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336. Memorandum From Secretary of State Vance to President Carter 1

SUBJECT

  • Statutory Constraints on Foreign Assistance Which May Impede U.S. Efforts to Counter Soviet-Cuban Adventurism

In response to your question on this subject, let me first briefly review our accomplishments and setbacks on the “legislative constraints” front since my memorandum to you on this issue last year (attached).2

Working closely with Henry Owen and AID, we have succeeded in getting Congress to eliminate outright or ease a number of constraints on our use of development and security assistance in areas where Soviet and Cuban activity is growing. These include:

—repeal of the prohibition on furnishing long-term development assistance and short-term economic support (security supporting assistance) to any country in a single fiscal year (Sec. 115 of the Foreign Assistance Act of 1961, as amended—the FAA);

—authorization for the President to draw on Defense Department stocks for emergency military assistance needs involving vital U.S. security interests, without the former requirement for appropriation act language each year before this authority is actually available to the President (Sec. 506 of the FAA);

—repeal of the $40 million ceiling on aggregate military assistance and foreign military sale (FMS) financing that can be provided to African countries in a single fiscal year (Sec. 33 of the Arms Export Control Act);

—removal of limits on the amount of military assistance and FMS sales and financing for Turkey in a single fiscal year (although the President must still first certify that defense articles provided are necessary for Turkey to meet its NATO defense responsibilities) (Sec. 620(x) and 620(C) of the FAA);

—expansion of the President’s authority to transfer funds from the Economic Support Fund account under the FAA to the Peacekeeping account, and to use Peacekeeping funds to pay for Defense Department expenses incurred in supporting UN activities.

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For FY 81, we hope to have established a $50 million Contingency Fund. This is the single most significant new initiative in which we will be engaged with the Congress to provide you with broader flexibility to respond to rapidly developing threats to peace and security around the world.

There are still a large number of statutory provisions which limit executive flexibility. Some of these have been enacted in the past year. They include:

—prohibitions in the FY 80 economic and security assistance legislation on various forms of assistance, respectively, to Panama, Jor-dan, Syria, and Afghanistan,3 in each case waivable under certain conditions;

—a tightening of constraints on providing assistance to countries in default on U.S. Government loans; and

—requirements for Presidential certifications before security assistance may be proposed for Greece and Turkey, or before major FMS sales may be made to those countries.

The FY 80 foreign assistance appropriations legislation, now in conference, may contain further constraints, the most serious being a prohibition on “indirect” assistance to certain designated countries. We are continuing our efforts to defeat these.4

Our experience in working with Congress to reduce or eliminate legislative constraints indicates that:

—we have been most effective to date in arguing, not against constraints per se, but that particular constraints are undesirable on their own practical or policy merits;

—Congressional concern over real and perceived past abuses of Executive authority in foreign assistance and other areas is likely to continue to be reflected in a strong Congressional desire for close scrutiny or limitation of contemplated foreign policy actions by the Executive;

—many in Congress believe the need for “Executive flexibility” is adequately addressed by existing waiver authority in many individual prohibitions and by general Presidential authority to waive most prohibitions against programs under the FAA.

Tom Ehrlich is leading an interagency study that will have as one of its primary subjects of focus how to simplify U.S. development assistance programs.5 I believe this should include a further review of [Page 1067]how we should approach Congress in an effort to minimize statutory constraints in this area. Everyone involved, including Henry Owen, agrees that the issues must be thoroughly reviewed within the Executive Branch before we broach any proposals for wide-ranging reform with the Congress. As this study proceeds, we will continue our efforts to eliminate specific existing constraints and resist the imposition of new ones.

For the immediate future, any constraints which stand in the way of initiatives we may contemplate taking to counter specific threatening acts of the Soviets and/or Cubans should, I believe, be addressed on a case by case basis. We should consider making maximum use of the broad waiver authority you already have with regard to many prohibitions and be prepared to take our case to the Congress on specific non-waivable prohibitions where we believe a good possibility exists for sympathetic Congressional action.

Tom and I will provide you with periodic reports on the progress of the IDCA-led study and ensure that it proceeds on a priority basis.

  1. Source: Carter Library, National Security Affairs, Brzezinski Material, Subject File, Box 25, Foreign Assistance: 6–11/79. Secret. Carter initialed “C” at the top of the page. The memorandum was sent to Carter under cover of a December 3 memorandum from Owen, who indicated his agreement “with Cy’s case-by-case approach to the removal of constraints and will work with him, Tom Ehrlich, and others on a strategy for 1980.” Owen also wrote: “This is an uphill battle but our achievements thus far show that some headway can be made.” Carter initialed Owen’s memorandum. (Ibid.)
  2. Printed as Tab A to Document 305.
  3. Carter underlined the words “Panama,” “Jordan,” “Syria,” and “Afghanistan.”
  4. Carter highlighted this paragraph.
  5. On October 18, Vance asked Ehrlich “to take the lead” on reviews of three issues: “whether our bilateral or our multilateral assistance is most effective in the long run;” “what can be done to eliminate restrictive legislative provisions and to simplify administrative practices with a view to improving the quality and flexibility of our aid;” and whether the Carter administration had “been as effective as it should be in building Congressional support for our foreign assistance programs, and particularly for our contributions to the multilateral development banks (MDBs) and UN organizations.” Vance’s October 18 letter to Ehrlich and Ehrlich’s October 29 reply are in the National Archives, RG 59, Office of the Secretariat Staff, Official Working Papers of S/P Director Anthony Lake, 1977–January 1981, Lot 82D298, Box 5, S/P-Lake Papers—10/16–31/79.