e*J* 
SECRETARY      OP      THE      ARMY 
WASHINGTON 
9  May  1983 
MEMORANDUM  FOR  THE  SECRETARY  OF  DEFENSE 
SUBJECT:   Sensitive  DOD  Support 
Activities  (S) 
aware 
I 
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ea 
the  Department  of  Defense  (DOD) 
istic  support  to  the 
for  DOD 
   activities 
(covert  action),  as  reviewed  by  the  National  Security  Planning 
Group  (NSPG)  and  approved  by. the  President.   With  incgeasinq 
frequency,  due  largely  to  the  Presidential  Findings^      g| 
thefHBhas  been  requesting  DOD  support 
wnich  should  be  CSKsideredsignif  icant  and  raises  some  diffi- 
cult policy  and  legal  questions.   Three  examples  of  signifi- 
cant and  sensitive  DOD  support  which  have  been  request* 
HP|   |in  connection  with  its  activities! 
are  set  forth  in  Tab  A. 
(S)   The  purpose  of  this  memorandum  is  to  raise  several 
issues  regarding  the  manner  in  whichjJUf requests  for  DOD 
support  are  reviewed  within  the  appropriate  agencies  of  the 
Executive  Branch  and  are  reported  to  Congress,  if  necessary. 
These  types  of  issues  have  taken  on  special  significance  in 
light  of  the  increased  Congressional  and  media  interest  in 
this  area.   This  memorandum  ic  not  intended  to  challenge  the 
validity  or  utility  of  covert  action  %%   a  tool  of  foreign 
policy  or  to  call  into  question  the  process  by  which  Presi- 
dential Findings  are  reviewed  and  approved, 
<S)1    [requests  for  DOD  support  are  reviewed  within 
DOD  to  determine  whether  DOD  is  willing  to  and  capable  of 
providing 'the  requested  support.   Presumably,  before  such 
requests  are  made  of  DOD,  they  are  reviewed  within  the  CIA 
and  other  appropriate  agencies,  and  determined  to  be  legal 
and  proper.   There  are,  however,  at  least  four  important 
issues  which. »ay  not  be  receiving  sufficient  attention  in_ 
the  review  process,  either  within  or  outside  DOD. 
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(S)   First,  there  is  a  question  regarding  the  underlying 
authority  by  which  DOO  provides  support  tojHHfspecial  active 
ties..  There  *s,  of  course,  no  explicit  statutory  authority 
for  theB   Jto  conduct  or  the  0G0  to  support  special  activi- 
ties,  ftatfier ,  the  National  Security  Act,  the  inherent  powers 
of  the  President,  a  Presidential  Executive  Order,  and  the 
Congressional  authorization  and  appropriation  process  are 
used  to  authorize  special  activities  in  general.   The  Economy 
Act  is  usually  cited  as    the  authority  by  which  DOO  supports 
special  activities. 
(S)   Rarely  has  authorization  or  recognition  of  the 
need  for  OOD  support  been  acknowledged  in  the  Presidential 
Finding  supporting  the  special  activi 
le  Attorney  General  requ 
activities  be  authorized  by  the  president.   Th 
and  the  Department  of  Justice  have  agreed  that  foreseeable 
and  significant  DOD  support  (to  be  determined  pursuant  to  a 
reasonableness  test),  will  be  noticed  explicitly  within  the 
Presidential  Finding  and  that  all  other  support  will  be  set 
forth  in   the  scope  paper  which  accompanies  the  Finding.      ; 
While  not  as  definitive  as  explicit  statutory  authority,     j 
such  an  arrangement  will  substantially  _sol id  if y  the  authority 
by  which  DOD  provides  support  to  themBfton  a  case  by  case 
basis. 
(TS)   The  second  major  issue  relates  to  the  breath  of 
Presidential  Findings  ^nd    the  question  of  whether  DOD  support 
which  is  requested  is  consistent  witrf  and  authorized  by  the 
Finding.   Presidential  Findings,  by  necessity  and  nature, 
are  broad  in  scope,  though  by  no  means  limitless.   Also, 
Findings  are  often  operative  for  a  number  of  years.  Support 
requests  must  be  reviewed  to  determine  whether  they  are 
within  the  legal  pacAmetera  of  the  Finding  ""if"  the  request 
seeks  to  Implement.! 
_JThu«#  whil*  I  executed  the  approval  memorandum, 
I  conditioned  "my  approval  upon  an  a  priori  notification  to 
Congress  of  the  exact  nature  of. the  operation  given  conflicting 
mission  statements  in  the  transmittal  memorarrda  between  the 
participating  agencies.  For  thia,  ^r\6   various  other  reasons, 
the  Army  raised  objection*  to  the  support  request  and  it  was 
eventually  withdrawn!""' 
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(S)   Additionally*  *nd   perhaps  most  importantly,  requests 
Cor  sensitive  000. support  must  be  reviewed  for  compliance 
with  the  statutory  requirements  relating  to  Congressional 
oversight  of  special  activities  (50  U.S.C.    S  4H;  22  U.S^C. 
$  2422)  and  the  War  Powers  Resolution  (SO  U.S.C.  SS  1541- 
1548).  The  CIA  must,  of  course,  inform  the  Congressional 
Intelligence  Oversight  Committees  of  all  special  activities. 
Similarly,  the  President  must  consult  with  and  report  to 
Congress  whenever  aemed   forces  are  introduced  into  situations 
involving  the  imminent  threat  of  hostilities.  Although  the 
CIA  is  a  civilian  agency  and  is.  thus  not  governed  by  the  War 
Powers  Resolution,  it  is  conceivable 
activity  involving  000  support  could 
requirements  of  both  50  U.S.C.  S  413 
special  activity)  and   the  War  Powers 
to  the  involvement  of  U.S.  armed  forces).  Moreover,  even  if 
the  requested  000  support  does  not  invoke  the  War  Powers 
Resolution,  it  may  invoke  the  50. U.S.C.  S  413  and  Executive 
Order  12333  requirements  to  report  to  the  Congressional 
Intelligence  Oversight  Committees. 
that  a  CIA  special 
invoke  the  reporting 
(with  regard  to  the  CIA 
Resolution  (with  regard 
IS)      Finally,  with  regard  to  Central  America,  requests 
for  support  must  also  be  reviewed  to  determine  compliance 
with  the  Boland  Amendment.   That  amendment  was  attached  to 
the  000  Appropriation  Act  and  prohibits  the  CIA  or  000  from 
expending  funds  for  the  purposes  of  overthrowing  Nicaragua 
or  provoking  a  military  exchange  between  Nicaragua  and 
Honduras. 
(S)   The  problem  vtvich  I  perceive  relating  to  these 
issues  is  the  absence  of  a  system  or  process  by  which  they 
are  addressed.   Unlike  the  more  formal  process  by  which 
Presidential  Findings  are  reviewed  within"  the  NSPG,  the 
above  issues   relating  tcfljJHrequests  for  0O0  support  are 
reviewed  for  legality,  ifac  all«.  in  an  ad   hoc  manner,  both 
within  and  outside  000.   Xt  appears  that  support  requests 
are  reviewed  by  the  Office  of  the  General  Counsel  of  the   
onlv  it    the  operational  component  believes  that  the  reques 
raises  a  legal  issue.   At  the  State  Department,  the  Office 
of  the  Legal 'Adviser  reviews  all  significant  support  requests; 
however,  requests  relating  to  Central  America  are  reviewed 
exclusively  by  the  Central  American  Management  Core  Group, 
finally,  within  000,  I  do  not  believe  that  the  Deputy  Under 
Secretary  of  Defense  (Policy)  routinely  solicits  the  review 
of  the  Office  oe *th*  General  Counsel.   Because  of  the  subtle, 
but  volitile  legal  aspects  of  the  issues  discussed  above,  I 
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belicve  it  is  important  that  all  significant  requests  for 
sensitive  000  support  be  reviewed  in  a  consistent  and     * 
systematic  manner,  to  include  an   appropriate  role  for  the 
agencies'  legal  adviser,  within  and  among  all  affected 
agencies.  Also,  such  a  system  guarantees  that  the  heads  of 
each  agency  are  aware  of  the  scope  of  the  agency's  involve- 
ment in  special  activities. 
(S)   Within  the  Army,  I  am  pleased  with  the  review 
system  which  has  been  establ  ished^Anrequests  for  Army 
support  are  submitted  by  the  JCSf  BhHPHR0^  icer  to  tne 
ArmyJ    SB  HH  £of  f  icer  '  l*    tne~r*3ue^  is^for  major  end 
items  of  military  equipment;  the  initiation  of  or  change  to 
any  specialized,  unique,  or  sensitive  service;  the  initiation 
of  or  change  to  programs  involving  substantial  expenditures 
of  money;  or  requests  which  require  an  exception  to  policy, 
I  personally  review  and  approve  the  request.  Before  it  is 
submitted  to  me,  it  is  reviewed  by  the  Deputy  Chief  of  Staff 
for  Operations  and   Plans,  any  other  Army  staff  chief  affected 
by  the  request,  the  Chief  of  Staff,  and  the  General  Counsel. 
The  Army  staff  addresses  primarily  the  question  of  whether   / 
the  Army  is  capable  of  providing  the  requested  support.   The  » 
General  Counsel  examines  the  issues  outlined  above.   In 
light  of  the  guidance  I  receive,  I  determine  whether  the 
Army  should  provide  the  requested  support. 
(S)   Based  upon  the  foregoing,  I  believe  it  is  important 
that  you  encourage  the  establishment  of  formal  intra  and 
inter-agency  procedures,  including  the.-participation  of  the 
Department  of  Justice,  relating  to  the  review  of  requests  to 
support!  lactivities.   In  addition,  because  of  the 
s  i  g  n  i  f  icance  of  t  iflf  issues  involved,  the  Army  will  continue 
to  scrutinize  for  legality  and  propriety  all  arguably  signifi- 
cant requests  for  military  support  implicating  the  issues 
noted  above. 
(U)   If  I   can 
free  to  contact  me b«  of  any  further  assistance,  please  feel 
Attachment 
0.  Harsh,    Jr 
top  mm 
waASflrc
Cxjmplec   of    Significant   CIA   Requests  for  Support 
Partial!*  fi&a&fitf/Rsfeied  orii220fc*lft 
Cnder  provision*  of  £.0. 12356 
by  2.  Rejfr4  fbticni!  Security  Council 
45P4SI1-