B-163268, FEBRUARY 8, 1968, 47 COMP. GEN. 418

B-163268: Feb 8, 1968

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UNLESS THE PRESIDENT DETERMINES SUCH PURCHASE OR ACQUISITION IS VITAL TO THE NATIONAL SECURITY. IS MUCH BROADER IN SCOPE THAN THE WORD "PURCHASE. IN OTHER WORDS TO INDICATE THAT THE ARTICLE WAS BOUGHT. WHEREAS THE WORD "ACQUISITION" IS CONSIDERED TO MEAN OBTAINING AN ARTICLE BY ANY MEANS WHATSOEVER. ARE KNOWN AS THE CONTE-LONG AMENDMENTS. KOREA UNLESS THE PRESIDENT DETERMINES THAT SUCH PURCHASE OR ACQUISITION OF WEAPONS SYSTEMS ARE VITAL TO THE NATIONAL SECURITY OF THE UNITED STATES AND REPORTS WITHIN 30 DAYS EACH SUCH DETERMINATION TO THE CONGRESS: * * *. THE PRESIDENT IS DIRECTED TO WITHHOLD ECONOMIC ASSISTANCE IN AN AMOUNT EQUIVALENT TO THE AMOUNT SPENT BY ANY UNDERDEVELOPED COUNTRY OTHER THAN GREECE.

B-163268, FEBRUARY 8, 1968, 47 COMP. GEN. 418

FOREIGN AID PROGRAMS - MILITARY ASSISTANCE - PURCHASE OR ACQUISITION OF WEAPONS - PROHIBITION THE PROHIBITION IN THE FOREIGN ASSISTANCE AND RELATED AGENCIES APPROPRIATION ACT, 1968--- KNOWN AS THE CONTE-LONG AMENDMENTS--- AGAINST THE USE OF THE FUNDS TO FINANCE THE "PURCHASE OR ACQUISITION" OF SOPHISTICATED WEAPONS SYSTEM BY OR FOR ANY UNDERDEVELOPED COUNTRY, OTHER THAN THOSE SPECIFICALLY EXEMPTED, UNLESS THE PRESIDENT DETERMINES SUCH PURCHASE OR ACQUISITION IS VITAL TO THE NATIONAL SECURITY, AND SO REPORTS TO CONGRESS, APPLIES TO MILITARY GRANT AID AS WELL AS TO THE FOREIGN MILITARY SALES PROGRAM. THE LEGISLATIVE HISTORY OF THE ACT EVIDENCES AN INTENT TO PREVENT SELLING AND GIVING SOPHISTICATED WEAPONS TO UNDERDEVELOPED COUNTRIES IN ORDER TO CONSERVE THEIR RESOURCES FOR ECONOMIC AND SOCIAL PROGRAMS, AND TO PREVENT AN ARMS RACE. THEREFORE, TO EXEMPT MILITARY GRANT AID FROM THE PROHIBITION WOULD DEFEAT ITS PURPOSE. WORDS AND PHRASES - "ACQUISITION" THE WORD "ACQUISITION" IN THE PHRASE "PURCHASE OR ACQUISITION" AS USED IN THE FOREIGN ASSISTANCE AND RELATED AGENCIES APPROPRIATION ACT, 1968, IS MUCH BROADER IN SCOPE THAN THE WORD "PURCHASE," A WORD GENERALLY USED TO INDICATE THE SALE OF AN ARTICLE, IN OTHER WORDS TO INDICATE THAT THE ARTICLE WAS BOUGHT, WHEREAS THE WORD "ACQUISITION" IS CONSIDERED TO MEAN OBTAINING AN ARTICLE BY ANY MEANS WHATSOEVER.

TO THE SECRETARY OF DEFENSE, FEBRUARY 8, 1968:

BY LETTER OF JANUARY 3, 1968, THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REFERS TO CERTAIN PROVISIONS IN THE FOREIGN ASSISTANCE AND RELATED AGENCIES APPROPRIATION ACT, 1968, PUB.L. 90-249, 81 STAT. 936, WHICH, HE STATES, ARE KNOWN AS THE CONTE-LONG AMENDMENTS. THESE PROVISIONS READ AS FOLLOWS:

"* * * PROVIDED FURTHER, THAT NONE OF THE FUNDS CONTAINED IN THIS PARAGRAPH AND NONE OF THE FUNDS CONTAINED IN THE MILITARY ASSISTANCE CREDIT SALES REVOLVING FUND SHALL BE USED TO FINANCE DIRECTLY OR INDIRECTLY THE PURCHASE OR ACQUISITION OF SOPHISTICATED WEAPONS SYSTEMS, SUCH AS MISSILE SYSTEMS AND JET AIRCRAFT FOR MILITARY PURPOSES, BY OR FOR ANY UNDERDEVELOPED COUNTRY OTHER THAN GREECE, TURKEY, IRAN, ISRAEL, THE REPUBLIC OF CHINA, THE PHILIPPINES, AND KOREA UNLESS THE PRESIDENT DETERMINES THAT SUCH PURCHASE OR ACQUISITION OF WEAPONS SYSTEMS ARE VITAL TO THE NATIONAL SECURITY OF THE UNITED STATES AND REPORTS WITHIN 30 DAYS EACH SUCH DETERMINATION TO THE CONGRESS: * * *.

"SEC. 119. THE PRESIDENT IS DIRECTED TO WITHHOLD ECONOMIC ASSISTANCE IN AN AMOUNT EQUIVALENT TO THE AMOUNT SPENT BY ANY UNDERDEVELOPED COUNTRY OTHER THAN GREECE, TURKEY, IRAN, ISRAEL, THE REPUBLIC OF CHINA, THE PHILIPPINES, AND KOREA FOR THE PURCHASE OF SOPHISTICATED WEAPONS SYSTEMS, SUCH AS MISSILE SYSTEMS AND JET AIRCRAFT FOR MILITARY PURPOSES FROM ANY COUNTRY, UNLESS THE PRESIDENT DETERMINES THAT SUCH PURCHASE OR ACQUISITION OF WEAPONS SYSTEMS ARE VITAL TO THE NATIONAL SECURITY OF THE UNITED STATES AND REPORTS WITHIN 30 DAYS EACH SUCH DETERMINATION TO THE CONGRESS.'

IN THE FIRST QUOTED AMENDMENT (PROVISO) THE ASSISTANT SECRETARY CALLS OUR ATTENTION TO THE WORDS "PURCHASE OR ACQUISITION.' HE STATES THAT THESE WORDS MAY BE READ AS REFERRING ONLY TO REIMBURSABLE TRANSACTIONS, WHETHER DIRECTLY FINANCED THROUGH A GOVERNMENT-TO GOVERNMENT SALE OR A COMMERCIAL SALE INDIRECTLY FINANCED THROUGH GOVERNMENT GUARANTIES OR GOVERNMENT PAYMENTS TO THE COMMERCIAL SUPPLIER; BUT THAT ALTERNATIVELY, IT MAY BE ARGUED THAT THIS LANGUAGE WAS INTENDED TO RESTRICT THE GRANT AID (MILITARY ASSISTANCE) PROGRAM AS WELL AS THE FOREIGN MILITARY SALES PROGRAM. ACCORDINGLY, OUR OPINION ON THIS ISSUE IS SOUGHT.

THE ASSISTANT SECRETARY EXPRESSES THE VIEW THAT IT IS EVIDENT NOT ONLY FROM THE LEGISLATIVE HISTORY BUT ALSO FROM THE SECOND AMENDMENT QUOTED ABOVE (SECTION 119), THAT THE PRIMARY IF NOT THE ONLY CONCERN OF CONGRESS IN ADOPTING THESE AMENDMENTS WAS TO DISCOURAGE THE PURCHASE OF SOPHISTICATED WEAPONS BY LESS DEVELOPED COUNTRIES. HE STATES THAT IT WAS BELIEVED BY THE CONGRESS THAT WERE THESE PURCHASES CURTAILED, LATIN AMERICAN AND OTHER LESS DEVELOPED COUNTRIES WOULD NOT DIVERT THEIR LIMITED RESOURCES FROM DOMESTIC ECONOMIC DEVELOPMENT NEEDS, AND THAT, CONCOMITANTLY, LESS UNITED STATES MONEY WOULD BE REQUIRED AS FOREIGN AID, AND THAT TO ACCOMPLISH THIS GOAL, THE CONGRESS TOOK A TWO-PRONGED APPROACH. HE POINTS OUT THAT THE FIRST AMENDMENT PROHIBITS THE USE OF FOREIGN ASSISTANCE FUNDS TO FINANCE THE "PURCHASE OR ACQUISITION" OF SOPHISTICATED WEAPONS FROM UNITED STATES SOURCES; AND THAT THE SECOND AMENDMENT PENALIZES A COUNTRY WHICH PURCHASES SUCH WEAPONS FROM UNITED STATES OR THIRD COUNTRY SOURCES BY WITHHOLDING AN EQUIVALENT AMOUNT OF ECONOMIC AID.

THE ASSISTANT SECRETARY ADVISES THAT THIS TWO-PRONGED APPROACH WAS DEEMED NECESSARY BECAUSE OF THE CHANGED NATURE OF THE MILITARY ASSISTANCE AND FOREIGN MILITARY SALES PROGRAMS. HE REPORTS THAT UNTIL RECENTLY, VIRTUALLY ALL DEFENSE ARTICLES FURNISHED BY THE UNITED STATES TO LESS DEVELOPED COUNTRIES WERE PROVIDED ON A GRANT BASIS; BUT THAT DURING THE PAST FIVE YEARS, HOWEVER, PURSUANT TO THE REQUIREMENT OF SECTION 506 (C) OF THE FOREIGN ASSISTANCE ACT OF 1961, AS AMENDED, GRANT MILITARY AID HAS BEEN PROGRESSIVELY REDUCED AND INCREASED EMPHASIS HAD BEEN PLACED ON FOREIGN MILITARY SALES. AS A RESULT OF THIS GROWING CHANGE IN THE RELATIVE SIZE OF THE TWO PROGRAMS HE INFORMS US THAT THE CONGRESS BECAME CONCERNED THAT UNITED STATES ECONOMIC ASSISTANCE DOLLARS AND INDIGENOUS RESOURCES WERE BEING DIVERTED TO CREATE UNNECESSARILY LARGE MILITARY ESTABLISHMENTS. THE ASSISTANT SECRETARY STATES THAT BECAUSE OF THIS CONCERN AND THE RELATED CONCERN ABOUT THE DEVELOPMENT OF ARMS RACES, THE CONTE-LONG AMENDMENTS WERE PROPOSED BY THE HOUSE COMMITTEE ON APPROPRIATIONS. HE POINTS OUT THAT MR. LONG, SPEAKING ON THE FLOOR OF THE HOUSE ON DECEMBER 14, 1967, MADE THE FOLLOWING STATEMENT: "* * * THIS FOREIGN AID BILL IS INTENDED, AMONG OTHER THINGS TO PUT AN END TO THE SQUANDERING OF AMERICAN MONEY BY MILITARY ELITES IN POOR COUNTRIES - ELITES MORE INTERESTED IN FEEDING THEIR OWN PRIDE THAN THEIR OWN HUNGRY FELLOW CITIZENS. (CONG. REC. DECEMBER 14, 1967 AT H 17000).' THE ASSISTANT SECRETARY'S LETTER ONTINUES:"THAT THIS CONCERN WAS DIRECTED AT THE SALES PROGRAM AND NOT AT THE GRANT MILITARY ASSISTANCE PROGRAM IS EVIDENT FROM THE NATURE OF THE COMPLAINT. IN THE WORDS OF MR. CONTE IN HIS -ADDITIONAL VIEWS' APPENDED TO THE REPORT OF THE COMMITTEE ON APPROPRIATIONS: -IT IS IMPORTANT THAT LESS DEVELOPED COUNTRIES NOT BE ENCOURAGED TO DIVERT THEIR LIMITED RESOURCES FROM PROGRAMS OF ECONOMIC AND SOCIAL DEVELOPMENT TO BUILDING MILITARY ESTABLISHMENTS LARGER THAN ARE NECESSARY TO MAINTAIN INTERNAL SECURITY AND DEFEND AGAINST BORDER INCURSIONS * * * WE ARE DEALING WITH COUNTRIES WHO SIMPLY CANNOT AFFORD TO AND DO NOT HAVE ANY NEED TO INVEST THEIR LIMITED RESOURCES IN THE SOPHISTICATED DEVICES THAT MAN HAS INVENTED TO DESTROY HIMSELF.- (H.REPT. NO. 891, 90TH CONGRESS, 1ST SESSION, P. 28). CLEARLY, THIS COMPLAINT IS NOT DIRECTED AT GRANT AID. UNDER THE GRANT AID PROGRAM, IT IS UNITED STATES FUNDS -- NOT RECIPIENT COUNTRY FUNDS -- WHICH ARE INVESTED IN SUCH WEAPONS. "THIS CONCLUSION IS BORNE OUT BY THE CAPTION OF THE SECTION OF MR. CONTE'S ADDITIONAL VIEWS' DESCRIBING THE AMENDMENTS, WHICH READS - RESTRICTING SALES OF SOPHISTICATED WEAPONS' (ID. AT P. 27) AND HIS EXPLICIT DESCRIPTION THEREIN OF THE AMENDMENTS, NAMELY, THAT -OUR BILL THIS YEAR HAS TWO NEW PROVISIONS DEALING WITH THE SALE OF SOPHISTICATED MILITARY WEAPONS.- (IBID). SIMILARLY, THE BODY OF THE REPORT ITSELF SUMMARIZES THE AMENDMENT AS PROHIBITING THE USE OF FUNDS TO FINANCE THE - PURCHASE- OF SOPHISTICATED WEAPONS BY OR FOR ANY LESS DEVELOPED COUNTRY. (ID. AT P. 20; SEE ALSO P. 27).'

THE ASSISTANT SECRETARY REFERS TO (AND QUOTES) CERTAIN STATEMENTS OF MR. LONG (ONE OF THE SPONSORS OF THE AMENDMENT) IN THE CONGRESSIONAL RECORD AS BEING IN ACCORD WITH THE FOREGOING. HE STATES THAT THE SAME INTERPRETATION OF THE SCOPE OF THE AMENDMENT WAS ALSO SHARED BY THE SENATE AND IN SUPPORT THEREOF REFERS TO THE FOLLOWING STATEMENT IN THE REPORT OF THE SENATE APPROPRIATIONS COMMITTEE (S.REPT. NO. 807, 90TH CONGRESS, 1ST SESSION, P. 16):

"SECTION 119, INCLUDED IN THE BILL IN THE HOUSE COMMITTEE, HAS BEEN DELETED BY THE SENATE COMMITTEE. UNDER THE HEADING, -MILITARY ASSISTANCE, - IT WAS EXPLAINED THAT THE COMMITTEE HAS INCLUDED IN THE BILL LANGUAGE WHICH IS SIMILAR TO LANGUAGE AGREED TO IN THE AUTHORIZATION ACT RELATING TO THE SUBJECT OF UNDERDEVELOPED COUNTRIES PURCHASING SOPHISTICATED MILITARY EQUIPMENT.' ON THE BASIS OF THE LEGISLATIVE HISTORY OF THE AMENDMENTS, THE ASSISTANT SECRETARY IS OF THE VIEW THAT THERE CAN BE NO DOUBT THAT IT WAS NOT THE GRANT AID PROGRAM BUT THE FOREIGN MILITARY SALES PROGRAM AND THE ROLE OF THE UNITED STATES AS A COMPETITIVE SUPPLIER WHICH TROUBLED THE CONGRESS. HE STATES THAT NO CONTENTION WAS MADE THAT THE GRANT AID PROGRAM PRODUCED THE ASSERTED EVILS WHICH CONGRESS WANTED TO PREVENT.

ASSUMING THIS TO BE THE CASE, THE ASSISTANT SECRETARY QUESTIONS WHETHER THE CONGRESS USED LANGUAGE WHICH NECESSARILY, IF UNINTENTIONALLY, ALSO COVERS THE GRANT AID PROGRAM. HE AGAIN POINTS OUT THAT THE FIRST AMENDMENT (THE PROVISO) SPEAKS OF "ACQUISITION" AS WELL AS "PURCHASE.' WHILE HE AGREES THAT "ACQUISITION" COULD BE READ AS INCLUDING MILITARY GRANT AID, HE BELIEVES THAT IN LIGHT OF THE LEGISLATIVE HISTORY OF THE AMENDMENTS IT WOULD BE MORE REASONABLE TO READ THE WORD "ACQUISITION" AS A SYNONYM FOR "PURCHASE," USED OUT OF AN OVER-ABUNDANCE OF CAUTION IN DRAFTING BECAUSE OF SEVERAL TECHNIQUES EMPLOYED IN FINANCING FOREIGN MILITARY SALES WHICH -- HE STATES -- HAD RECEIVED WIDESPREAD PUBLICITY AT THE TIME, SUCH AS THE SO-CALLED "COUNTRY X" LOANS OF THE EXPORT-IMPORT BANK.

THAT THE WORD "ACQUISITION" IN THE CONTE-LONG AMENDMENTS IS USED ONLY IN A SALES CONTEXT IS ALSO DEMONSTRATED -- ACCORDING TO THE ASSISTANT SECRETARY -- BY THE FACT THAT IT IS USED AS THE OBJECT OF THE VERB "FINANCE," A VERB NOT USED BY THE CONGRESS IN THE CONTEXT OF FURNISHING DEFENSE ARTICLES AND DEFENSE SERVICES ON A GRANT BASIS. IN SUPPORT OF THIS STATEMENT HE REFERS TO VARIOUS SECTIONS OF THE FOREIGN ASSISTANCE ACT OF 1961, AS AMENDED (NAMELY, SECTIONS 503 (A), 524, 521 (B), 507 AND 508). BASED ON THE LANGUAGE USED IN THE VARIOUS SECTIONS OF THE LAST CITED ACT TO REFER TO GRANT AID, HE CONCLUDES THAT THE TERMS USED TO REFER TO MILITARY GRANT AID ARE ,TERMS OF ART" AND ARE SO RECOGNIZED BY THE CONGRESS. HE STATES THAT IF THE CONTE-LONG AMENDMENTS HAD BEEN INTENDED TO APPLY TO GRANT AID, THE CONGRESS CLEARLY KNEW HOW TO EXPRESS THAT INTENT; AND THAT INASMUCH AS THE CONGRESS DID NOT USE THE LANGUAGE CUSTOMARILY USED TO REFER TO GRANT AID, THAT IS PERSUASIVE EVIDENCE THAT IT HAD NO SUCH INTENT.

THE ASSISTANT SECRETARY'S LETTER CONTINUES: "MENTION SHOULD ALSO BE MADE OF OTHER LANGUAGE IN THE FIRST CONTE-LONG AMENDMENT WHICH MIGHT BE MISREAD BY THE UNINITIATED. THE AMENDMENT NOT ONLY ADDRESSES FUNDS CONTAINED IN THE -MILITARY ASSISTANCE CREDIT SALES REVOLVING FUND- * BUT ALSO -THE FUNDS CONTAINED IN THIS PARAGRAPH,- I.E., THE APPROPRIATION LINE ITEM FOR -MILITARY ASSISTANCE.- IT MIGHT BE THOUGHT FROM THIS REFERENCE TO MILITARY ASSISTANCE FUNDS -- IF READ OUT OF CONTEXT FROM THE STATUTORY SCHEME -- THAT THE SCOPE OF THE AMENDMENT INCLUDES GRANT AID. THIS REFERENCE MUST BE READ, HOWEVER, IN THE CONTEXT OF SECTION 524 (A) OF THE FOREIGN ASSISTANCE ACT, WHICH CONFERS THE AUTHORITY FOR THE FOREIGN MILITARY SALES FUND. THAT SECTION PROVIDES THAT THE CAPITAL OF THE FUND SHALL BE OBTAINED BY THE TRANSFER OF MILITARY ASSISTANCE APPROPRIATIONS INTO THE FUND BY THE PRESIDENT IN SUCH AMOUNTS AS HE MAY DETERMINE. THE PRESENTATION TO THE CONGRESS OF THE FY 1968 SALES PROGRAM CONTEMPLATED THAT $60 MILLION OF MILITAARY ASSISTANCE APPROPRIATIONS WOULD BE SO TRANSFERRED FOR FINANCING THE SALES PROGRAM, WHICH REQUIRED $120 OF OBLIGATIONAL AUTHORITY. THE BALANCE OF THE FUNDS NEEDED WERE TO COME FROM REPAYMENTS BY PURCHASING COUNTRIES TO THE FUND. "FOR THE FOREGOING REASONS, WE HAVE CONCLUDED THAT THE CONTE-LONG AMENDMENTS DO NOT APPLY TO GRANT MILITARY AID. WE HAVE HESITATED, HOWEVER, TO ISSUE AN OPINION TO THAT EFFECT BECAUSE OF CERTAIN REMARKS MADE BY MR. CONTE DURING DEBATE ON THE CONFERENCE REPORT WHICH COULD BE INTERPRETATED AS MEANING THAT HE MAY HAVE INTENDED TO PROHIBIT GRANT AID OF SOPHISTICATED WEAPONS AS WELL AS SALES. THESE REMARKS WERE: "-* * * THERE IS NO WAY IN THE WORLD THAT THE UNITED STATES CAN GIVE OR SELL THESE PLANES TO ANY UNDERDEVELOPED COUNTRY IN LATIN AMERICA.- (CONG. REC. DECEMBER 14, 1967 AT H17001).

* * * * * * * "-FOR THE LIFE OF ME, MR. SPEAKER, I CANNOT SEE HOW SELLING OR GIVING F5'S TO LATIN AMERICAN COUNTRIES OR THE PURCHASE BY LATIN AMERICAN COUNTRIES OF JET FIGHTERS FROM ANY COUNTRY IN THE WORLD * * *.- (ID. AT H17002).'

IN THE ASSISTANT SECRETARY'S OPINION, THESE REMARKS OF MR. CONTE WERE NOT AS CAREFULLY CONSIDERED AS HIS FORMAL "ADDITIONAL VIEWS" AND ARE NEITHER CONSISTENT WITH THE OVERALL LEGISLATIVE HISTORY OF THE AMENDMENTS NOR THEIR LANGUAGE. SINCE THEY WERE MADE BY ONE OF THE SPONSORS OF THE AMENDMENTS, HOWEVER, YOUR DEPARTMENT THINKS IT APPROPRIATE TO REQUEST A RULING FROM THE GENERAL ACCOUNTING OFFICE. ACCORDINGLY, OUR CONSIDERATION OF THE QUESTION IS REQUESTED.

CERTAIN OF THE PORTIONS OF THE LEGISLATIVE HISTORY OF THE CONTE-LONG AMENDMENTS, INCLUDING SOME OF THOSE PARTS REFERRED TO IN THE ASSISTANT SECRETARY'S LETTER, MIGHT SEEM TO INDICATE THAT THE CONGRESS WAS CONCERNED ONLY WITH SALES OF SOPHISTICATED WEAPONS AND NOT TO GRANTS OF SUCH WEAPONS UNDER THE MILITARY GRANT AID PROGRAM. HOWEVER, A CAREFUL EXAMINATION OF THE COMPLETE LEGISLATIVE HISTORY LEADS US TO A DIFFERENT CONCLUSION.

IT IS CLEAR FROM THE LEGISLATIVE HISTORY OF THE AMENDMENTS THAT THE PURPOSE OF THE AMENDMENTS AND THE CONCERN OF THE CONGRESS (AND THE SPONSORS) WAS TWO-FOLD. FIRST, IT WAS BELIEVED THAT THE PURCHASE OF SOPHISTICATED WEAPONS BY THE LESS DEVELOPED COUNTRIES FROM THEIR LIMITED RESOURCES DIVERTED SUCH RESOURCES FROM DOMESTIC ECONOMIC DEVELOPMENT NEEDS AND, COINCIDENTLY, MIGHT REQUIRE MORE UNITED STATES FUNDS AS FOREIGN AID. SECOND, THE CONGRESS WAS CONCERNED WITH THE UNITED STATES DOING ANYTHING THAT MIGHT ASSIST OR ENCOURAGE AN ARMS RACE BETWEEN UNDERDEVELOPED COUNTRIES. THUS, THE PURPOSE OF THE CONGRESS IN ENACTING THE AMENDMENTS WAS (1) TO PREVENT, IF POSSIBLE, THE DIVERSION OF THE LIMITED RESOURCES OF UNDERDEVELOPED COUNTRIES FOR SOPHISTICATED WEAPONS, AND (2) TO PREVENT AN ARMS RACE. IT IS OBVIOUS THAT IF THE UNITED STATES FURNISHES SOPHISTICATED WEAPONS TO AN UNDERDEVELOPED COUNTRY EITHER BY WAY OF PURCHASE (SALE) OR GRANT IT MIGHT CONTRIBUTE TO AN ARMS RACE. THUS, IT IS CLEAR THAT FURNISHING UNDERDEVELOPED COUNTRIES SOPHISTICATED WEAPONS UNDER THE MILITARY GRANT AID PROGRAM COULD PRODUCE ONE OF THE ASSERTED EVILS WHICH THE CONGRESS WANTED TO PREVENT, I.E., AN ARMS RACE. HENCE, TO HOLD THAT THE APPROPRIATION PROVISO QUOTED ABOVE DOES NOT APPLY TO THE GRANT AID (MILITARY ASSISTANCE) PROGRAM MIGHT TEND TO DEFEAT ONE OF THE PRINCIPAL PURPOSES OF THE PROVISO.

IN CONNECTION WITH THE INTENT OF THE AMENDMENTS, NOTE THE FOLLOWING PERTINENT DISCUSSION FROM PART I OF THE HOUSE HEARINGS OF THE FOREIGN ASSISTANCE AND RELATED AGENCIES APPROPRIATION FOR 1968 (PAGE 586):

"MR. CONTE. HOW ABOUT THE UNDERDEVELOPED COUNTRIES? WHAT ABOUT WHEN ETHIOPIA WANTED FIGHTER PLANES AND BOMBERS AND WE GAVE THEM OR SOLD THEM TO THAT COUNTRY?

"MR. CONTE. COULD YOU GIVE THE ANSWER TO THE ETHIOPIAN PROBLEM SPECIFICALLY?

"MR. KUSS. WHILE I AM LOOKING FOR THAT, LET ME MAKE THE GENERAL COMMENT THAT IN THESE COUNTRIES WE HAVE DECLINED REQUESTS OF THEIRS IN REQUIREMENTS THREE TIMES -- WE HAVE DECLINED THREE TIMES TO SELL THE AMOUNT OF THE REQUESTS. SO YOU CAN SEE VERY QUICKLY THAT FROM OUR POINT OF VIEW WE ARE NOT SELLING WHAT THEY ARE REQUESTING.

"TRUTHFULLY, I DO NOT RECALL HAVING SOLD ANYTHING TO ETHIOPIA.

"MR. CONTE. YOU MUST HAVE GIVEN THEM THOSE PLANES, THEN.

"ADMIRAL HEINZ. IT WAS A GRANT AID PROGRAM.

"MR. CONTE. LET THE RECORD SHOW WE GAVE THE PLANES TO THEM, WHICH IS EVEN WORSE.

"I DO NOT THINK THEY HAD MONEY TO BUY THEM ANYWAY. I DO NOT KNOW HOW THEY GOT THE MONEY TO FLY THEM.' AS YOU ARE AWARE, MR. CONTE WAS ONE OF THE SPONSORS OF THE AMENDMENTS, AND IT IS CLEAR FROM THE FOREGOING THAT HE WAS CONCERNED WITH GRANTS OF SOPHISTICATED WEAPONS.

ALSO, IN CONNECTION WITH THE CONGRESSIONAL INTENT AND CONCERN, IN ADDITION TO THE REMARKS OF THE SPONSORS OF THE AMENDMENTS REFERRED TO IN THE ASSISTANT SECRETARY'S LETTER, YOUR ATTENTION IS CALLED TO OTHER STATEMENTS MADE BY THE SPONSORS OF THE AMENDMENTS AND OTHER MEMBERS OF THE HOUSE DURING DISCUSSIONS ON THE BILL (H.R. 13893) WHICH BECAME THE FOREIGN ASSISTANCE AND RELATED AGENCIES APPROPRIATION ACT, 1968. FOR EXAMPLE, DURING HOUSE FLOOR DEBATE ON THE MEASURE PRIOR TO ITS ENACTMENT BY THE HOUSE, THE FOLLOWING PERTINENT STATEMENTS WERE MADE BY MR. CONTE:

"MR. SPEAKER, THE AMENDMENTS INVOLVED HERE DEAL WITH THE SELLING OF SOPHISTICATED WEAPONS OF WAR TO MOST UNDERDEVELOPED COUNTRIES. ONE AMENDMENT WILL PREVENT THE SELLING AND THE GIVING OF THESE SOPHISTICATED WEAPONS OF WAR SUCH AS JET FIGHTERS AND MISSILE SYSTEMS TO THESE COUNTRIES. THE OTHER AMENDMENT AGAINST WHICH A POINT OF ORDER MAY LIE WOULD BE THAT IF THESE COUNTRIES WENT OUT AND BOUGHT SOPHISTICATED WEAPONS OF WAR SUCH AS JET FIGHTERS FROM ANY OTHER COUNTRY IN THE WORLD, INCLUDING THE UNITED STATES, THEN ECONOMIC ASSISTANCE WOULD BE CUT DOWN TO THAT COUNTRY ACCORDINGLY. I AM PARTICULARLY CONCERNED WITH THE SITUATIONS IN LATIN AMERICA AND AMERICA.

"MR. SPEAKER, I HAVE SAT ON THE SUBCOMMITTEE ON FOREIGN OPERATIONS FOR 9 YEARS ON THE COMMITTEE ON APPROPRIATIONS. I HAVE NEVER TRIED TO TRESPASS UPON THE JURISDICTION OF THE COMMITTEE ON FOREIGN AFFAIRS. MR. SPEAKER, FOR 9 YEARS I HAVE HEARD MEMBERS FROM THE EXECUTIVE BRANCH COME BEFORE OUR COMMITTEE AND TESTIFY THAT THEY AGREE WITH US THAT THESE DEVELOPING NATIONS AND THESE UNDERDEVELOPED NATIONS THROUGHOUT THE WORLD SHOULD NOT HAVE THESE SOPHISTICATED WEAPONS OF WAR.

"MR. CONTE. AND YEAR AFTER YEAR WHEN THEY WOULD COME BACK WE WOULD ASK THEM THE SAME QUESTION AND THEY WOULD HAVE SOME EXCUSE AS TO WHY THEY SOLD OR GAVE THESE WEAPONS OF WAR TO THESE UNDERDEVELOPED NATIONS.

"MR. CONTE. MR. SPEAKER, I HAVE READ THE AUTHORIZATION BILL AND IT SIMPLY DOES NOT GO FAR ENOUGH WITH RESPECT TO THE ISSUES COVERED IN OUR APPROPRIATIONS BILL.

"MR. SPEAKER, IF ANY OF THESE COUNTRIES IN LATIN AMERICA OR IN AFRICA GET INTO AN ARMS RACE IN SOPHISTICATED WEAPONS OF WAR, THEIR ECONOMIC ASSISTANCE SHOULD BE CUT DOWN ACCORDINGLY.' (113 CONG. REC. NOVEMBER 16, 1967, H15409). ALSO:

"MR. CONTE. * * *

"I ALSO STRONGLY URGE THE APPROVAL OF TWO NEW PROVISIONS IN OUR BILL DEALING WITH RESTRICTING THE SALE OF SOPHISTICATED MILITARY WEAPONS TO LESS-DEVELOPED COUNTRIES. ONE PROVISION IN EFFECT PROHIBITS THE USE OF OUR MILITARY ASSISTANCE PROGRAM AND OF THE DEFENSE DEPARTMENT'S REVOLVING CREDIT SALES FUND TO FINANCE THE PURCHASE OR ACQUISITION OF SOPHISTICATED WEAPONS FOR OR BY MOST LESS-DEVELOPED COUNTRIES.

"I WOULD CERTAINLY ADD TO THAT LIST AN ITEM LIKE A SUBMARINE. THESE ARE BASICALLY THE KINDS OF WEAPONS THAT ARE NOT NEEDED TO MAINTAIN INTERNAL SECURITY AND WHICH WE SHOULD NOT BE ASSISTING LESS-DEVELOPED COUNTRIES IN ACQUIRING OR PURCHASING.

"OUR PROVISIONS ARE DESIGNED TO DEAL WITH BASIC AND FUNDAMENTAL ISSUES. OUR COUNTRY SHOULD PLAY NO ROLE IN ASSISTING OR ENCOURAGING ANY ARMS RACE IN THESE COUNTRIES WHICH CANNOT AFFORD TO SPEND THEIR LIMITED RESOURCES ON UNNECESSARY SOPHISTICATED MILITARY HARDWARE. I HAVE BEEN DEEPLY CONCERNED FOR SOME TIME WITH THE DEVELOPMENT OF AN ARMS RACE IN LATIN AMERICA. I AM SIMILARLY CONCERNED WITH THIS DEVELOPMENT IN AFRICA.

"THE CONTROL AND LIMITATION OF ARMS IN THE WORLD TODAY IS A MATTER OF THE HIGHEST CONCERN. ARMS RACES IN THESE AREAS WOULD CONSTITUTE ACTION WHICH CAN ONLY BE DESCRIBED AS DANGEROUS AND WASTEFUL. THIS COUNTRY SHOULD NOT BE A PARTY TO SUCH ACTIONS.

"I DO NOT BELIEVE THAT OUR REFUSAL TO PLAY A ROLE IN THESE EVENTS REPRESENTS AN INTERFERENCE IN THE AFFAIRS OF OTHER NATIONS. I BELIEVE, RATHER, THAT IT IS OUR RESPONSIBILITY TO AVOID ASSISTING OR ENCOURAGING ACTS WHICH WE BELIEVE TO BE WRONG.

"WE ARE DEALING WITH COUNTRIES WHO CANNOT AFFORD TO, AND DO NOT HAVE THE NEED TO, INVEST THEIR PRECIOUS LIMITED RESOURCES INSOPHISTICATED MILITARY WEAPONS.

"WE MUST MAKE A TOTAL EFFORT TO PREVENT THIS FROM OCCURRING. SUCH EFFORT MUST INCLUDE OUR REFUSAL TO SUPPLY THEM WITH SOPHISTICATED MILITARY WEAPONS.' (113 CONG. REC. NOVEMBER 16, 1967, H15420). FURTHER, DURING FLOOR DISCUSSION MR. COHELAN STATED THAT:

"THESE WEAPONS, SOPHISTICATED AND OFTEN OTHERWISE, ARE CONTRIBUTING TO A MOST DANGEROUS AND COSTLY ARMS RACE. NOT ONLY ARE THESE EXPENSIVE WEAPONS USING SOCIAL DEVELOPMENT FUNDS, BUT THEY ARE PUTTING MOST DEADLY AND DESTRUCTIVE WEAPONS IN THE HANDS OF COUNTRIES WHICH MAY NOT BE ABLE TO AVOID THE USE OF THEM.

"IT SHOULD BE A MATTER OF FIRM AMERICAN POLICY TO AVOID FURTHERANCE OF THIS DEADLY AND DIVERTING RACE.

"THE UNITED STATES CANNOT CONTROL THE INTERNAL AFFAIRS OF OTHER SOVEREIGN STATES, BUT WE CAN INDUCE THOSE STATES WHICH RECEIVE OUR AID TO SPEND THEIR RESOURCES AND THOSE THEY RECEIVE FROM US FOR CONSTRUCTIVE AND WORTHWHILE PROJECTS. THE ARMS RACE IS NOT SUCH A PROJECT.' (113 CONG. REC. NOVEMBER 16, 1967, H15432). MR. LONG (ONE OF THE SPONSORS) REMARKED THAT:

"MR. CHAIRMAN, I BELIEVE WE GAVE INDIA HER CHANCE. WE GAVE INDIA A GREAT MANY WEAPONS, AND I BELIEVE MOST OF US REALIZE THAT THEY USED THEM, NOT AGAINST THE COMMUNIST AGGRESSORS, BUT AGAINST A FRIENDLY COUNTRY -- OR A COUNTRY, AT LEAST, WHICH IS TO US -- AND ONE THAT WE WERE HOPING TO HELP.

"I MIGHT SAY TO THE GENTLEMAN THAT MY FIRST CONCERN WITH THIS WHOLE BUSINESS WAS WHEN I WAS IN THE AMRITSAR-LAHORE SECTOR OF THE 15TH INDIAN DIVISION HEADQUARTERS, AND I SAW A WHOLE PARK FULL OF TANKS WHICH WE HAD GIVEN TO PAKISTAN DESTROYED BY TANKS AND ANTITANK WEAPONS WE HAD GIVEN TO INDIA. AT THAT TIME IT DAWNED ON ME THAT OUR FOREIGN AID PROGRAM HAD ACHIEVED THE ULTIMATE IN PERVERSION.' (113 CONG. REC. NOVEMBER 17, 1967, H15517). ADDITIONALLY:

"MR. FRASER. I WOULD JUST LIKE TO SAY, I DO NOT THINK THIS IS A VERY GOOD PROVISION. BUT I WANT TO SAY THAT THE REASON THIS IS IN THE BILL IS BECAUSE THE U.S. GOVERNMENT HAS NOT DONE A VERY GOOD JOB WITH RESPECT TO THE ALLOCATION, OR THE SALE OF ARMS AROUND THE WORLD.

"MR. COHELAN. I THANK THE GENTLEMAN FOR YIELDING. I JUST WANT TO REFER TO TWO POINTS: FIRST, IN REFERENCE TO SOME OF THE IRONIES OF MILITARY ASSISTANCE -- AND THIS HAS ALREADY BEEN REFERRED TO -- THE ONLY REASON I COMMENT IS BECAUSE MY GOOD AND DEAR FRIEND, THE GENTLEMAN FROM NEW YORK (MR. BINGHAM) HAS RAISED THE SUBJECT. IN FACT, IT WAS BECAUSE WE GAVE SUCH SUBSTANTIAL WEAPONS SYSTEMS TO ONE OF THESE COUNTRIES THAT WE GOT INTO TROUBLE WITH THE OTHER COUNTRY.' (113 CONG. REC. NOVEMBER 17, 1967, H15518). SUBSEQUENTLY THE HOUSE PASSED THE BILL WITH THE SO-CALLED CONTE- LONG AMENDMENTS INCLUDED.

CONCERNING THE EFFECT OF THE CONTE-LONG AMENDMENTS AS CONTAINED IN THE BILL AS PASSED BY THE HOUSE, NOTE THE FOLLOWING REMARKS FROM THE SENATE HEARINGS ON THE SAME BILL (PAGES 341, 342 AND 363):

"SENATOR SMITH. I WOULD LIKE TO READ FROM PAGE 20 OF THE HOUSE REPORT:

"IN ADDITION, THE COMMITTEE HAS INCLUDED TWO LANGUAGE PROVISIONS IN THE ACCOMPANYING BILL NOT HERETOFORE CARRIED. THE FIRST PROVISION PROHIBITS THE USE OF MILITARY ASSISTANCE FUNDS AND THE USE OF FUNDS IN THE CREDIT SALES REVOLVING FUND TO FINANCE THE PURCHASE OF SOPHISTICATED WEAPONS SUCH AS MISSILE SYSTEMS AND MILITARY JET AIRCRAFT BY OR FOR ANY UNDERDEVELOPED COUNTRY EXCEPT GREECE, TURKEY, IRAN, ISRAEL, THE REPUBLIC OF CHINA, THE PHILIPPINES, AND KOREA. THE SECOND PROVISION REQUIRES A PRESIDENTIAL DETERMINATION BEFORE THE MILITARY ASSISTANCE PROGRAM FOR ANY COUNTRY CAN BE INCREASED ABOVE THE AMOUNT JUSTIFIED BEFORE THE CONGRESS. A RELATED PROVISION -- SECTION 119 OF THE GENERAL PROVISIONS -- IS RECOMMENDED BY THE COMMITTEE WHICH DIRECTS THE PRESIDENT TO WITHHOLD AN EQUIVALENT AMOUNT OF ECONOMIC ASSISTANCE FROM ANY COUNTRY, WITH THE EXCEPTIONS OF THE SAME SEVEN COUNTRIES NOTED ABOVE, WHICH PURCHASES SOPHISTICATED WEAPONS SYSTEMS SUCH AS MISSILE SYSTEMS AND MILITARY JET AIRCRAFT.

"MOROCCO-ALGERIA MILITARY IMBALANCE

"MR. SECRETARY, MY QUESTION IS: WHAT COUNTRIES DO YOU KNOW OF OR HAVE INFORMATION ON THAT ARE BUYING OR CONTEMPLATING THE PURCHASE OF SOPHISTICATED WEAPONS SUCH AS MISSILE SYSTEMS AND MILITARY AIRCRAFT AND SO FORTH WHERE THE UNITED STATES IS PROVIDING THESE COUNTRIES WITH ASSISTANCE UNDER YOUR PROGRAMS?

"MR. MCNAMARA. BASICALLY, THE PROVISIONS DISCUSSED ON PAGE 20 WOULD PROHIBIT THE USE OF EITHER GRANT AID OR CREDIT SALES FOR THE ACQUISITION OF THESE SO-CALLED SOPHISTICATED SYSTEMS BY ANY ONE OF THE LESS-DEVELOPED NATIONS OTHER THAN THE SEVEN SPECIFICALLY EXEMPTED. THIS WOULD BE PARTICULARLY RESTRICTIVE IN CONNECTION WITH A NATION SUCH AS MOROCCO, FOR EXAMPLE, WHICH FACES A (DELETED) POTENTIAL THREAT FROM ALGERIA. ALGERIA HAS RECEIVED OVER THE PAST FEW YEARS OVER $200 MILLION WORTH OF MILITARY AID FROM THE SOVIET UNION. ALGERIA TODAY HAS AN AIR FORCE -- I WILL PUT THE FIGURES IN THE RECORD SUBSEQUENTLY - APPROXIMATELY THREE OR FOUR TIMES THE SIZE OF THE MOROCCAN AIR FORCE.

"UNDER THESE CIRCUMSTANCES, IT IS REASONABLE FOR MOROCCO TO FEEL THE NEED FOR BUYING A LIMITED NUMBER OF JET AIRCRAFT. SHE HAS APPROACHED US AND NEGOTIATED FOR THE PURCHASE OF F-5 AIRCRAFT FROM US. WE WOULD HAVE BEEN PROHIBITED BY THIS PROPOSED PROVISION FROM SELLING HER THOSE F-5 AIRCRAFT. BECAUSE OF THE PROHIBITION, WE WOULD HAVE BEEN PREVENTED FROM MAKING A CONTRIBUTION TOWARD STABILITY IN THE AREA. THERE IS AN IMBALANCE MILITARILY (DELETED) BETWEEN ALGERIA AND MOROCCO AS A RESULT OF THE SUBSTANTIAL FLOW OF SOVIET ARMS TO ALGERIA IN THE LAST 2 OR 3 YEARS. BELIEVE THIS IMBALANCE COULD BE REDUCED BY SOME LIMITED BUILDUP IN THE MOROCCAN FORCES. IF IT IS NOT, TENSIONS AND INSTABILITY IN THE AREA WILL INCREASE. WE, THEREFORE, AGREED TO PROVIDE A VERY LIMITED AMOUNT OF MILITARY EQUIPMENT TO MOROCCO INCLUDING THE F-5 AIRCRAFT. IN THIS WAY, WHILE DISCOURAGING AN ARMS RACE, WE ARE ASSISTING IN THE DEVELOPMENT OF MODEST DEFENSIVE FORCES THAT WILL SERVE TO LESSEN TENSIONS AND CONTRIBUTE TO STABILITY IN THE AREA. THE RESTRICTION WOULD HAVE PREVENTED US FROM RESPONDING TO THE EARLIER MOROCCAN REQUEST AND WOULD PREVENT A SIMILAR STABILIZING ACTION ON OUR PART IN THE FUTURE. THIS RESTRICTION WOULD PREVENT US EVEN FROM REPLACING LOSSES ARISING FROM AIRCRAFT ACCIDENTS IN THE FUTURE WITH THE RESULT THAT EXISTING IMBALANCE WOULD BE AGGRAVATED.

"SECRETARY MCNAMARA. * * *

"THE SECOND PROBLEM WE HAVE IS WITH THE SO-CALLED CONTE-LONG AMENDMENT WHICH RESTRICTS THE GRANT OR SALE OF SO-CALLED SOPHISTICATED EQUIPMENT TO CERTAIN COUNTRIES. THAT IS A VERY SERIOUS RESTRICTION. "SENATOR PASTORE. COULD WE REWRITE THAT IN A WAY THAT WOULD BE ACCEPTABLE TO YOU WITHOUT ELIMINATING IT ENTIRELY? THE REASON WHY I SAY THAT IS FOR PRACTICAL PURPOSES. READING THE SECTION, IT HAS A TREMENDOUS AMOUNT OF APPEAL. I THINK IT IS A MATTER OF CARRYING OUT YOUR OBJECTIVE, YET PRESERVING IT AND YET REWRITING IT IN SUCH A WAY THAT IT WILL BE ACCEPTABLE.

"SECRETARY MCNAMARA. I THINK THE CONGRESS HAS REALIZED OVER THE YEARS THAT THERE ARE A NUMBER OF RESTRICTIONS IN THE FOREIGN AID LEGISLATION WHICH ARE DESIRABLE WITH CERTAIN EXCEPTIONS, AND IT HAS PROVIDED FOR THOSE RESTRICTIONS AND FOR THE EXCEPTIONS BY LANGUAGE WHICH GIVES THE PRESIDENT, UPON HIS DETERMINATION, AUTHORITY TO MAKE EXCEPTIONS IN THOSE CASES. THINK WE MIGHT BE ABLE TO APPLY THAT PRINCIPLE TO THIS PARTICULAR PROVISION.

"ALTERNATIVE LANGUAGE

"SENATOR PASTORE. TRY TO WORK OUT SOME ALTERNATIVE LANGUAGE.

"SECRETARY MCNAMARA. WE WILL DO SO, MR. CHAIRMAN.

"SENATOR PASTORE. I THINK IF WE GO IN FOR CLEAR DELETION WE WON-T GET VERY FAR.

"SECRETARY MCNAMARA. WE WILL BE HAPPY TO DO SO.' THE IMMEDIATELY PRECEDING REMARKS MAKE IT CLEAR THAT THE CONTE-LONG AMENDMENTS, OR AT LEAST THE PROVISO, WERE CONSIDERED BY THE SECRETARY OF DEFENSE TO APPLY TO THE GRANT MILITARY AID PROGRAM.

SUBSEQUENTLY, IN THE BILL PASSED BY THE SENATE THE SECOND AMENDMENT (SECTION 119 ABOVE) WAS OMITTED AND THE PROVISO (FIRST QUOTED AMENDMENT) WAS AMENDED TO READ AS FOLLOWS:

"PROVIDED FURTHER, THAT NONE OF THE FUNDS APPROPRIATED IN THIS PARAGRAPH (INCLUDING FUNDS USED FOR THE MILITARY ASSISTANCE CREDIT SALES REVOLVING FUND) SHALL BE USED TO FINANCE DIRECTLY OR INDIRECTLY THE PURCHASE OR ACQUISITION OF SOPHISTICATED WEAPONS SYSTEMS, SUCH AS MISSILE SYSTEMS AND JET AIRCRAFT FOR MILITARY PURPOSES, BY OR FOR ANY UNDERDEVELOPED COUNTRY, WHEN THE PRESIDENT FINDS THAT SUCH FUNDS OR THE RECIPIENT OR PURCHASING COUNTRY'S OWN RESOURCES ARE BEING USED FOR UNNECESSARY MILITARY EXPENDITURES, TO A DEGREE WHICH MATERIALLY INTERFERES WITH ITS DEVELOPMENT. IN MAKING SUCH FINDING, THE PRESIDENT SHALL TAKE INTO ACCOUNT (1) THE PERCENTAGE OF THE RECIPIENT OR PURCHASING COUNTRY'S BUDGET WHICH IS DEVOTED TO MILITARY PURPOSES, AND (2) THE DEGREE TO WHICH THE RECIPIENT OR PURCHASING COUNTRY IS USING ITS FOREIGN EXCHANGE RESOURCES TO ACQUIRE MILITARY EQUIPMENT.' HOWEVER, THE BILL AS FINALLY ENACTED INTO LAW CONTAINED THE HOUSE VERSION OF THE TWO PROVISIONS AMENDED TO PROVIDE THAT THE FUNDS IN QUESTION COULD BE USED FOR SOPHISTICATED WEAPONS FOR UNDERDEVELOPED COUNTRIES IF THE PRESIDENT DETERMINED THAT THE FURNISHING OF SUCH WEAPONS TO (I.E., THE PURCHASE OR ACQUISITION THEREOF BY) SUCH COUNTRIES WAS VITAL TO THE NATIONAL SECURITY OF THE UNITED STATES AND REPORTS WITHIN 30 DAYS EACH DETERMINATION TO THE CONGRESS.

AS INDICATED IN THE ASSISTANT SECRETARY'S LETTER, CERTAIN REMARKS MADE BY MR. CONTE DURING FLOOR DEBATE ON THE CONFERENCE REPORT INDICATE THAT THE PROVISO WOULD PROHIBIT GRANT AID OF SOPHISTICATED WEAPONS AS WELL AS SALES. MOREOVER, MR. COHELAN ALSO MADE THE FOLLOWING REMARKS DURING HOUSE FLOOR DEBATE WHICH WOULD LEAD TO THE SAME CONCLUSION:

"MR. SPEAKER, I WILL NOT LONG DETAIN THE HOUSE, BUT I WOULD LIKE TO REITERATE THE POINT THAT THE HOUSE IS EARNEST AND FIRM IN ITS BELIEF THAT THE UNDERDEVELOPED NATIONS OF THE WORLD SHOULD NOT SQUANDER THEIR RESOURCES ON SOPHISTICATED WEAPONS. NOR SHOULD THE UNITED STATES PUT THESE WEAPONS IN THE HANDS OF THESE COUNTRIES, UNLESS OUR OWN DIRECT AND IMMEDIATE NATIONAL SECURITY IS AT STAKE.

"THE REASONS FOR THIS BELIEF ARE SIMPLE. FIRST, THESE COUNTRIES SHOULD BE CONCENTRATING THEIR EFFORTS ON BETTERING THE LIVES OF THEIR PEOPLE, AND NOT ON AMASSING MILITARY PRESTIGE. THE UNITED STATES SHOULD FOSTER SOCIAL AND ECONOMIC DEVELOPMENT AND IT SHOULD NOT FOSTER THE DIVERSION OF PRECIOUS RESOURCES FOR MILITARY ADVENTURES. SECONDLY, THE WIDER THE SPREAD OF THESE SOPHISTICATED AND DEADLY WEAPONS, THE GREATER THE CHANCE THAT THEY WILL ONE DAY BE USED. AND IF THEY ARE USED, WE KNOW THAT THERE IS A CHANCE THAT IT WILL NOT BE AGAINST AN ENEMY OF THE UNITED STATES BUT AGAINST AN ALLY OF THE UNITED STATES -- AS WE HAVE SEEN IN THE CASES OF INDIA, PAKISTAN, GREECE, AND TURKEY.

"UNDER THE PROVISIONS OF THIS BILL WEAPONS LIKE THE F-5 AND F-104 AND MODERN DESTROYERS AND OTHER VESSELS WILL NOT BE MADE AVAILABLE BY THE UNITED STATES UNLESS OUR IMMEDIATE NATIONAL SECURITY IS THREATENED. AND COUNTRIES PURCHASING SUCH WEAPONS FROM OTHER COUNTRIES CAN EXPECT THEIR AID FROM THE UNITED STATES TO BE REDUCED ACCORDINGLY. WE HAVE ALLOWED THE PRESIDENT THE DISCRETION TO PROVIDE THESE SOPHISTICATED WEAPONS IF HE MAKES A DETERMINATION OF A DIRECT AND IMMEDIATE THREAT -- NOT A REMOTE OR HYPOTHETICAL THREAT -- TO OUR NATIONAL SECURITY. WE EXPECT THE PRESIDENT WILL NOT MAKE SUCH DETERMINATIONS WITHOUT THE CLEAREST JUSTIFICATION. (113 CONG. REC. DECEMBER 14, 1967, H17001).'

WHILE WE ARE NOT IN A POSITION TO STATE WHETHER THE REMARKS MADE BY MR. CONTE DURING FLOOR DEBATE ON THE CONFERENCE REPORT WERE AS CAREFULLY CONSIDERED AS HIS FORMAL "ADDITIONAL VIEWS" , WE DO NOT AGREE WITH THE ASSISTANT SECRETARY'S VIEW THAT SUCH REMARKS "ARE NEITHER CONSISTENT WITH THE OVERALL LEGISLATIVE HISTORY OF THE AMENDMENTS NOR THEIR LANGUAGE.' MOREOVER, WE BELIEVE THAT THEREMARKS OF MR. CONTE DURING DEBATE ON THE CONFERENCE REPORT ARE CONSISTENT WITH REMARKS HE MADE ON THE FLOOR OF THE HOUSE ON THE AMENDMENTS DURING ITS ORIGINAL CONSIDERATION OF THE APPROPRIATION ACT INVOLVED.

FURTHER, CONTEMPORANEOUS WITH (I.E., ON THE SAME DAY), BUT AFTER THE PASSAGE BY THE CONGRESS OF THE BILL WHICH BECAME THE FOREIGN ASSISTANCE AND RELATED AGENCIES APPROPRIATIONS ACT, 1968, MR. LONG MADE THE FOLLOWING STATEMENT ON THE FLOOR OF THE HOUSE (113 CONG. REC. DECEMBER 15, 1967, H17209, H17210):

"MR. SPEAKER, TODAY THE CONGRESS HAS APPROVED THE FOREIGN AID APPROPRIATION BILL WHICH CONTAINS AMENDMENTS THAT PROHIBIT THE SALE OR GIFT OF SOPHISTICATED WEAPONS TO POOR NATIONS, AND WHICH CURTAILS ECONOMIC AID TO THESE COUNTRIES IF THEY BUY SUCH WEAPONS DESPITE THIS PROHIBITION.

"I HEREBY CALL ON AND RESPECTFULLY ASK SECRETARY OF STATE RUSK TO MAKE A PUBLIC DECLARATION THAT THE UNITED STATES WILL NOT GIVE OR SELL SUPERSONIC JETS TO LATIN AMERICAN NATIONS AND OTHER UNDERDEVELOPED COUNTRIES.

"IN A LETTER SOME TIME AGO SECRETARY RUSK INDICATED HIS FEELING THAT THE MAJORITY OF THE CONGRESS SUPPORTS JET SALES TO LATIN AMERICAN COUNTRIES. THIS HAS NOW BEEN SHOWN BY A ROLLCALL VOTE OF THE CONGRESS TO BE ERRONEOUS. BOTH THE LANGUAGE OF THE AMENDMENTS AND THEIR LEGISLATIVE HISTORY, AS DEVELOPED IN THE HOUSE DEBATE, MAKES IT CLEAR THAT ALL SOPHISTICATED WEAPONS SYSTEMS TO UNDERDEVELOPED COUNTRIES OTHER THAN THOSE SPECIFIED IN THIS BILL MUST STOP.

"THIS FOREIGN AID BILL IS INTENDED TO PUT AN END TO THE SQUANDERING OF AMERICAN MONEY ON MILITARY ELITES IN POOR COUNTRIES -- ELITES MORE INTERESTED IN FEEDING THEIR OWN PRIDE THAN THEIR HUNGRY FELLOW CITIZENS.

"NOW THAT THE CONGRESS HAS MADE THE PURPOSE CLEAR, IT IS UP TO THE STATE DEPARTMENT TO MAKE CLEAR ITS INTENT TO COMPLY WITH THIS DIRECTIVE.'

FINALLY, INSOFAR AS THE LEGISLATIVE HISTORY IS CONCERNED, NOTE THE FOLLOWING CONCERNING THE PROVISO FROM THE STATEMENT OF THE MANAGERS ON THE PART OF THE HOUSE ACCOMPANYING THE CONFERENCE REPORT (HOUSE REPORT NO. 1046) ON THE APPROPRIATION ACT INVOLVED (PAGE 5):

"AMENDMENT NO. 19 -- MILITARY ASSISTANCE: REPORTED IN TECHNICAL DISAGREEMENT. THE MANAGERS ON THE PART OF THE HOUSE WILL OFFER A MOTION TO INSERT LANGUAGE SIMILAR TO THAT PROPOSED BY THE HOUSE TOGETHER WITH A PROVISION THAT THE PRESIDENT MAY USE SUCH FUNDS WHEN HE DETERMINES THAT THE FURNISHING OF SOPHISTICATED WEAPONS TO UNDERDEVELOPED COUNTRIES IS VITAL TO THE NATIONAL SECURITY OF THE UNITED STATES AND REPORTS WITHIN 30 DAYS EACH DETERMINATION TO THE CONGRESS.' THE WORD ,FURNISH" IS BROAD IN SCOPE AND HAS BEEN HELD TO MEAN TO SUPPLY, PROVIDE, GIVE, OR AFFORD, WHETHER GRATUITOUSLY OR OTHERWISE. SEE TACKE V. HAUSER, 74 N.W. 2D 219 AND DRUCKER V. STATE BOARD OF MEDICAL EXAMINERS, 300 P.2D 197. OBVIOUSLY THEN "FURNISHING" WOULD INCLUDE THE SELLING OR THE GRANTING OF SOPHISTICATED WEAPONS TO UNDERDEVELOPED COUNTRIES.

WE HAVE NOT OVERLOOKED THE FACT THAT IN THE LEGISLATIVE HISTORY OF THE AMENDMENTS IN QUESTION THERE ARE A NUMBER OF OTHER STATEMENTS OR REMARKS IN ADDITION TO THOSE CITED OR QUOTED BY THE ASSISTANT SECRETARY THAT MIGHT BE CONSTRUED AS SUPPORTING THE POSITION THAT THE AMENDMENTS APPLY ONLY TO THE MILITARY SALES PROGRAM. IT WOULD BE REASONABLE TO CONCLUDE, HOWEVER, THAT THE REASON THAT IN THE LEGISLATIVE HISTORY OF THE AMENDMENTS INVOLVED, MUCH OF THE CONCERN IS DIRECTED AT THE SALES PROGRAM, AND MANY OF THE REFERENCES THEREIN ARE TO SUCH PROGRAM, IS BECAUSE PURSUANT TO THE REQUIREMENTS OF SECTION 506 (C) OF THE FOREIGN ASSISTANCE ACT OF 1961, AS AMENDED, THE GRANT MILITARY AID PROGRAM IS REQUIRED TO BE (AND HAS BEEN) PROGRESSIVELY REDUCED AND INCREASED EMPHASIS HAS BEEN PLACED ON SALES. THIS IS NOT TO SAY, HOWEVER, THAT THE CONGRESS (AS WELL AS THE SPONSORS OF THE AMENDMENTS) WERE NOT CONCERNED WITH UNDERDEVELOPED COUNTRIES OBTAINING SOPHISTICATED WEAPONS UNDER THE GRANT MILITARY ASSISTANCE PROGRAM. INDICATED ABOVE, IT WOULD HARDLY BE REASONABLE TO CONCLUDE, IN VIEW OF ONE OF THE MAJOR PURPOSES OF THE AMENDMENTS, THAT THE CONGRESS, WHILE PROHIBITING THE USE OF FUNDS TO FINANCE THE PURCHASE OF SUCH WEAPONS TO UNDERDEVELOPED COUNTRIES, WOULD HAVE NO OBJECTION TO THE FURNISHING OF SOPHISTICATED WEAPONS TO SUCH COUNTRIES UNDER THE MILITARY ASSISTANCE (GRANT) PROGRAM.

IN ANY EVENT, IN OUR OPINION THE TENOR OF THE LEGISLATIVE HISTORY AS A WHOLE, AND MORE PARTICULARLY THOSE PARTS WE CITE AND QUOTE ABOVE, MAKE IT EVIDENT THAT THE CONTE-LONG AMENDMENTS (OR AT LEAST THE FIRST AMENDMENT (THE PROVISO) QUOTED ABOVE) WERE AIMED AT THE "GIVING" (GRANT PROGRAM) OF SOPHISTICATED WEAPONS AS WELL AS THE "PURCHASE" (SALES PROGRAM) OF SUCH WEAPONS. FURTHER, THE SECOND QUOTED AMENDMENT (SECTION 119) DOES NOT REQUIRE THE CONCLUSION THAT THE PROVISO IS APPLICABLE ONLY TO PURCHASES OF WEAPONS. THE GRANTING OF SUCH WEAPONS UNDER THE MILITARY ASSISTANCE PROGRAM IS UNDER THE CONTROL OF THE UNITED STATES. HOWEVER, THE PURCHASE OF SOPHISTICATED WEAPONS BY UNDERDEVELOPED COUNTRIES FROM OTHER THAN THE UNITED STATES IS NOT SUBJECT TO THE SAME CONTROL. THUS, IT IS CLEAR THAT THE PRIMARY PURPOSE OF THE SECOND QUOTED AMENDMENT IS TO DISCOURAGE UNDERDEVELOPED COUNTRIES FROM PURCHASING SOPHISTICATED WEAPONS FROM OTHER COUNTRIES.

WE ASSUME FROM THE TENOR OF THE ASSISTANT SECRETARY'S LETTER THAT HE WOULD AGREE THAT IF IT BE CONCLUDED FROM THE LEGISLATIVE HISTORY OF THE APPROPRIATION ACT THAT THE CONGRESS INTENDED THAT THE CONTE-LONG AMENDMENTS APPLY TO GRANT MILITARY AID AS WELL AS PURCHASES OR SALES, THERE IS NO QUESTION BUT THAT THE CONGRESS USED LANGUAGE IN THE FIRST QUOTED AMENDMENT (THE PROVISO) WHICH COVERS THE MILITARY GRANT AID PROGRAM.

BE THAT AS IT MAY, THE PARAGRAPH CONTAINING THE FIRST QUOTED AMENDMENT (THE PROVISO) READS, IN PERTINENT PART, AS FOLLOWS:

"MILITARY ASSISTANCE: FOR EXPENSES AUTHORIZED BY SECTION 504 (A) OF THE FOREIGN ASSISTANCE ACT OF 1961, AS AMENDED, INCLUDING ADMINISTRATIVE EXPENSES AUTHORIZED BY SECTION 636 (G) (1) OF SUCH ACT, WHICH SHALL NOT EXCEED $21,400,000 FOR THE CURRENT FISCAL YEAR, AND PURCHASES OF PASSENGER MOTOR VEHICLES FOR REPLACEMENT ONLY FOR USE OUTSIDE THE UNITED STATES, $400,000,000: * * * PROVIDED FURTHER, THAT NONE OF THE FUNDS CONTAINED IN THIS PARAGRAPH AND NONE OF THE FUNDS CONTAINED IN THE MILITARY ASSISTANCE CREDIT SALES REVOLVING FUND SHALL BE USED TO FINANCE DIRECTLY OR INDIRECTLY THE PURCHASE OR ACQUISITION OF SOPHISTICATED WEAPONS SYSTEMS, SUCH AS MISSILE SYSTEMS AND JET AIRCRAFT FOR MILITARY PURPOSES, BY OR FOR ANY UNDERDEVELOPED COUNTRY OTHER THAN GREECE, TURKEY, IRAN, THE REPUBLIC OF CHINA, THE PHILIPPINES, AND KOREA UNLESS THE PRESIDENT DETERMINES THAT SUCH PURCHASE OR ACQUISITION OF WEAPONS SYSTEMS ARE VITAL TO THE NATIONAL SECURITY OF THE UNITED STATES AND REPORTS WITHIN 30 DAYS EACH SUCH DETERMINATION TO THE CONGRESS * * *.'

ASSUMING THAT THE LITERAL IMPORT OF THE WORDS USED IN THE ABOVE PROVISO (FIRST QUOTED AMENDMENT) IS CONSISTENT WITH THE LEGISLATIVE INTENT, THERE IS NO QUESTION BUT THAT THE PROVISO IS APPLICABLE TO GRANTS OF SOPHISTICATED WEAPONS TO UNDERDEVELOPED COUNTRIES (WITH CERTAIN EXCEPTIONS NOT PERTINENT HERE) UNDER THE MILITARY AID PROGRAM, AS WELL AS TO THE "PURCHASE" OR SALE OF SUCH WEAPONS. IN OTHER WORDS, IT IS CLEAR FROM THE LANGUAGE OF THE PROVISO THAT NONE OF THE FUNDS CONTAINED IN THE ABOVE- QUOTED PARAGRAPH AND NONE OF THE FUNDS CONTAINED IN THE MILITARY ASSISTANCE CREDIT SALES REVOLVING FUND MAYBE USED TO FINANCE DIRECTLY OR INDIRECTLY THE PURCHASE OR ACQUISITION OF SOPHISTICATED WEAPONS SYSTEMS BY OR FOR UNDERDEVELOPED COUNTRIES. THE PROVISO SPEAKS OF THE USE OF FUNDS CONTAINED IN EITHER "THIS PARAGRAPH" (I.E., THE APPROPRIATION LINE ITEM FOR "MILITARY ASSISTANCE"), OR IN THE "MILITARY ASSISTANCE CREDIT SALES REVOLVING FUND," TO FINANCE DIRECTLY OR INDIRECTLY THE "PURCHASE" OR "ACQUISITION" OF SOPHISTICATED WEAPONS SYSTEMS ,BY" OR "FOR" UNDERDEVELOPED COUNTRIES. AS INDICATED BY THE ASSISTANT SECRETARY, THE WORD ,ACQUISITION" IS MUCH BROADER IN SCOPE THAN THE WORD "PURCHASE.' "PURCHASE," IS USED GENERALLY TO INDICATE THE SALE OF AN ARTICLE (IN OTHER WORDS THAT THE ARTICLE WAS BOUGHT). "ACQUISITION" GENERALLY IS CONSIDERED TO MEAN OBTAINING AN ARTICLE BY ANY MEANS WHATSOEVER. OF COURSE, THERE IS NOTHING IN THE PROVISO ITSELF TO INDICATE THAT THE WORD ACQUISITION WAS USED OUT OF AN OVER-ABUNDANCE OF CAUTION. MOREOVER, IT IS AN ELEMENTARY RULE OF STATUTORY CONSTRUCTION THAT EFFECT MUST BE GIVEN, IF POSSIBLE TO EVERY WORD, CLAUSE AND SENTENCE OF A STATUTE. SECTION 4705, SUTHERLAND, STATUTORY CONSTRUCTION 3RD EDITION. NOR DOES READING SUCH REFERENCE TO MILITARY ASSISTANCE FUNDS IN THE CONTEXT OF SECTION 524 (A) OF THE FOREIGN ASSISTANCE ACT OF 1961, AS AMENDED BY PUBLIC LAW 90-137, REQUIRE THE CONCLUSION THAT THE CONTE-LONG AMENDMENTS (OR AT LEAST THE PROVISO) DO NOT APPLY TO GRANT MILITARY AID OR ASSISTANCE. FURTHER, WE SEE NO CLEAR CUT CONNECTION BETWEEN STATEMENTS MADE EXPLAINING AN AMENDMENT TO SECTION 16 (C) OF THE INTER-AMERICAN DEVELOPMENT BANK ACT AND THE LANGUAGE USED IN THE AMENDMENTS INVOLVED HERE. ALSO, WE QUESTION WHETHER THE TERMS USED IN OTHER STATUTES TO REFER TO MILITARY GRANT AID MUST BE CONSIDERED "TERMS OF ART," AND HAVE BEEN SO CONSIDERED BY THE CONGRESS. NOR DO WE AGREE THAT BECAUSE THE CONGRESS DID NOT EMPLOY IN THIS STATUTE THE SAME LANGUAGE IT USED IN AN EARLIER STATUTE TO REFER TO GRANT AID, WE MUST CONCLUDE THAT THE CONGRESS DID NOT INTEND THE LANGUAGE USED IN THIS STATUTE TO APPLY TO GRANT AID, SINCE THE LANGUAGE USED IS BROAD ENOUGH TO ENCOMPASS GRANT AID, AND THE LEGISLATIVE HISTORY DISCLOSES THAT IT WAS SO INTENDED.

AS TO WHETHER THE WORD "FINANCE" IS A VERB NOT USED BY THE CONGRESS IN THE CONTEXT OF FURNISHING DEFENSE ARTICLES AND DEFENSE SERVICES ON A GRANT BASIS, NOTE THE LAST SENTENCE ON PAGE 18 OF HOUSE REPORT NO. 891 (ON H.R. 13893) WHICH APPEARS UNDER THE HEADING "MILITARY ASSISTANCE" AND READS AS FOLLOWS:

"THE BUDGET PROGRAM OF $688.7 MILLION IS TO FINANCE A GRANT MATERIEL AND/OR TRAINING PROGRAM IN 32 COUNTRIES AND A TRAINING-ONLY PROGRAM IN 18 COUNTRIES, AS FOLLOWS * * *.'

IN SUMMARY, CONSIDERING THE OVERALL LEGISLATIVE HISTORY OF THE AMENDMENTS IN QUESTION, AS WELL AS THE PURPOSES OF THE AMENDMENTS, TOGETHER WITH THE LANGUAGE USED IN THE PROVISO ITSELF, IT IS OUR VIEW THAT THERE IS INCLUDED WITHIN THE SCOPE OF THE PROVISO THE GRANT AID MILITARY ASSISTANCE PROGRAM AS WELL AS THE FOREIGN MILITARY SALES PROGRAM. THEREFORE, FUNDS CONTAINED IN THE APPROPRIATION PARAGRAPH IN QUESTION OR IN THE MILITARY ASSISTANCE CREDIT SALES REVOLVING FUND MAY NOT BE USED TO FURNISH SOPHISTICATED WEAPONS SYSTEMS TO UNDERDEVELOPED COUNTRIES (WITH CERTAIN EXCEPTIONS NOT PERTINENT HERE) EITHER BY GRANT OR SALE UNLESS THE PRESIDENT MAKES THE DETERMINATION REQUIRED BY THE PROVISO.