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78. Briefing Memorandum From the Director of the Bureau of Politico-Military Affairs (Vest) and the Assistant Secretary for Legislative Affairs (McCloskey) to Secretary of State Kissinger 1

Department of State Position on Fiscal Year 1976 Security Assistance Bill

Introduction:

The House/Senate Conference Committee has completed its resolution of the differences between the House and Senate versions of the FY 1976 security assistance bill (S. 2662).2 The House and Senate will each vote on the Conference Report within the next few days. If the Conference Report is approved by both bodies, the bill will be enrolled and transmitted to the President for his approval or veto. This memorandum describes the salient features of the legislation, analyzes its impact, identifies the most likely consequences of a veto, and outlines a Department of State position.

Summary of the Bill.

The legislation recommended by the Conference Committee is based primarily upon Senator Humphrey’s proposed International Security Assistance and Arms Export Control Act. It contains authorizations of appropriations for fiscal year 1976 security assistance programs and legislative authority necessary to carry out certain aspects of those programs. In addition, it expresses significant statements of policy and effects major changes in the organization, management and procedures for security assistance, with particular emphasis upon increased involvement by Congress in arms transfer decisions. The principal features of the bill are summarized below:

1. Authorizations.

The authorization levels recommended by the Conference Committee reflect a compromise between the lower Senate and the higher House figures, and a reduction of almost $300 million in the amounts requested by the Administration. The specific recommendations [in millions of dollars] are:

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Program Conference Recommendation Administration Request
Grant Military Assistance Program $ 196.7 $ 357.5
MAP Administrative Costs 32 37
Military Education and Training 27 30
FMS Program Ceiling 2,374.7 2,374.7
Contingency Fund 5 10
Narcotics Control 40 42.5
Security Supporting Assistance 1,766.2 1,873.3
Middle East Special Requirements Fund 50 50
Supplemental Aid to Cypriot Refugees 10
International Atomic Energy Agency 1

The amounts recommended in the Conference Report equal or exceed the levels contained for the above identified programs in the pending Foreign Assistance Appropriation Bill (H.R. 12203).

2. Military Assistance Program.

The bill’s provisions regarding the grant military assistance program reflect a policy that the program should be phased out, and terminated after FY 1977 except as specifically authorized for particular countries on an exceptional basis. The principal amendments to the military assistance chapter of the Foreign Assistance Act are:

a. Phaseout.

Military assistance advisory groups and Defense Attachés performing security assistance functions will no longer be able to operate in foreign countries after September 30, 1977, except as specifically authorized by law. Instead, not to exceed three members of the Armed Forces may be assigned to any diplomatic mission to perform security assistance functions. Not more than 34 MAAGs are authorized for FY 1977. The grant military assistance program is also terminated after September 30, 1977, except as specifically authorized for particular countries, although delivery of items in the pipeline and other winding up activities may continue. The termination of MAP (except as specifi[Page 326]cally authorized) will not affect military training, which will continue under a new chapter in the Foreign Assistance Act as a separate program.

b. Stockpiles.

The prohibition in existing law on stockpiling for Allied forces is repealed, subject to an annual limitation on the value of the items that can be transported to overseas stockpiles.

c. Draw Down Authority.

The President’s emergency authority to draw upon Department of Defense stocks subject to subsequent reimbursement is retained, but reduced from $150 million to $67.5 million and made subject to more stringent criteria.

3. Foreign Military Sales Program.

The title of the Foreign Military Sales Act is changed to “Arms Export Control Act” and numerous policy and procedural changes are made in the basic legislation. Chief among these are:

a. Annual Ceiling.

An annual ceiling of $9 billion is established on foreign military sales contracts and commercial arms deliveries. The ceiling will become effective in FY 1977, contains an inflation factor so that it will be computed in constant 1975 dollars, and may be waived by the President if the national security so requires.

b. Third Country Transfers.

As a condition of eligibility, foreign governments will have to promise not to transfer without prior U.S. consent any training or other defense services furnished to them by the U.S. Government. Before consenting to any proposed third country transfer of materiel or services, the President must inform Congress and wait 30 calendar days, during which period Congress can disapprove the transfer by concurrent resolution. This review procedure may be waived by the President for national security reasons.

c. Arms Transfer Procedures.

The bill includes a definition of major defense equipment, identified as any significant combat equipment on the United States Munitions List having an R&D cost of more than $50 million or estimated production costs of more than $200 million. Sales of such major defense equipment valued at $25 million or more cannot be made through commercial channels except to NATO countries. Sales of major defense equipment valued at $7 million or more through either FMS or com[Page 327]mercial channels must be submitted to Congress for 30 days review and possible disapproval by concurrent resolution in connection with the foreign military sales contract or commercial export license.

4. Eligibility.

The law on loss of eligibility for misuse or unauthorized transfer of MAP or FMS items is revised. Under the bill, the President must report to Congress whenever a substantial violation of the recipient country’s agreement may have occurred, but need not immediately terminate military assistance or foreign military sales. Termination is required only if the President determines or Congress finds by concurrent resolution that a substantial violation has occurred. The President may waive ineligibility under this revised procedure with respect to items in the MAP pipeline and also with respect to FMS cash sales. However, the foreign military sales waiver is available only if ineligibility results from a Presidential determination rather than from a concurrent resolution by Congress. These changes do not affect Turkey, for which separate provision is made (Item 8 below).

5. Human Rights. 3

The bill declares that security assistance may not be provided to a country that engages in a consistent pattern of gross violations of human rights. It requires the inclusion of a human rights report for each proposed security assistance recipient in the annual Congressional presentation materials. In addition, the Department is required to submit a more detailed report on any particular country when requested by Congress. If the report reveals human rights violations, it must also set forth an explanation of the exceptional circumstances requiring the continuation of security assistance and describe efforts by the U.S. Government to discourage the practices and disassociate U.S. assistance from them. Congress may within 90 days of continuous session after receipt of such a report adopt a concurrent resolution terminating or restricting further security assistance to the country which is the subject of that report. Finally, the bill establishes as a statutory position within the Department of State a Coordinator for Human Rights to be appointed by the President with Senate confirmation. The Coordinator is to be responsible to the Secretary in carrying out reporting responsibilities, making recommendations and performing other functions which serve to promote increased observance of human rights.

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6. Discrimination.

The bill enunciates U.S. policy not to furnish assistance or make sales to countries which discriminate against U.S. citizens on the basis of their race, sex, religion or national origin; prohibits the U.S. Government and its contractors from acquiescing in such discrimination in their assignment and employment practices; requires reports to Con-gress in the event of such discrimination; and requires termination of any assistance transaction, sale, or arms export license in the event of persistent discrimination by the recipient country. However, the termination requirement may be waived by the President if it would have a significant adverse impact on the security interests of the United States.

7. Angola.

The bill prohibits assistance to any person for military or paramilitary operations in Angola and requires periodic reports to Congress on efforts to terminate the hostilities which were extant at the time the provision was drafted.

8. Turkey.

The bill provides partial relief from the existing prohibition against foreign military sales for Turkey by allowing up to $125 million in sales to Turkey during FY 1976 and the transition quarter, any part of which may be financed by FMS credits or guaranties. This authority is conditioned upon Turkish observance of the ceasefire on Cyprus, refraining from transferring to Cyprus additional U.S. supplied arms and refraining from increasing its military forces or civilian population on Cyprus. Each FMS sale to Turkey must be the subject of a Presidential determination that the items to be sold are necessary for Turkey’s NATO responsibilities and the proposed sale must lie before Congress for 30 calendar days, although no provision is made for legislative veto.

9. Chile.

The bill prohibits grant or credit security assistance to Chile, but permits FMS cash sales and commercial exports of arms to that country.

10. Korea.

The bill requires a report to Congress within 90 days and at least once a year thereafter, reviewing Korean progress in its modernization program and the prospects for a phased reduction of U.S. military forces in Korea.

11. Vietnam.

The bill temporarily limits the President’s discretionary authority under existing law to control or prohibit trade and financial transfers [Page 329]with North and South Vietnam by persons subject to U.S. jurisdiction. The only restrictions that can be applied during the 180-day period following enactment are those which are also applicable to the Peoples’ Republic of China. However, this provision will lapse at the end of 180 days unless during that period the Vietnamese have accounted for a substantial number of POWs and MIAs and returned a substantial number of bodies.

12. Fees, Contributions, Gifts and Bribes.

The bill requires the Secretary of State to prescribe regulations requiring reports and record-keeping on political contributions, gifts and fees paid or offered in order to secure a foreign military sale or commercial arms sale. The regulations may specify the amounts and kinds of payments to be reported and the form and timing of the reports. The information thus acquired is to be made available to U.S. law enforcement agencies and to committees of Congress. Provision is made for regular reports to Congress on such payments. The bill allows the reports to Congress to identify any information considered confidential by the person who submitted it, but does not preclude Congress from disregarding that confidentiality.

Policy and Operational Effects of the Bill.

The foregoing summary shows that the principal effect of the legislation will be to provide a more active participation by Congress in decisions on the formulation and implementation of security assistance programs. This will considerably complicate the carrying out of these programs. On the other hand, it will more fully acquaint Congress with the complexity of the decisions that must be made.

The expanded requirement for submitting proposals for arms transfers to Congress with the possibility of a legislative veto by concurrent resolution is one of the more serious objections to the bill. This procedure will allow Congress to take action by simple majority vote which heretofore would have required legislation involving either Presidential approval or a two-thirds majority in both Houses. Moreover, the expanded scope of the transactions made subject to this procedure, i.e., all third country transfers, plus commercial and FMS transactions of $7 million or more, will cause the number of occasions for potential confrontation with the Legislative Branch to be increased from approximately seventy cases a year to as many as 200. In practice, only three of the cases submitted to Congress under the existing review procedures (FMS cases over $25 million) have proved to be controversial and only one, the Hawk sale to Jordan, has posed serious threat of disapproval. Accordingly, the distortion of the constitutional process through avoidance of Presidential veto and direct involvement by Congress in the performance of Executive functions, rather than opera[Page 330]tional considerations, seems the more serious aspect of this feature of the bill. The concurrent resolution of disapproval procedure is also applicable, as noted above, to questions of eligibility and human rights. The likelihood that the Congressional powers set out in these provisions will be exercised is difficult to assess. The President could preserve his constitutional position through a carefully and strongly worded signing statement, but would probably not be effective in discouraging the enactment of further such provisions.

The $9 billion annual ceiling on foreign military sales and commercial arms sales establishes a very troublesome precedent. Present estimates suggest that, given the inflation factor included in the proposed legislation, the fiscal year 1977 program can be accomplished within this ceiling. It is also possible that it may, as intended by the sponsors, be useful in facilitating efforts at conventional arms limitations. On the other hand, once the precedent of an annual ceiling is established, the opportunity will exist in subsequent years for a reduction in the amount of the ceiling, or the addition of subceilings for specific regions or countries. In any event, the ceiling may be very difficult to administer and may require difficult choices to be made with regard to giving preference to particular purchasers or commercial vendors.

The bill’s provisions on human rights and discrimination also seem likely to be a cause of further friction between the Legislative and Executive Branches. It is conceivable that members of Congress will argue that particular transactions involving countries with known human rights deficiencies are unlawful. While the discrimination section has been tempered with a Presidential waiver authority, allegations by individuals that they have been subjected to discrimination could give rise to charges that the continuance of programs of great policy significance would be contrary to law.

Less troublesome are the termination of grant military assistance and military assistance advisory groups, except as specifically authorized. The formulation finally adopted, while creating a presumption against continued grant programs, preserves the basic legislative authority for those assistance programs and MAAGs for which we can provide extraordinary justification. This proposed legislation would have no legal effect upon separate authorizations being sought to implement the Spanish Treaty of Friendship and Cooperation4 and Defense Cooperation Agreements with Turkey or other countries.

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On balance, the legislation will be difficult to administer, and alters the traditional roles of the Legislative and Executive Branches in the conduct of foreign affairs. At the same time, adequate funding is provided for the most essential of the Administration’s programs, particularly in the Middle East, and the operational difficulties do not appear to be unmanageable.

Likely Consequences of a Veto.

If the President were to veto the proposed legislation, he would protect the Executive Branch against incursions by the Congress into traditional areas of Presidential discretion. However, the authority that would be retained would probably be applicable to a diminished program. In addition, we could expect the most undesirable features of the bill to be repeated, perhaps in an even more objectionable form, in the fiscal year 1977 legislation. Thus, even assuming that a veto would be sustained, the problem would not be removed, but only deferred.

If the legislation is approved, a year’s experience may demonstrate the inutility and undesirability of a number of its provisions so that in the fiscal year 1978 legislation, some of the most objectionable features could be eliminated. However, the legislative veto procedure will probably not be capable of dimunition through further Executive Branch legislative proposals. This pervasive issue, which is plaguing domestic as well as international programs, will probably have to be resolved in the courts.

Conclusion:

In view of the foregoing, we intend to take the following actions,

1. Tell interested members of Congress that we are not encouraging them to vote against the Conference Report.

2. Seek in the debate on the Conference Report to have Congressional leaders sympathetic to our reservations about the bill describe the bill’s shortcomings in order to create a legislative history that may facilitate corrective amendments at a later date.

3. If the Conference Report is approved by the House and Senate, recommend to the President that he approve the bill with a statement expressing strong reservations regarding the highly questionable constitutionality of the legislative veto provisions and the undesirability of the other objectionable features as described above.

Preliminary consultations with other concerned agencies indicate that the above position is generally supported within the Executive Branch. We are meeting with Defense, AID, Treasury, OMB and NSC early this week to ensure a coordinated Administration position prior to the vote on the Conference Report.

  1. Source: National Archives, RG 59, Central Foreign Policy File, P760062–1958. Limited Official Use. Sent through Maw. Drafted by Assistant Legal Adviser for Politico-Military Affairs James H. Michel on April 9. H, PM, S/P, and T concurred.
  2. See footnote 4, Document 72.
  3. On April 13, Maw detailed the bill’s human rights provisions in a memorandum to Kissinger. (National Archives, RG 59, Central Foreign Policy File, P760062–1700)
  4. Ford submitted the Treaty, which dealt with U.S.-Spanish defense relations, to the Senate for ratification on February 18. Documentation on negotiations leading to its signing is scheduled for publication in Foreign Relations, 1969–1976, Vol. E–15, Part 2, Western Europe, 1973–1976.