Lease or Loan of Aircraft to Foreign Countries for Assistance

in International Narcotics Control Under Subsection

506(a)(2) of the Foreign Assistance Act of 1961

T h e federal g o v e rn m e n t m ay lease o r loan D epartm ent o f D efense a irc ra ft to fo reig n c o u n trie s 

to a ssist in in te rn a tio n a l n arco tics c o n tro l u n d er the a u th o rity o f su b sectio n 5 0 6 (a )(2 ) o f th e 

F o reig n A ssistan ce A ct o f 1961.

June 4, 1990

M e m o r a n d u m O p i n i o n f o r t h e C o u n s e l t o t h e p r e s i d e n t

This memorandum responds to a request from David C. Miller, Jr., Special Assistant to the President and Senior Director, National Security Council, 

for our advice whether the federal government may lease or loan aircraft to 

foreign countries to assist in international narcotics control under the authority of subsection 506(a)(2) of the Foreign Assistance Act of 1961, as amended 

(the “FAA”), 22 U.S.C. § 2318(a)(2). For the reasons that follow, we conclude that aircraft may be leased to foreign countries to assist in international 

narcotics control under the authority of that provision.1

Discussion

Subsection 506(a)(2) of the FAA grants the President authority, inter alia, 

to draw down “defense articles” and “defense services” from the stocks of 

the Department of Defense “for the purposes and under the authorities o f ’ 

sections 481 through 489 of the FAA, 22 U.S.C. §§ 2291-2291h, if he determines and reports to Congress that the provision of such assistance is “in the 

national interest.” 22 U.S.C. § 2318(a)(2)(A)(i).2 Sections 481 through 489 

of the FAA relate to international narcotics control. In particular, subsection 

481(a)(4) of the FAA authorizes the President, “[notwithstanding any other 

provision of law, . . . to furnish assistance to any country or international 

organization, on such terms and conditions as he may determine, for the 

control of narcotic and psychotropic drugs and other controlled substances.” 

22 U.S.C. § 2291(a)(4) (emphasis added).3 The express grant of authority in

1 Both the D epartm ent o f State and the Defense Security A ssistance A gency concur in this conclusion.

2 Subsection 506(a)(2) o f the FAA also grants the President authority to draw dow n “defense articles” 

and “defense services" from the stocks of the D epartm ent o f Defense to provide international d isaster 

assistance under 22 U .S.C . §§ 2292-2292q, or to meet refugee and m igration needs under the M igration 

and R efugee A ssistance A ct o f 1962, as am ended, 22 U.S.C. §§ 2601-2606. 22 U.S.C. § 2318(a)(2)(A )(ii). 

The aggregate value o f the articles and services drawn dow n under the authority of subsection 506(a)(2)

is lim ited to $75 m illion per fiscal year. 22 U.S.C. § 2318(a)(2)(B ).

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subsection 506(a)(2) of the FAA to furnish assistance under subsection 

481(a)(4) of the FAA is clearly broad enough to encompass leases or loans 

of defense articles such as aircraft to foreign countries to assist in international 

narcotics control. Indeed, the term “defense article” is defined in subsection 

644(d)(1) of the FAA, 22 U.S.C. § 2403(d)(1), as including “any weapon, weapons system, munition, aircraft, vessel, boat or other implement of war.”

Conclusion

We conclude that the federal government may lease or loan Defense Department aircraft to foreign countries to assist in international narcotics control 

under the authority of subsection 506(a)(2) of the FAA, 22 U.S.C. § 

2318(a)(2).

J. MICHAEL LUTTIG

Acting Assistant Attorney General

Office o f Legal Counsel

3 B e c a u s e s u b s e c tio n 4 8 1 (a )(4 ) o f the FA A a u th o riz e s th e P re s id e n t to fu rn ish a s s is ta n c e 

“ [n o tw ith sta n d in g any other provision o f law,” we need not resolve the question w hether the A rm s 

E xport C ontrol A ct (the "A EC A ”) w ould otherw ise prohibit the lease o f defense articles such as aircraft 

under the FAA. Subsection 61(a) of the AECA specifically authorizes the President to “lease defense 

articles in the stocks o f the D epartm ent o f Defense to an eligible foreign country or international organ izatio n ” if he “determ ines that there are com pelling foreign policy and national security reasons” for 

such action. 22 U .S.C . § 2796(a). U n d er subsection 61(c) o f the AEC A , "lease[s] or loan[s]” o f such 

articles m ay be m ade “only under the authority o f this subchapter [22 U.S.C. §§ 2796-2796d] or chapter

2 o f p art II o f the F oreign Assistance A ct o f 1961 [22 U .S.C . § 2311 et seq.].” 22 U.S.C. § 2796(c).

Subsection 506(a)(2) o f the FAA, 22 U .S.C . § 2318(a)(2), is contained in “chapter 2 of part II o f the 

[F A A ],” see Pub. L. No. 87-195, 75 Stat. 424, 435-38 (1961), and thus subsection 61(c) does not appear 

o n its face to prohibit the making o f leases or loans under the authority o f FAA subsection 506(a)(2). 

N evertheless, we have been advised by Jerom e H. Silber, G eneral C ounsel o f the D efense Security 

A ssistance A gency, that despite the plain language o f subsection 61(c), there is som e question as to 

w hether subsection 61(c) w as intended to perm it the m aking o f leases under the authority o f the FAA. 

M r. S ilb er agrees, how ever, that this issue need not be resolved here in light o f the express grant o f 

a u th o rity in subsection 481(a)(4) of the FAA to furnish assistance "[n]otw ithstanding any other p ro v ision o f law .”

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