_—" ~ ~~..0OT y “ SECRETARY OF THE ARMY O08 WASHINGTON vor WNGLASSIFLE SUBJECT: Sensitive 00D Suppor t (anor er MMB sccivicies: MEMORANDUM FOR THE SECRETARY OF DEFENSE (S) (S) AS you are aware, the Department of Defense (DOD) provides sensitive operational an gistic support to the Support are often nes AaCtivities (covert action), as reviewed by the National Security Planning Group (NSPG) and approved by the President. With increasing frequency, due large e Presidential Findings Himes aera 6D has been requesting DOD support Msidered significant and caises some diffi- . furthecance™ which should be cult policy and legal questions. Three examples of signifi- cant and sensitive DOD support which have been cequested Wines J in connection with its activities [Riise are set forth in Tab A. . g & (S) The purpose of this memorandum is to caise several issues cegarcding the manner in which cequests 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 taker 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 as a tool of foreign policy or to call into question the process by which Presi- dential Findings are ceviewed and approved. (s) Srequests for 00D support are reviewed within DOD to determine whether DOOD is willing to and capable of providing ‘the requested support. Fresumably, before such requests ace made of DOD, they are ceviewed within the CIA and other appropriate agencies, and determined to be legal and propec. There are, however, at least four important issues which.aay not be receiving sufficient attention in the ceview process, either within or outside OOD. 198? CLASSIFIED BY OASP Tho DECLASSIFY ON OADR a ye > ES FES UNGLASOL *L wR (@ cory, | x2 544 vine awe Sea Def Cont Kr. —_<- TAL -360-WES under provisions of £.9, 12356 by B. Reger, Naticnal Security Council >grtially pectastified / Released on 2 In
WO\ASOED “= (S) Ficst, there 218 a question cegardjng the underlying authority by which 000 provides support ee eee activis tcies.. There is, of course, no explicit statutory authority for the to conduct or the 00D to supoort special activi- ties. ather, 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 DOD supports Peiespecial activities. (S) Rarely has authorization oc cecognition of the need for 00D support been acknowledged in the Presidential EERE, Sup oe Cen the special act iv ity ene Attorney General requested that DOD Seepert activities be authorized by the President. Theqgagg 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, such an arrangement will substantially solidify the authority by which DOD provides support toa che fg on a case by case basis. # 2 + (TS) The second major issue celates to the breath of Presidential Findings and the question of whether DOD support which is requested is consistent with and authorized by the Finding. Presidential Findings, by necessity and nature, ace broad in scope, though by no means limitless. Also, Findings are often operative for a number of years. Support cequests must be ceviewed to determine whether they are within the legal pacameters of the Finding which the request seeks to {imp teeht ol SE Sie CE tet Ted ee! CL a ithus, while I executed the approval memorandum, I conditioned my approval upon an a pcioci notification to Congceess of the exact nature of the operation given conflicting mission statements in the transmittal memoranda between the participating agencies. For this, and various cther reasons, the Army caised objections to the suppoct request and it was eventually withdrawn as.
~-246 (S$) Additionally, and perhaps most importantly, cequeses Cor sensitive DOO support must be cuvicwed €or compliance aes with the statutory requirements relating to Congressional oversight of special activities (50 U.S.C. § 413; 22 U.S.C. § 2422) and the War Powers Resolution ($0 U.S.C. §¢ 19414 1848). The CIA must, of course, inform the Congressional Intelligence Oversight Committees of all special activities. Similarly, the President must consult with and ceport to Congress whenever armed forces are introduced into situations involving the imminent threat of hostilities. Although the CIA is a Civilian agency and is thus not governed by the Warc Powers Resolution, it is conceivable that a CIA special activity involving DOD support could invoke the reporting cequirements of both 50 U.S.C. § 413 (with regard to the CIA special activity) and the War Powers Resolution (with regard to the involvement of U.S. armed forces). Moreover, even if the cequested 000 support does not invoke the Wat Powers Resolution, it may invoke the 50_U.S.C. § 413 and Executive Order 12333 requirements to ceport to the Congressional Intelligence Oversight Committees. (S$) Finally, with regard to Central America, cequests for support must also be ceviewed to determine compliance 4 with the Boland Amendment. ‘That amendment was attached to the DOD Appropriation Act and prohibits the CIA oc DOD from expending funds for the purposes of overthrowing Nicaragua or provoking a military exchange between Nicaragua and Honduras. (S$) The problem which I perceive celating to these issues is the absence of a system oc process by which they ace addressed. Unlike the more formal process by which Presidential Findings are reviewed within the NSPG, the above issues relating t requests for BOD support are reviewed for legality, if at all. in an ad hoc manner, both within and outside 000. [It appears that support “oe ene ace ceviewed by the Office of the General Counsel of the the ceques only if the operational component believes that caises a legal issue. At the State Department, the Office of the Legal Adviser ceviews 211 significant support requests; however, cequests relating to Central America are ceviewed exclusively by the Central American Management Coce Group. Finally, within DOO, I do not believe that the Deputy Under Secretary of Defense (Policy) routinely solicits the ceview of the Office of ‘the General Counsel. Secause of the subtle. but volitile legal aspects of the issucs discussed above, I “SESE INCLASSIFLED . ‘ shes a “se Se : we we
tor ttre U £971 -4- 6s eee Aecirice + believe it is important that all significant requests for sensitive 000 support be ceviewed in a consistent and s systematic manner, to include an appropriate cole for the | agencies‘ legal adviser, within and among all affected agencies. Also, such 4 system guarantees that the heads of each agency ace aware of the scope of the agency's involve- ment in special activities. (S) Within the Acmy, I am pleased with the ceview system which has been established, All requests for Army Suppoct are submitted by the JCS Mammut ficer to the a Acmy Qe Off icec. If the cequest ig for major end icems 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; of cequests which cequire 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 cequest, 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 ceceive, I determine whether the Acmy should provide the requested support. (S} Based upon the foregoing, I believe it is important that you encourage the establishment of formal intca and inter-agency procedures, including the-participation of the Department of Justice, relating to the review of requests to SUPpOr teem activities. In addition, because of the significance o B issues invoived, the Army will continue to scrutinize for legality and propriety all arguably signifi- cant cequests fore military support implicating the issues noted above. (Uj) If % can be of any further assistance, please feel free to contact me. nO. Marsh, Je. co-vcey  NOLASSIFID Attachment
EAS ance _ Uxamples of Significane CIA Requests for Suppoce Partially Déclastified / Released on Ld Woe, If undér provision’ of £9. 12356 hy 3. Reger, Notional Security Council