branches.” Nixon v. Administrator o f General Services, 433 U.S. 425, 443 (1977). Nevertheless, there are certain quintessential executive functions that Congress may not exercise in the guise of its “oversight power.” Congress, for example, may not give its own agents the power to make binding rules “necessary to or advisable for the administra­ tion and enforcement of a major statute.” Buckley v. Valeo, 424 U.S. 1, 281 (1976) (White, J., concurring in part). Nor may Congress unilaterally alter the rights and duties created by a prior statutory authorization. INS v. Chadha, 462 U.S. 919, 951 (1983). In general, the management and control of affairs committed to the Executive Branch, even those given to the Executive by Congress itself, must remain firmly in the control of the President. Myers v. United States, 272 U.S. 52, 135 (1926). A fortiori, the conduct of affairs committed exclusively to the President by the Constitution must be carefully insulated from improper congressional interference in the guise of “oversight” activities. This principle has three immediately relevant corollaries. First, decisions and actions by the President and his immediate staff in the conduct of foreign policy are not subject to direct review by Congress. “By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 164 (1803).22 Second, while Congress unquestionably possesses the power to make deci­ sions as to the appropriation of public funds, it may not attach conditions to Executive Branch appropriations that require the President to relinquish any of

21 On its facts, Barenblatt did not involve an inter-branch dispute. The C ourt upheld a contem pt citation issued by a H ouse Com m ittee against a w itness who refused to answ er questions about his ties with the C om m unist Party. 22 O bviously, C ongress may investigate and consider the President’s past actions when perform ing one of its own assigned functions (for exam ple, while giving advice and consent to treaties o r appointm ents, deciding w hether to issue a declaration o f war, o r during the im peachm ent process).

169 his constitutional discretion in foreign affairs. Just as an individual cannot be required to waive his constitutional rights as a condition of accepting public employment or benefits, so the President cannot be compelled to give up the authority of his office as a condition of receiving the funds necessary to carry out the duties of his office.23 To leave the President thus at the mercy of the Congress would violate the principle of the separation of powers in the most fundamental manner. The Federalist indicates that one great “inconveniency” of republican government is the tendency of the legislature to invade the prerogatives of the other branches, and that one of the main concerns of the Framers was to give the other branches the “necessary constitutional means and personal motives to resist [such] encroachments.”24 In an effort to address this problem, the Constitution provides that the President’s personal compen­ sation cannot be altered during his term of office,25 and it must be acknowl­ edged that the President’s constitutional independence is even more precious and vulnerable than his personal independence.26 Third, any statute that touches on the President’s inherent authority in foreign policy must be interpreted to leave the President as much discretion as the language of the statute will allow. This accords with well-established judicial presumption in favor o f construing statutes so as to avoid constitutional questions whenever possible.27 Because the President’s constitutional author­ ity in international relations is by its very nature virtually as broad as the national interest and as indefinable as the exigencies of unpredictable events, almost any congressional attempt to curtail his discretion raises questions of constitutional dimension. Those questions can, and must, be kept to a minimum in the only way possible: by resolving all statutory ambiguities in accord with the presumption that recognizes the President’s constitutional independence in international affairs.

23 T he doctrine o f unconstitutional co n d itio n s has pervasive application throughout the law. For a good general statem ent o f the doctrine, .see Frost & Frost Trucking Co. v. Railroad Comm’n , 271 U.S. 583 (1926): I f the state m ay com pel the surrender o f one constitutional right as a condition o f its favor, it may, in like m anner, com pel a surrender o f all. It is inconceivable that guaranties embedded in the C onstitution o f the U nited States m a y thus be m anipulated out o f existence. Id. at 594. 24 The Federalist No. 51, a t 321-22 (J. M adison) (C. R ossiter ed. 1961). 25U .S. C onst, art. II, § 1, cl. 7; The Federalist No. 51, at 321 (J. M adison) (C. R ossiter ed. 1961); id. No. 73, at 4 4 1 -4 2 (A . H am ilton). 26See 41 O p. A tt’y G en. 2 3 0 ,233 (1955): It is recognized th at the Congress m ay grant o r w ithhold appropriations as it chooses, and when m aking an appropriation may d ire c t the purposes to w hich the appropriation shall be devoted. It m ay also im pose conditions with re sp ec t to the use o f the appropriation, provided always that the conditions d o not require operation o f the G overnm ent in a w ay forbidden by the C onstitution. If the practice o f attaching invalid conditions to legislative enactm ents were perm issible, it is evident that the constitutional sy stem o f the separability o f the branches o f G overnm ent w ould be placed in the g ravest jeopardy. 27 “ [I]f ‘a construction o f th e statute is fa irly possible by w hich [a serious doubt o f constitutionality] may be a v o id e d / a co u rt should adopt that construction." Califano v. Yamasaki, 442 U.S. 682, 693 (1979) (quoting Crowell v. Benson , 285 U .S. 22 ,6 2 (1932)).

170 III. Statutory Requirements that the President Report to Congress about his Activities Must Be Construed Consistently with the President’s Constitutional Authority to Conduct Foreign Policy

In 1980, § 501(a) of the National Security Act of 1947 was amended to provide for congressional oversight of “significant anticipated intelligence activities.” This section now provides:

To the extent consistent with all applicable authorities and duties, including those conferred by the Constitution upon the executive and legislative branches o f the Government, and to the extent consistent with due regard for the protection from unau­ thorized disclosure of classified information and information relating to intelligence sources and methods, the Director of Central Intelligence and the heads of all departments, agencies, and other entities of the United States involved in intelligence activities shall —

(1) keep the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives . . . fully and currently informed of all intelligence activities which are the responsibility of, are en­ gaged in by, or are carried out for or on behalf of, any depart­ ment, agency, or entity of the United States, including any significant anticipated intelligence activity, except that (A) the foregoing provision shall not require approval of the intelli­ gence committees as a condition precedent to the initiation of any such anticipated intelligence activity, and (B) if the Presi­ dent determines it is essential to limit prior notice to meet extraordinary circumstances affecting vital interests of the United / States, such notice shall be limited to the chairman and ranking minority members of the intelligence committees, the Speaker and minority leader of the House of Representatives, and the majority and minority leaders of the Senate.

50 U.S.C. § 413(a) (emphasis added). For situations in which the President fails to give prior notice under § 501(a), § 501(b) provides:

The President shall fully inform the intelligence committees in a timely fashion of intelligence operations in foreign coun­ tries, other than activities intended solely for obtaining neces­ sary intelligence, for which prior notice was not given under subsection (a) of this section and shall provide a statement of the reasons for not giving prior notice. 171 50 U.S.C. § 413(b) (emphasis added).28 The delicate connection between the “timely notice” requirement of § 501(b) and the President’s inherent constitutional authority, acknowledged in § 501(a), is dramatically confirmed by a colloquy between Senators Javits and Huddleston, both of whom were on the committee that drafted this provision. Senator Javits asked: “If information has been withheld from both the select committee and the leadership group (as § 501(b) envisages), can it be withheld on any grounds other than ‘independent constitutional authority’ and, if so, on what grounds?” Senator Huddleston answered: “Section 501(b) recognizes that the President may assert constitutional authority to withhold prior notice of covert operation [sic], but would not be able to claim the identical authority to withhold timely notice under § 501(b). A claim of constitutional authority is the sole grounds that may be asserted for withholding prior notice of a covert operation.” 126 Cong. Rec. 17693 (1980) (emphasis added).29 If, as Senator Huddleston con­ tended, § 501(b) is to be interpreted to require the President to act on his inherent authority in withholding notice of covert operations until after the

28 Section 501 o f the National Security Act does not contem plate that pn o r notice o f “intelligence a ctiv ities” w ill be given in all instances. Subsection (b) o f § 501 m akes specific provision for situations in w hich “p rio r notice w as not given under subsection (a).” B ecause subsection (a) includes situations in which the P resident provides n otice to the full intelligence com m ittees under subsection (a)(1)(A ) and situations in w hich he p rovides prio r notice restricted to designated m em bers o f Congress, including the chairm en and ranking m em bers o f the H ouse and S enate intelligence com m ittees under subsection (a)(1)(B ), it seem s clear that subsection (b) contem plates situations in which no prio r notice has been given under either o f these provisions. 29 A sim ilar colloquy took place on th e flo o r o f the H ouse betw een Representative B oland, C hairm an o f the H ouse S elect C om m ittee on Intelligence, and R epresentative Hamilton: Rep. H am ilton: As I understand th at subsection, it allow s the President to w ithhold prior notice entirely: that is, he does not inform anyone in that circum stance. He only has to report in a tim ely fashion. Is th at a co rrect view of subsection (b)? Rep. B oland: In response to th e gentlem an, let m e say that the President m ust alw ays give at least tim ely notice. 126 C ong. R ec. 28392 (1980). Thus, R epresentative Boland clearly, if reluctantly, confirm ed Rep. H am ilton's interpretation. D uring the flo o r debates, several Senators also acknow ledged that the proposed legislation did not require that C ongress b e notified o f all intelligence activities prior to their inception. According to S en ato r N unn, the bill contem plated th at “ in certain instances the requirem ents of secrecy preclude any prior con su ltatio n w ith C ongress.” 126 Cong. Rec. 13127 (1980) (statem ent o f Sen. Nunn). See also id. at 13125 (statem ent o f Sen. H uddleston) (“Section 501(b) recognizes that the President may assert constitutional auth o rity to w ithhold prior notice of co v ert operations . . . . ” ); id. at 13103 (statem ent o f Sen. Bayh). In the course o f the floor debates, som e Senators stated that the situations in which prior notice w as not req u ired w ould be very rare. See, e.g., 126 Cong. R ec. 26276 (1980) (remarks o f Sen. Inouye). Such statem ents are o f little relevance to determ ining the scope o f the prior notice requirement. First, the executive branch has alw ays agreed th at instances o f deferred reporting will be rare and has consistently given prior notice. Second, § 501 at the very least p erm its the President to defer notice when he is acting pursuant io his independent constitutional authority; the scope o f this authority is determ ined, not by legislators' view o f the C onstitu tio n , but by the Constitution itself. Third, the draftsm en of § 501 decided that because the scope o f the P resid en t’s constitutional “authorities and duties” w as in serious dispute, the legislation w ould not attem p t to resolve the issues separating th e parties to the dispute. See 126 C ong. Rec. 13123 (1980) (statem ent o f Sen. Javits). The am biguities of subsection (b) reflect C ongress’ inability to override the executive b ran ch ’s view o f the P resid en t’s constitutional authority. T hat dispute cannot now be settled, contrary to the E x ecu tiv e’s position, by reference to the statem ents o f individual C ongressm en who had a narrow view o f the P resid en t’s con stitu tio n al role.

172 fact,30 then any further statutory limitations on the President’s discretion should be narrowly construed in order to respect the President’s constitutional inde­ pendence. The requirement that such after-the-fact notification be made “in a timely fashion” appears to be such an additional limitation. The entire analysis in this memorandum supports the proposition that the phrase “in a timely fashion” must be construed to mean “as soon as the President judges that disclosure to congressional committees will not interfere with the success of the operation.” To interpret it in any other way — for example, by requiring notification within some arbitrary period of time unre­ lated to the exigencies of a particular operation — would seriously infringe upon the President’s ability to conduct operations that cannot be completed within whatever period of time was read into the statutory provision.31 Further­ more, several putatively discrete intelligence “operations” may be so interre­ lated that they should realistically be treated as a single undertaking whose success might be jeopardized by disclosure prior to its completion.32 Thus, a number of factors combine to support the conclusion that the “timely fashion” language should be read to leave the President with virtually unfet­

30 Senator H uddleston’s interpretation is not necessarily correct, because the President may be able to withhold prior notice even w ithout invoking his independent constitutional authority. 31 On the floor o f the Senate, the b ill's sponsor indicated that his personal view o f the President’s constitutional pow ers w as very narrow , and that he wanted the relevant congressional com m ittees notified “as soon as possible.” H e acknow ledged, how ever, that the executive branch took a different view , and that he expected “that these matters w ill be worked out in a practical way.” 126 Cong. Rec. 13096 (1980) (rem arks o f Sen. Huddleston). These statem ents show that the legislation was not thought to preclude the President from acting on his own view o f his ow n constitutional powers. In guarding against such im proper interference, the President’s own interpretation o f his constitutional powers “is due great respect” from the o ther branches. See United States v. Nixon , 418 U.S. 683, 703 (1974). 32 In his prepared testim ony on S. 2284, President C arter’s CIA Director, Stansfield Turner, stated: Prior reporting would reduce the President’s flexibility to deal with situations involving grave danger to personal safety, o r which dictate special requirem ents for speed and secrecy. On the other hand, activities which would have long term consequences, o r w hich would be carried out over an extended period o f tim e should generally be shared with the Congress at their inception, and I would have no objection to m aking this point in the legislative history. National Intelligence Act o f 1980: Hearings before the Senate Select Comm, on Intelligence, 96th Cong., 2d Sess. 17 (1980) (em phasis added). T urner’s testim ony cannot properly be interpreted to im ply that all “long term ,” as opposed to “short term ,” projects require prior notice. First, T urner drew a distinction betw een projects involving great personal danger or requiring speed and secrecy and projects of long duration or w ith long term consequences. He did not address projects that are both long term and that involve danger to personal safety, such as the recent Iranian initiative. The inadvisability o f prior reporting applies as forcefully to such a project as to “short term ” projects that involve personal safety. Second, Turner w as careful not to say that long term projects m ust alw ays be reported at their inception: he said only that they w ill generally be so reported. In a colloquy w ith Senator B ayh concerning the word “generally,” Turner stressed that “one has to be a little cautious” in m aking such a statem ent because “ it will be quoted back from these hearings for years to com e.” Hearings, supra , at 32. T urner never stated that the Executive would or should give prior notice o f all long-term projects. Third, a distinction between long and short-term projects would virtually force the President to prefer m ilitary to diplom atic initiatives in situations like the one at issue in this m emorandum, w hich could not have been C ongress’ intent. In any event, S. 2284 w as not enacted, and the full C ongress never had its attention directed to T u rn er’s statements. Those statem ents are therefore not a significant aid in interpreting § 501(b). As we have show n, both the text o f the statute and the colloquies on the floor o f the House and Senate indicate that C ongress did not require prior notice when the President w as acting pursuant to his independent constitutional authority. In perm itting “tim ely notice” in § 501(b), C ongress made no distinction betw een long and short term projects, and no such distinction should be read into the statute.

173 tered discretion to choose the right moment for making the required notifica­ tion. The word “timely” is inherently vague;33 in any statute, it would ordi­ narily be read to give the party charged with abiding by a timeliness require­ ment the latitude to interpret it in a reasonable manner. Congress apparently thought that the notification requirement was meant to limit the President’s exercise of his inherent authority, while at the same time Congress acknowl­ edged the existence and validity of that authority. Because the President is in the best position to determine what the most reasonable moment for notifica­ tion is, and because any statutory effort to curtail the President’s judgment would raise the most serious constitutional questions, the “timely fashion” language should be read, in its natural sense, as a concession to the President’s superior knowledge and constitutional right to make any decision that is not manifestly and indisputably unreasonable.34 This conclusion is reinforced by the nature of intelligence operations, which are often exceptionally delicate undertakings that may have to extend over considerable periods of time. The statute’s recognition of the President’s authority to withhold prior notification would be meaningless if he could not withhold notification at least until after the undertaking as a whole was completed or terminated.33

33 T h e statute uses a m ore precise p h rase in § 501(a), w here it requires that certain com m ittees be kept “ fully and currently inform ed” of activ ities not covered by § 501(b). T his phrase was interpreted by the S enate C o m m ittee to m ean that “arrangem ents fo r notice are to be made forthw ith, w ithout delay.” S. Rep. N o. 730, 96th C ong., 2d Sess. 9 (1980), reprinted in 1980 U .S.C.C.A.N . 4192, 4199. N o such interpretation w as placed on the “tim ely fashion” language o f § 501(b). See id. at 12, reprinted in 1980 U .S.C.C.A.N., at 4 2 0 2 -0 3 . 34 T he legislative history o f § 501(a) specifically indicated that ‘‘[n]othing in this subsection is intended to expand o r to contract o r to define w hatever m ay be the applicable authorities and duties, including those c on ferred by the C onstitution upon the E xecutive and L egislative branches.” S. Rep. No. 7 3 0 ,96th C ong., 2d Sess. 6 (1980), reprinted in 1980 U .S.C .C .A .N . 4192, 4196. Furtherm ore, the Senate Committee acknow l­ edged th at it was “u ncertain” about the distribution o f pow ers between the President and Congress in the national security and foreign policy area. See id. at 9, reprinted in 1980 U .S.C .C .A .N ., at 4199. 35 Section 502 o f the N ational Security A ct, 50 U.S.C. § 414, generally lim its the use o f funds appropriated fo r intelligence a ctiv ities to cases in w hich C ongress has been given prior notice o f the nature o f the activities. Section 502(a)(2) allow s expenditures w hen “in the case o f funds from the Reserve for C ontingencies o f the C entral Intelligence A gency and consistent w ith the provisions of section [501] concerning any significant anticip ated intelligence activity, the D irecto r o f C entral Intelligence has notified the appropriate congres­ sional com m ittees o f the intent to m ake such funds available for such activity.” This provision should be interp reted to allow the President to u se funds from the R eserve for C ontingencies in order to carry out o peratio n s fo r w hich h e w ithholds n otice in accord w ith § 501(b). Section 502(a)(2)’s specific reference to § 501 should be taken to give the President im plicit authorization to w ithhold notification o f the expenditure o f funds ju s t as he w ithholds notification o f the operation itself: to read it otherw ise would mean that § 502 had effectiv ely , though im pliedly, repealed § 501 ’s acknow ledgem ent o f the P resident's independent consti­ tutio n al authority. It should be noted, how ever, that § 502(a)(2) is clum sily drafted; if read literally, it could be taken to sug g est th at C ongress m ust always be n o tified in advance w hen funds appropriated for intelligence activities are to be used fo r covert operations. The C onference C om m ittee com m ented 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 § 502 as to the funding o f an activ ity that did not its e lf have to be reported under § 501; the Com m ittee also indicated that if such a situation w ere to arise, it should be resolved in a spirit o f “com ity and mutual understanding.” H.R. C onf. R ep. No. 3 7 3 ,99th C ong., 1st Sess. 19 (1985), reprinted in 1985 U.S.C.C.A.N . 9 5 2 ,9 6 1 -6 2 . Accord S. R ep. 79, 99th C ong., 1st Sess. 5 (1985). Sim ilarly, the H ouse C om m ittee Report indicated that “the same e v e n t. . . can be 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.C.C.A.N. 952, 954. T his supports the reasoning outlined above.

174 C onclusion

Section 501(b) of the National Security Act of 1947 must be interpreted in the light of § 501 as a whole and in light of the President’s broad and indepen­ dent constitutional authority to conduct foreign policy. The requirement that the President inform certain congressional committees “in a timely fashion” of a foreign intelligence operation as to which those committees were 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 § 501(b) notification during the ongoing effort to cultivate those individuals and seek their aid in promoting the interests of the United States.

C h a r l e s J. C o o p e r Assistant Attorney General Office o f Legal Counsel