B-201260, SEP 11, 1984

B-201260: Sep 11, 1984

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THAT THE PROHIBITION WAS ACTUALLY VIOLATED. IT IS OUR OPINION THAT THE ANTIDEFICIENCY ACT AND ITS CRIMINAL SANCTIONS WOULD CERTAINLY BE APPLICABLE TO EXPENDITURES MADE IN VIOLATION OF THE BOLAND AMENDMENT. HAVE. IT IS THE VIEW OF THIS OFFICE THAT AN EXPENDITURE MADE IN DIRECT CONTRAVENTION OF A SPECIFIC RESTRICTION IN AN APPROPRIATION ACT VIOLATES THE ANTIDEFICIENCY ACT'S PROHIBITION AGAINST THE OBLIGATION OF FUNDS IN EXCESS OF THE AMOUNT AVAILABLE UNDER LAW. ADMINISTRATIVE PENALTIES MAY BE (AND HAVE BEEN) IMPOSED FOR SIMPLE NEGLIGENCE. ARE INTENDED TO BE RESERVED FOR PARTICULARLY FLAGRANT VIOLATIONS. WE ARE UNAWARE OF ANY FEDERAL OFFICER OR EMPLOYEE WHO HAS EVER BEEN PROSECUTED OR CONVICTED UNDER THIS PROVISION.

B-201260, SEP 11, 1984

APPROPRIATIONS - DEFICIENCY ACT - DEFICIENCIES - VIOLATIONS - NOT ESTABLISHED - MILITARY ASSISTANCE TO NICARAGUAN "CONTRAS" DIGEST: THE SO-CALLED BOLAND AMENDMENT TO THE 1983 DEFENSE APPROPRIATIONS ACT PROHIBITED FUNDS FROM THAT ACT TO BE USED TO FURNISH MILITARY SUPPLIES OR SERVICES TO QUASI-MILITARY GROUPS FOR THE PURPOSE OF OVER THROWING THE GOVERNMENT OF NICARAGUA. ALTHOUGH GAO AGREES THAT A VIOLATION OF THIS PROHIBITION WOULD BE CONTRARY TO THE ANTIDEFICIENCY ACT, 31 U.S.C. 1341(A), WE DO NOT FIND, BASED ON THE LANGUAGE AND LEGISLATIVE HISTORY OF THE AMENDMENT, THAT THE PROHIBITION WAS ACTUALLY VIOLATED.

THE HONORABLE PETER W. RODINO, JR. CHAIRMAN, COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES

DEAR MR. CHAIRMAN:

BY LETTER DATED APRIL 19, 1984, YOU REQUESTED THAT THIS OFFICE PROVIDE YOU WITH A LEGAL OPINION REGARDING THE APPLICABILITY OF THE ANTIDEFICIENCY ACT, 31 U.S.C. SEC. 1341, AND THE CRIMINAL PENALTIES PROVIDED THEREUNDER, 31 U.S.C. SEC. 1350, TO EXECUTIVE BRANCH EXPENDITURES IN VIOLATION OF A PROHIBITION CONTAINED IN THE SO-CALLED BOLAND AMENDMENT TO THE 1983 DEFENSE APPROPRIATIONS ACT. THIS LETTER RESPONDS TO YOUR REQUEST. EXPLAINED IN FURTHER DETAIL BELOW, IT IS OUR OPINION THAT THE ANTIDEFICIENCY ACT AND ITS CRIMINAL SANCTIONS WOULD CERTAINLY BE APPLICABLE TO EXPENDITURES MADE IN VIOLATION OF THE BOLAND AMENDMENT. HAVE, HOWEVER, NO BASIS FOR CONCLUDING THAT THE PROHIBITION HAS BEEN VIOLATED.

AS YOUR SUBMISSION CORRECTLY NOTES, IT IS THE VIEW OF THIS OFFICE THAT AN EXPENDITURE MADE IN DIRECT CONTRAVENTION OF A SPECIFIC RESTRICTION IN AN APPROPRIATION ACT VIOLATES THE ANTIDEFICIENCY ACT'S PROHIBITION AGAINST THE OBLIGATION OF FUNDS IN EXCESS OF THE AMOUNT AVAILABLE UNDER LAW. COMP.GEN. 440 (1981); 31 U.S.C. SEC. 1341(A)(1) (1982). WHERE A VIOLATION HAS OCCURRED, THE RESPONSIBLE OFFICIAL MAY BE SUBJECT TO ADMINISTRATIVE OR CRIMINAL PENALTIES. 31 U.S.C. SECS. 1349, 1350. ADMINISTRATIVE PENALTIES MAY BE (AND HAVE BEEN) IMPOSED FOR SIMPLE NEGLIGENCE. SEE, E.G., DUGGAR V. THOMAS, 550 F.SUPP. 498 (D.D.C. 1982) (DEMOTION). CRIMINAL PENALTIES, ON THE OTHER HAND, ARE INTENDED TO BE RESERVED FOR PARTICULARLY FLAGRANT VIOLATIONS; THEY MAY ONLY BE IMPOSED FOR KNOWING AND WILLFUL VIOLATIONS OF THE ACT. 31 U.S.C. SEC. 1350. WE ARE UNAWARE OF ANY FEDERAL OFFICER OR EMPLOYEE WHO HAS EVER BEEN PROSECUTED OR CONVICTED UNDER THIS PROVISION.

BECAUSE THE BOLAND AMENDMENT CONSTITUTES A SPECIFIC APPROPRIATIONS ACT RESTRICTION, AN EXPENDITURE MADE IN CONTRAVENTION OF ITS PROHIBITIVE LANGUAGE WOULD VIOLATE THE ANTIDEFICIENCY ACT AND WOULD SUBJECT THE AUTHORIZING OFFICIAL TO ADMINISTRATIVE AND CRIMINAL PENALTIES. THE APPLICABILITY OF THE ANTIDEFICIENCY ACT IN THIS CONTEXT, HOWEVER, FIRST REQUIRES A LEGAL DETERMINATION THAT THE PROHIBITION HAS IN FACT BEEN VIOLATED. FOR THE FOLLOWING REASONS, WE ARE UNABLE TO MAKE SUCH A DETERMINATION.

THE BOLAND AMENDMENT, SECTION 793 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1983, PROVIDED AS FOLLOWS:

"NONE OF THE FUNDS PROVIDED IN THIS ACT MAY BE USED BY THE CENTRAL INTELLIGENCE AGENCY OR THE DEPARTMENT OF DEFENSE TO FURNISH MILITARY EQUIPMENT, MILITARY TRAINING OR ADVICE, OR OTHER SUPPORT FOR MILITARY ACTIVITIES, TO ANY GROUP OR INDIVIDUAL, NOT PART OF A COUNTRY'S ARMED FORCES, FOR THE PURPOSE OF OVERTHROWING THE GOVERNMENT OF NICARAGUA OR PROVOKING A MILITARY EXCHANGE BETWEEN NICARAGUA AND HONDURAS." DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1983, SEC. 793, 96 STAT. 1865 AS ENACTED IN FURTHER CONTINUING APPROPRIATIONS ACT, 1983, PUB.L. NO. 97-377, SEC. 101(C), 96 STAT. 1833 (1982).

THE PROVISION CONTINUED IN EFFECT, UNDER AUTHORITY OF THE FISCAL YEAR 1984 CONTINUING APPROPRIATIONS RESOLUTIONS, UNTIL DECEMBER 8, 1983, THE DATE OF ENACTMENT OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1984, PUB.L. NO. 98-212, 97 STAT. 1421 (1983). /1/

ALTHOUGH THE PROHIBITION CONTAINED IN SECTION 793 APPEARS TO BE DRAWN IN VERY BROAD TERMS, A CLOSER EXAMINATION OF ITS LANGUAGE, PARTICULARLY IN LIGHT OF THE CIRCUMSTANCES OF ITS ENACTMENT, INDICATES THAT IT WAS DRAFTED TO HAVE A LIMITED EFFECT. SECTION 793 ORIGINATED AS AN AMENDMENT TO THE 1983 DEFENSE APPROPRIATIONS BILL, OFFERED BY REPRESENTATIVE HARKIN. THE LANGUAGE ENACTED, HOWEVER, CONSTITUTED A SUBSTITUTE FOR THE HARKIN AMENDMENT, OFFERED BY REPRESENTATIVE BOLAND. A COMPARISON OF THE TWO PROVISIONS AND AN EXAMINATION OF REPRESENTATIVE BOLAND'S REASONS FOR OFFERING THE SUBSTITUTE EVENTUALLY ENACTED ILLUSTRATE THE LIMITATIONS OF SECTION 793.

REPRESENTATIVE HARKIN'S PROPOSED AMENDMENT TO THE DEFENSE APPROPRIATIONS BILL WOULD HAVE PROHIBITED THE DEFENSE DEPARTMENT AND THE CIA FROM USING FUNDS APPROPRIATED IN THE BILL:

"*** TO FURNISH MILITARY EQUIPMENT, MILITARY TRAINING OR ADVICE, OR OTHER SUPPORT FOR MILITARY ACTIVITIES, TO ANY GROUP OR INDIVIDUAL, NOT PART OF A COUNTRY'S ARMED FORCES, FOR THE PURPOSE OF ASSISTING THAT GROUP OR INDIVIDUAL IN CARRYING OUT MILITARY ACTIVITIES IN OR AGAINST NICARAGUA." 128 CONG. REC. H9148 (DAILY ED. DECEMBER 8, 1982).

THIS LANGUAGE WOULD HAVE EFFECTIVELY HALTED ALL DOD AND CIA MILITARY ASSISTANCE (AT LEAST TO THE EXTENT FUNDED FROM THE DOD APPROPRIATION BILL) TO ANTI-SANDINISTA FORCES (COMMONLY REFERRED TO AS "CONTRAS"), AS SUCH FORCES ARE SPECIFICALLY ORGANIZED TO CARRY OUT MILITARY ACTIVITIES IN OR AGAINST NICARAGUA. IN HIS EXPLANATION OF THE PROVISION, REPRESENTATIVE HARKIN ACKNOWLEDGES THAT THE CONTRAS MAY HAVE BEEN ARMED BY THE CIA SIMPLY "TO INTERDICT THE ALLEGED FLOW OF ARMS FROM NICARAGUA TO EL SALVADOR," BUT STATES THAT "EVEN IF YOU DO THAT, IF YOU GIVE PEOPLE WITH A POLITICAL GRUDGE A GUN AND THE MEANS TO FIRE IT, IF THEY DO THEY ARE IMPOSSIBLE TO DISOWN ONCE THEY START." 128 CONG. REC. H9148 (DAILY ED. DECEMBER 8, 1982). ACCORDING TO REPRESENTATIVE HARKIN, "WHAT HAS HAPPENED IS THAT PERHAPS ON ONE PRETEXT OF INTERDICTING THE SUPPOSED ARMS SHIPMENTS FROM NICARAGUA TO EL SALVADOR, WE HAVE ARMED THE OLD SOMOCISTA GUARDS. *** WHAT THEY ARE DOING IS NOTHING MORE OR NOTHING LESS THAN PROVOKING A CONFLICT WITH NICARAGUA." ID. AT H9148-49. THE HARKIN AMENDMENT WAS THUS INTENDED TO CUT OFF ALL U.S. MILITARY SUPPORT OF THE CONTRA FORCES.

THE HARKIN AMENDMENT WAS STRONGLY OPPOSED BY REPRESENTATIVE BOLAND, CHAIRMAN OF THE PERMANENT SELECT COMMITTEE ON INTELLIGENCE. SEE 128 CONG. REC. H9156-57 (DAILY ED. DECEMBER 8, 1982). REPRESENTATIVE BOLAND ARGUED THAT ADEQUATE CONTROLS HAD ALREADY BEEN ESTABLISHED IN THE FISCAL YEAR 1983 INTELLIGENCE AUTHORIZATION ACT, PUB.L. NO. 97-269, 96 STAT. 1142 (1982), THE CLASSIFIED ANNEX OF WHICH EXPRESSED THE SENSE OF THE CONFEREES THAT NO FUNDS AUTHORIZED BY THAT ACT SHOULD BE USED "TO OVERTHROW THE GOVERNMENT OF NICARAGUA OR TO PROVOKE A MILITARY EXCHANGE BETWEEN NICARAGUA AND HONDURAS." ID. AT H9156. ACCORDING TO MR. BOLAND, ENACTMENT OF THE HARKIN AMENDMENT WOULD SET "BAD PRECEDENT." HE INDICATED THAT SUCH AN APPROPRIATION RESTRICTION WOULD INTERFERE IN THE ROLE PLAYED BY HIS OWN COMMITTEE, THE EFFECTIVENESS OF WHICH "DEPENDS ON ITS ABILITY TO KEEP THE NATION'S SECRETS, AND EXERCISE SENSIBLE AND PRUDENT OVERSIGHT." ID. H9157.

REPRESENTATIVE BOLAND URGED THAT THE HARKIN AMENDMENT BE WITHDRAWN, AND, FAILING THIS, OFFERED AS A SUBSTITUTE THE LANGUAGE EVENTUALLY ENACTED AS SECTION 793. ID. AT H9158. MR. HARKIN MADE A LAST MINUTE EFFORT TO AMEND THE BOLAND SUBSTITUTE TO CLARIFY THAT IT PROHIBITED AID TO GROUPS KNOWN TO BE INTENT UPON OVERTHROWING THE GOVERNMENT OF NICARAGUA. THIS EFFORT FAILED, AND THE BOLAND SUBSTITUTE WAS APPROVED OVERWHELMINGLY (411 TO 0). ID. AT H9159.

AS THESE CIRCUMSTANCES WOULD INDICATE, THE LANGUAGE OF THE BOLAND AMENDMENT WAS PUT FORTH TO FORECLOSE ENACTMENT OF A PROVISION THAT WOULD CLEARLY HAVE PROHIBITED ANY FORM OF MILITARY ASSISTANCE TO THE CONTRA FORCES. THE LEGISLATIVE HISTORY OF THE BOLAND AMENDMENT MAKES IT CLEAR THAT IT WAS, IN FACT, A COMPROMISE INTENDED TO EXPRESS CONGRESSIONAL OPPOSITION WHILE PERMITTING THE ADMINISTRATION TO CONTINUE ITS ACTIVITIES UNDER THE THEORY THAT IT HAD NO INTENTION OF OVERTHROWING THE NICARAGUAN GOVERNMENT, BUT ONLY TO "ENCOURAGE" NICARAGUA TO HALT ASSISTANCE TO SALVADORAN INSURGENTS. FOR THIS REASON, WE AGREE WITH THE OPINION OF THE DOD'S FORMER GENERAL COUNSEL THAT--

"*** CONGRESS MAY INDEED BE CONCERNED ABOUT THE POSSIBLE CONSEQUENCES OF PARAMILITARY EFFORTS TO OVERTHROW THE SANDINISTAS AND THE ACCOMPANYING RISKS OF A CONFLICT BETWEEN HONDURAS AND NICARAGUA-- AND FROM BOTH A POLICY AND A POLITICAL STANDPOINT THESE CONSIDERATIONS MAY WARRANT CAREFUL ATTENTION BY ADMINISTRATION DECISIONMAKERS-- BUT AS A MATTER OF LAW IT IS INCORRECT TO READ THE TERMS OF THE REJECTED HARKIN AMENDMENT INTO THE BOLAND AMENDMENT. THE RECORD SHOWS THAT THE HOUSE CONSIDERED AND REJECTED LANGUAGE WHICH WOULD HAVE PROHIBITED ASSISTANCE TO PARAMILITARY GROUPS INTENDING TO OVERTHROW THE NICARAGUAN GOVERNMENT. ***" LETTER FROM DOD GENERAL COUNSEL TAFT TO GAO ASSISTANT GENERAL COUNSEL WRAY (FEBRUARY 2, 1984), REPRINTED IN 130 CONG. REC. H886 (DAILY ED. FEBRUARY 23, 1984) (EMPHASIS IN ORIGINAL).

BASED ON THE ABOVE, WE WOULD ALSO AGREE WITH THE DOD'S FORMER GENERAL COUNSEL THAT THE RELEVANT CONSIDERATION UNDER THE BOLAND AMENDMENT "IS THE IMMEDIATE MOTIVE OR PURPOSE FOR WHICH THE ASSISTANCE IS PROVIDED, NOT THE LONG-TERM INTENT OF THOSE WHO ARE ASSISTED." ID. THE ADMINISTRATION, AS INDICATED PREVIOUSLY, HAS TAKEN THE POSITION THAT ANY COVERT ASSISTANCE TO CONTRA FORCES HAS BEEN PROVIDED SOLELY TO PRESSURE NICARAGUA "TO CEASE ITS AGGRESSION AGAINST EL SALVADOR." ID. ALTHOUGH THIS EXPLANATION MAY BE DISPUTED, WE DO NOT HAVE A SUFFICIENT BASIS AT THIS TIME TO QUESTION THE ADMINISTRATION'S STATED MOTIVATION FOR ITS ACTIONS IN THIS CONTROVERSIAL FOREIGN POLICY MATTER. CONSEQUENTLY, WE CANNOT CONCLUDE THAT SECTION 793 HAS ACTUALLY BEEN VIOLATED, AND THEREFORE HAVE NO BASIS FOR MAKING A DETERMINATION THAT THE ANTIDEFICIENCY ACT HAS ALSO BEEN VIOLATED.

UNLESS YOU INDICATE TO US OTHERWISE, THIS OPINION WILL BE MADE PUBLICLY AVAILABLE AFTER 30 DAYS.

/1/ THE LATTER APPROPRIATION ACT CONTAINED AN OVERALL $24,000,000 FUNDING CAP ON DOD AND CIA SPENDING HAVING THE PURPOSE OR THE EFFECT OF "SUPPORTING, DIRECTLY OR INDIRECTLY, MILITARY OR PARAMILITARY OPERATIONS IN NICARAGUA BY ANY NATION, GROUP, ORGANIZATION, MOVEMENT, OR INDIVIDUAL." DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1984, PUB.L. NO. 98 -212, SEC. 775, 97 STAT. 1452 (1983).

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