112. Memorandum From the President’s Assistant for National Security Affairs (Kissinger) to President Ford1
SUBJECT
- Presidential Determination to Permit Resumption of Foreign Military Sales to Brazil
The Department of State has recommended that you make a Determination as required by Section 3(b) of the Foreign Military Sales (FMS) Act to waive the suspension of military sales to Brazil on the basis that such a waiver is important to the national security of the United States (Tab B).
The Brazilian Navy’s March 22, 1975 seizure of two U.S.-flag shrimp boats for fishing within the 200 mile territorial waters claimed by Brazil may bring into play several legislative provisions calling for restrictive actions against Brazil in the assistance and trade fields. The point of seizure was 386 nautical miles from the conservation area delineated in the U.S.-Brazil Shrimp Agreement signed on March 14, 1975, seaward of the 12-mile contiguous fishing zone recognized by the United States, but within the 200-mile territorial sea claimed by Brazil. The U.S. regards the seizure site as high seas, not covered or in any way affected by the Shrimp Agreement, in which all nations enjoy freedom to fish. Brazil regards it as territorial sea in which non-Brazilian vessels must obtain Brazilian government consent in order to engage in fishing, and apparently interprets the Shrimp Agreement as implying that U.S. vessels will not fish outside the agreement area.
Section 3(b) of the FMS Act has been automatically triggered and will bar FMS sales credits, or guarantees to Brazil for a one-year period. Section 3(b) further states that this restriction may be waived by the [Page 312] President if he determines such waiver is “important to the national security of the United States” or if he receives “reasonable assurances from the country involved” that no further such seizures will occur.
I believe that continued U.S. suspension of military sales, credits and guarantees to Brazil would have a severe adverse affect on our relations with this largest, strongest, and most populous of the Latin American nations at a time when Brazil is emerging as a force within the hemisphere and an increasingly influential nation on the world scene.
A continuing cut-off of military sales, credits and guarantees by the U.S. would be taken by the Brazilians as an unfriendly act, disruptive to their military modernization plans. It could threaten the successful implementation of the Shrimp Agreement and could possibly harden Brazilian attitudes on Law of the Sea issues during the delicate multilateral negotiations currently underway.
Mr. Lynn points out in his memorandum of concurrence (Tab C) that the Department of State believes that since Section 502(B) of the Foreign Assistance Act (Human Rights) expresses only the sense of Congress, a finding that “extraordinary circumstances” indicate that security assistance to Brazil should not be terminated or reduced is not required. Brazil is a country which is popularly assumed to have engaged in violation of human rights, and this Determination therefore is potentially subject to Section 502(B) in the same way as the recent Determination making aid available to Spain. You are not obliged to comply literally with a sense of Congress resolution like Section 502(B); however, I believe that as in the case of the Spanish determination, it is preferable to respond to Congressional interest in human rights outside of this Determination. We intend to carry on consultations in Congress which will allow us to treat the subject broadly, rather than focus on aid to an individual country. The Department of State concurs.
Informal discussions with members of appropriate Congressional staffs on this issue indicate that no serious Congressional repercussions will result from approval of this waiver. I concur in this assessment as does Max Friedersdorf.
Section 654 (c) of the Foreign Assistance Act of 1961, as amended, requires that any determination which you may make waiving the provisions of Section 3(b) of the FMS Act, as amended, be published in the Federal Register unless you conclude that to do so “could be harmful to the National Security of the United States.” In this case I recommend that the waiver be withheld from publication. The Section 3(b) suspension has not yet become public knowledge and, should publicity occur, it is likely to result in a strong adverse public reaction in Brazil.
[Page 313]The Department of Defense concurs in this recommendation. The memorandum at Tab A will give effect to this recommendation.
Recommendation
That you sign the memorandum at Tab A.
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Summary: By seizing two U.S. shrimp boats, Brazil triggered Section 3 (b) of the Foreign Military Sales Act barring sales, credits, or guarantees for the purchase of weaponry. Kissinger informed the President that a termination of assistance to Brazil would strain bilateral ties and recommended that he waive the provisions of the FMS Act and allow the continuation of assistance to Brazil for national security reasons.
Source: Ford Library, National Security Adviser, NSC Latin American Affairs Staff Files, Box 1, Brazil, Political, Military. Confidential. Attached at Tab A is a memorandum from the President to the Secretary of State and a Justification, both undated; attached at Tab B is a memorandum from Kissinger to the President, May 6; and attached at Tab C is a memorandum from Lynn to the President, May 7. The attachments are not published. According to telegram 109691 to Brasília, May 10, Ford signed the Presidential Determination on May 9. (National Archives, RG 59, Central Foreign Policy File, D750165–0084) The U.S.-Brazilian Shrimp Agreement was signed on March 14 and ratified by the Senate in October. See Document 115.
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