Foreign Relations of the United States, 1977–1980, Volume XI, Part 1, Iran: Hostage Crisis, November 1979–September 1980

44. Memorandum From Director of Central Intelligence Turner to the President’s Assistant for National Security Affairs (Brzezinski)¹

Washington, November 20, 1979

SUBJECT

• CIA Support to Rescue of Hostages in Iran [portion marking not declassified]

1. This Agency has been asked to undertake activities in support of possible DOD Delta team efforts to rescue the hostages in Iran by assisting in contingency planning and training and by furnishing certain supplies and support services. To date the only activities of this Agency have been the provision of documentation for the members of the Delta team. Now, however, we have been requested to provide ammunition, communications equipment, travel arrangements and certain other supporting material and services to the Delta team. Because these activities involve a not insubstantial expenditure of Agency funds, they raise a serious question of legality under the Hughes/Ryan amendment.² [portion marking not declassified]

2. My General Counsel advised me that there are two bases on which the Agency could proceed:

a. A possible interpretation of the Hughes/Ryan amendment is that the amendment does not apply to covert CIA activities when conducted in support of operations by another agency of the United States Government that will not be conducted or designed in a fashion intended to conceal the role of the United States Government. This interpretation, while finding some support in the legislative history of the amendment, is not entirely consistent with analyses of Hughes/Ryan previously written by the Office of Legal Counsel of the Department of Justice. Therefore, my General Counsel is not willing to render an opinion that Hughes/Ryan is inapplicable without an opportunity to consult with the Attorney General, although he is hopeful that the Attorney General would accept the same interpretation of the statute.

b. The Hughes/Ryan amendment provides that it is inapplicable “during military operations initiated by the United States under a declaration of war approved by the Congress or an exercise of powers by the President under the War Powers Resolution.” My General Counsel is of the opinion that the current level of activities in support of contingency planning would be subsumed under this exception if it were clear that any actual operation, when and if initiated, would be pursuant to an exercise of the President’s powers under the War Powers Resolution. The General Counsel cannot, however, render an opinion to this effect without appropriate assurance that any approval to carry out the proposed contingency plan will in fact be given by the President and in accordance with the War Powers Resolution. [portion marking not declassified]

2. Based on the foregoing, I must conclude that the CIA cannot properly provide the required assistance unless the legal doubts are resolved in one of two ways:

a. Permission for the Agency’s General Counsel to consult with the Attorney General of the United States, or

b. A written assurance from the President, either directly or through you, that any initiation of actual operations would be pursuant to an exercise of powers by the President under the War Powers Resolution.

There is no guarantee under option a. that the Attorney General would agree with the preliminary legal view of the CIA General Counsel, in which case it might be necessary to proceed to option b., in any event or even to seek a Presidential finding under the Hughes/Ryan amendment.³ [portion marking not declassified]

Stansfield Turner

1. Source: Carter Library, National Security Affairs, Brzezinski Material, Country File, Box 30, Iran 11/17/79–11/20/79. Secret. Carter initialed “C” in the upper right corner.
2. The Hughes-Ryan Amendment, a section of the Foreign Assistance Act of 1974 (Public Law 93–559) amended the Foreign Assistance Act of 1961. Hughes-Ryan required the President to issue a “finding” that a specific covert operation was essential to the national security of the United States. Normally, the “finding” listed in general terms the component parts of the operation. Specifically, each covert operation had to be reported in a timely fashion to appropriate congressional committees. Hughes-Ryan was amended in 1980 in the Intelligence Oversight Act. This act required all U.S. Government agencies to report covert actions to the House Permanent Select Committee on Intelligence and to the Senate Select Committee on Intelligence.
3. Brzezinski forwarded this memorandum to Carter under a November 20 covering memorandum, which asked whether to proceed under the War Powers Act or to consult with Civiletti. Carter wrote at the bottom of Brzezinski’s memorandum: “Check with Fritz & Cy first, then discuss with AG directly re preference between options a. and b. Then give Stan necessary assurance. J.C.” (Carter Library, National Security Affairs, Brzezinski Material, Country File, Box 30, Iran 11/17/79–11/20/79) According to Carter’s personal notes, Brzezinski called him on November 21 on the secure phone. Carter “gave him permission to state to Stan Turner that if we had to do a rescue operation that I would do it under the War Powers Act.” (Carter Library, Plains File, Box 1)