B-226515, MAR 26, 1987

B-226515, MAR 26, 1987

MISCELLANEOUS TOPICS - NATIONAL SECURITY/INTERNATIONAL AFFAIRS - FOREIGN AID PROGRAMS - FOREIGN COUNTRIES - PROHIBITION - EXECUTIVE POWERS DIGEST: THE PRESIDENT'S REMOVAL OF A COUNTRY FROM FOREIGN ASSISTANCE ACT PROHIBITION AGAINST ASSISTANCE TO COMMUNIST COUNTRIES FOR AN INDEFINITE LENGTH OF TIME IS AUTHORIZED BY 22 U.S.C. SEC. 2370(F)(2). A LITERAL READING OF THE LANGUAGE COMPRISING THIS PROVISION SUPPORTS A BROAD DELEGATION OF AUTHORITY TO THE PRESIDENT AND ITS LEGISLATIVE HISTORY INDICATES CONGRESSIONAL INTENT THAT THE PRESIDENT HAVE BROAD DISCRETION IN DETERMINING HOW LONG A PARTICULAR COUNTRY SHOULD BE REMOVED FROM THE PROHIBITION.

THE HONORABLE WILLIAM S. BROOMFIELD:

BY LETTER DATED MARCH 6, 1987, YOU REQUESTED OUR LEGAL OPINION INTERPRETING SECTION 620(F)(2) OF THE FOREIGN ASSISTANCE ACT OF 1961, 22 U.S.C. SEC. 2370(F)(2). SPECIFICALLY, YOU ASKED WHETHER THIS PROVISION AUTHORIZES THE PRESIDENT TO REMOVE A COUNTRY FROM THE PROHIBITION AGAINST ASSISTANCE TO SPECIFIED COMMUNIST COUNTRIES FOR AN INDEFINITE PERIOD AND, IN THAT REGARD, WHETHER IT AUTHORIZES THE FOREIGN ASSISTANCE DETERMINATION OF AUGUST 5, 1986 REMOVING YUGOSLAVIA FROM THE PROHIBITION FOR AN INDEFINITE PERIOD. /1/SEE 51 FED.REG. 29622 (1986). AS DISCUSSED IN MORE DETAIL BELOW, IT IS OUR OPINION THAT SECTION 620(F)(2) OF THE FOREIGN ASSISTANCE ACT OF 1961 PROVIDES SUCH LEGAL AUTHORITY.

BACKGROUND

SECTION 620(F)(1) OF THE FOREIGN ASSISTANCE ACT OF 1961, AS AMENDED, PROHIBITS ASSISTANCE TO SPECIFIED COMMUNIST COUNTRIES, AS FOLLOWS:

"(1) NO ASSISTANCE SHALL BE FURNISHED UNDER THIS CHAPTER *** TO ANY COMMUNIST COUNTRY. *** FOR THE PURPOSES OF THIS SUBSECTION, THE PHRASE 'COMMUNIST COUNTRY' INCLUDES SPECIFICALLY, BUT IS NOT LIMITED TO, THE FOLLOWING COUNTRIES:

"SOCIALIST FEDERAL REPUBLIC OF YUGOSLAVIA

22 U.S.C. SEC. 2370(F)(1)

SECTION 620(F)(2) OF THE ACT, AS ADDED BY SECTION 1202 OF THE INTERNATIONAL SECURITY AND DEVELOPMENT COOPERATION ACT OF 1985 (PUBLIC LAW 99-83, SEC. 1202, 99 STAT. 276 (1985)), AUTHORIZES THE PRESIDENT TO REMOVE A COUNTRY FROM THIS PROHIBITION, AS FOLLOWS:

"(2) NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH (1) OF THIS SUBSECTION, THE PRESIDENT MAY REMOVE A COUNTRY, FOR SUCH PERIOD AS THE PRESIDENT DETERMINES, FROM THE APPLICATION OF THIS SUBSECTION, AND OTHER PROVISIONS WHICH REFERENCE THIS SUBSECTION, IF THE PRESIDENT DETERMINES AND REPORTS TO THE CONGRESS THAT SUCH ACTION IS IMPORTANT TO THE NATIONAL INTEREST OF THE UNITED STATES." ***

CITING THIS PROVISION, ON MARCH 10, 1986 THE SECRETARY OF STATE, ON A PROPER DELEGATION OF AUTHORITY FROM THE PRESIDENT, /2/ NOTIFIED THE CONGRESS OF HIS INTENT TO REMOVE YUGOSLAVIA FROM THE PROHIBITION FOR AN INDEFINITE PERIOD. ON AUGUST 5, 1986, THE SECRETARY ISSUED A FOREIGN ASSISTANCE DETERMINATION TO THAT EFFECT. 51 FED.REG. 29622 (1986).

ANALYSIS

THE LANGUAGE COMPRISING SECTION 602(F)(2) OF THE ACT WAS ADDED BY SECTION 1202 OF THE INTERNATIONAL SECURITY AND DEVELOPMENT COOPERATION ACT OF 1985. A LITERAL READING OF THIS LANGUAGE SUPPORTS A BROAD DELEGATION OF AUTHORITY TO THE PRESIDENT WHICH WOULD NOT APPEAR TO RESTRICT THE TIME OF REMOVAL TO A DEFINITE PERIOD. THE ONLY AVAILABLE LEGISLATIVE HISTORY REGARDING THIS PROVISION INDICATES THAT IT WAS REQUESTED BY THE PRESIDENT AND IS INTENDED TO PROVIDE HIM WITH MORE FLEXIBILITY IN IMPLEMENTING FOREIGN POLICY, THUS LENDING SUPPORT TO SUCH A BROAD, LITERAL READING. THUS, THE HOUSE COMMITTEE ON FOREIGN AFFAIRS INDICATED:

"THE AMENDMENT, WHICH WAS REQUESTED BY THE PRESIDENT, ADDS A NEW PARAGRAPH, SECTION 620(F)(2), WHICH AUTHORIZES THE PRESIDENT TO REMOVE ANY COUNTRY FROM APPLICATION OF THE EXISTING SUBSECTION 620(F), WHEN HE DETERMINES AND REPORTS TO CONGRESS THAT SUCH ACTION IS IMPORTANT TO THE NATIONAL INTEREST OF THE UNITED STATES. THE PRESIDENT IS TO DETERMINE WHEN A COUNTRY IS REMOVED FROM APPLICATION OF THE SECTION 620(F)(1), AND HE HAS AUTHORITY TO DETERMINE WHEN SUCH REMOVAL ENDS.

"THE COMMITTEE PROVISION RECOGNIZES THE NEED TO HELP PROVIDE FLEXIBILITY FOR IMPLEMENTATION OF FOREIGN POLICY IN SITUATIONS WHERE SUCH ACTION WOULD BE IMPORTANT TO THE NATIONAL INTEREST OF THE UNITED STATES. ***" H.R. REP. NO. 39, 99TH CONG., 1ST SESS. 85 (1985).

THE LANGUAGE WE HAVE EMPHASIZED INDICATES CONGRESSIONAL INTENT THAT THE PRESIDENT HAVE BROAD DISCRETION IN DETERMINING HOW LONG A PARTICULAR COUNTRY SHOULD BE REMOVED FROM THE APPLICATION OF THE SECTION'S PROHIBITIONS. WE SEE NO INDICATION THAT THE CONGRESS INTENDED THAT THE PRESIDENT MUST INDICATE BOTH THE BEGINNING AND END OF THE PERIOD OF REMOVAL AT THE TIME OF HIS INITIAL DETERMINATION.

THEREFORE, WE CONCLUDE THAT SECTION 620(F)(2) OF THE FOREIGN ASSISTANCE ACT OF 1961 AUTHORIZES THE REMOVAL OF THE PROHIBITION AGAINST A COUNTRY FOR AN INDEFINITE PERIOD AND THAT FOREIGN ASSISTANCE DETERMINATIONS TO THAT EFFECT, WHICH ARE OTHERWISE IN COMPLIANCE WITH SECTION 620(F)(2), ARE VALID.

AS AGREED TO BY DAVE ADDINGTON OF THE COMMITTEE STAFF, THIS OPINION WILL BE MADE AVAILABLE TO THE PUBLIC 5 DAYS FROM TODAY.

/1/ THE FOREIGN ASSISTANCE DETERMINATION OF DECEMBER 11, 1985 REMOVED CHINA AND TIBET FROM THIS PROHIBITION FOR AN INDEFINITE PERIOD, CITING IDENTICAL AUTHORITY. SEE 51 FED.REG. 1890 (1986). TO OUR KNOWLEDGE, CONGRESS RAISED NO FORMAL OBJECTION AT THAT TIME.

/2/ SECTION 1-201(11) OF EXECUTIVE ORDER 12163 SPECIFICALLY DELEGATES TO THE SECRETARY OF STATE ALL FUNCTIONS CONFERRED UPON THE PRESIDENT BY SECTION 620(F) OF THE FOREIGN ASSISTANCE ACT OF 1961.