B-164264.OM, FEB 20, 1981

B-164264.OM, FEB 20, 1981

SUBJECT: MANAGEMENT OF THE SECURITY ASSISTANCE PROGRAM OVERSEAS (FILE B-164264, CODE 463750)

TEAM LEADER, ID - LEE FURR, ASSISTANT GENERAL COUNSEL - HENRY R. WRAY:

THIS IS IN RESPONSE TO YOUR MEMORANDUM OF OCTOBER 6, 1980, CONCERNING THE ROLE OF UNITED STATES SECURITY ASSISTANCE OFFICES (SAO'S) OVERSEAS.

QUESTION 1: ARE THE SECURITY ASSISTANCE OFFICES (SAO'S) ASSIGNED PURSUANT TO 22 U.S.C. SEC. 2321IB), AUTHORIZED TO PROVIDE LIMITED ADVISORY ASSISTANCE TO HOST COUNTRIES, OR ARE THEY RESTRICTED TO THE PERFORMANCE OF THE FOUR PRIMARY FUNCTIONS (I.E., LOGISTICS MANAGEMENT, TRANSPORTATION, FISCAL MANAGEMENT, AND CONTRACT ADMINISTRATION OF COUNTRY PROGRAMS) SET FORTH IN PARAGRAPH (1) OF THAT SUBSECTION?

ANSWER: SAO'S ASSIGNED PURSUANT TO THAT SUBSECTION ARE NOT RESTRICTED TO PERFORMANCE OF THE FOUR PRIMARY FUNCTIONS, AND MAY PERFORM SOME ADVISORY ACTIVITIES. THE STATUTE, HOWEVER, DOES NOT PERMIT PROVISION OF SUCH ASSISTANCE ON A FULL-TIME BASIS.

QUESTION 2: ARE MANAGEMENT TEAMS ASSIGNED TO PERFORM "ACCOUNTING AND OTHER MANAGEMENT FUNCTIONS" PURSUANT TO 22 U.S.C. SEC. 2321IC) AUTHORIZED TO PROVIDE LIMITED SECURITY ADVISORY ASSISTANCE?

ANSWER: YES.

QUESTION 3: DOES 22 U.S.C. SEC. 2321IB) OR (C) AUTHORIZE SAO'S TO PERFORM NON-SECURITY RELATED FUNCTIONS?

ANSWER: SUBSECTIONS (B) AND (C) OF 22 U.S.C. SEC. 2321I NEITHER AUTHORIZE THE SECURITY ASSISTANCE OFFICES TO PERFORM NON-SECURITY RELATED FUNCTIONS, NOR PROHIBIT THE PERFORMANCE BY SAO'S OF SUCH FUNCTIONS IN AN ANCILLARY CAPACITY.

ATTACHMENT

MANAGEMENT OF THE SECURITY ASSISTANCE PROGRAM OVERSEAS

DIGESTS:

1. SECURITY ASSISTANCE OFFICES ASSIGNED PURSUANT TO 22 U.S.C. SEC. 2321IB) ARE NOT RESTRICTED TO THE FOUR PRIMARY FUNCTIONS SET FORTH IN PARAGRAPH (1) OF THAT SUBSECTION (I.E., LOGISTICS MANAGEMENT, TRANSPORTATION, FISCAL MANAGEMENT, AND CONTRACT ADMINISTRATION OF COUNTRY PROGRAMS), BUT MAY ALSO PROVIDE LIMITED ADVISORY ASSISTANCE TO HOST COUNTRIES.

2. MANAGEMENT TEAMS ASSIGNED UNDER 22 U.S.C. SEC. 2321IC) ARE PERMITTED TO ENGAGE IN SOME SECURITY ASSISTANCE ADVISORY ACTIVITIES.

3. 22 U.S.C. SEC. 2321IB) AND (C) NEITHER AUTHORIZE SECURITY ASSISTANCE OFFICES TO PERFORM NON-SECURITY RELATED FUNCTIONS NOR PROHIBIT PERFORMANCE OF SUCH FUNCTIONS BY SAO'S IN AN ANCILLARY CAPACITY.

QUESTION 1: ARE THE SECURITY ASSISTANCE OFFICES (SAO'S) ASSIGNED PURSUANT TO 22 U.S.C. SEC. 2321IB), AUTHORIZED TO PROVIDE LIMITED ADVISORY ASSISTANCE TO HOST COUNTRIES, OR ARE THEY RESTRICTED TO THE PERFORMANCE OF THE FOUR PRIMARY FUNCTIONS (I.E., LOGISTICS MANAGEMENT, TRANSPORTATION, FISCAL MANAGEMENT, AND CONTRACT ADMINISTRATION OF COUNTRY PROGRAMS) SET FORTH IN PARAGRAPH (1) OF THAT SUBSECTION?

ANSWER: SAOS ASSIGNED PURSUANT TO THAT SUBSECTION ARE NOT RESTRICTED TO THE FOUR PRIMARY FUNCTIONS, AND MAY PERFORM SOME ADVISORY ACTIVITIES.

SUBSECTION 2321IA) OF TITLE 22, U.S.C. MANDATES THE TERMINATION OF U. S. MILITARY ASSISTANCE ADVISORY GROUPS (MAAG'S) IN THE ABSENCE OF EXPLICIT CONGRESSIONAL AUTHORIZATION:

"NO MILITARY ASSISTANCE ADVISORY GROUP, MILITARY MISSION, OR OTHER ORGANIZATION OF UNITED STATES MILITARY PERSONNEL PERFORMING SIMILAR MILITARY ADVISORY FUNCTIONS UNDER THIS CHAPTER OR THE ARMS EXPORT CONTROL ACT MAY OPERATE IN ANY FOREIGN COUNTRY UNLESS SPECIFICALLY AUTHORIZED BY THE CONGRESS."

THE SUBSECTION GOES ON TO NOTE THAT THIS PROHIBITION DOES NOT APPLY TO REGULAR UNITS OF THE U. S. MILITARY ENGAGED IN ROUTINE FUNCTIONS TO BRING ABOUT THE STANDARDIZATION OF MILITARY OPERATIONS AND PROCEDURES BETWEEN THE UNITED STATES AND ITS DEFENSE TREATY ALLIES, INCLUDING NORTH ATLANTIC TREATY ALLIANCE (NATO) MEMBERS. SUBSECTION (B)(1) OF 22 U.S.C. SEC. 2321I SPECIFICALLY AUTHORIZES THE CONTINUATION OF MILITARY ASSISTANCE ADVISORY GROUPS IN 13 COUNTRIES:

"(B)(1) IN ORDER TO CARRY OUT HIS RESPONSIBILITIES FOR THE MANAGEMENT DURING THE FISCAL YEAR 1980 OF INTERNATIONAL SECURITY ASSISTANCE PROGRAMS CONDUCTED UNDER THIS PART, UNDER PART V OF THIS SUBCHAPTER, OR UNDER THE ARMS EXPORT CONTROL ACT, THE PRESIDENT MAY ASSIGN MEMBERS OF THE ARMED FORCES OF THE UNITED STATES TO PERFORM NECESSARY FUNCTIONS WITH RESPECT TO SUCH PROGRAMS IN PORTUGAL, SPAIN, JORDAN, PHILIPPINES AND IN THE REPUBLIC OF KOREA, PANAMA, GREECE, TURKEY, INDONESIA, THAILAND, MOROCCO, EGYPT, AND SAUDI ARABIA. MEMBERS OF THE ARMED FORCES ASSIGNED UNDER THIS SUBSECTION SHALL HAVE AS THEIR PRIMARY FUNCTIONS LOGISTICS MANAGEMENT, TRANSPORTATION, FISCAL MANAGEMENT, AND CONTRACT ADMINISTRATION OF COUNTRY PROGRAMS. IT IS THE SENSE OF THE CONGRESS THAT ADVISORY AND TRAINING ASSISTANCE IN THE COUNTRIES SPECIFIED ABOVE SHALL PRIMARILY BE PROVIDED BY PERSONNEL WHO ARE NOT ASSIGNED UNDER THIS SUBSECTION AND WHO ARE DETAILED FOR LIMITED PERIODS TO PERFORM SPECIFIC TASKS."

HOUSE REPORT NO. 95-274 (1977) STATES THAT "SECTION 515(B) 22 U.S.C. SEC. 2321IB) CONSTITUTES AN EXCEPTION CLAUSE AND AUTHORIZES 10 MAAG'S FOR A 1- YEAR PERIOD IN GREECE, PORTUGAL, SPAIN, TURKEY, JORDAN, INDONESIA, PHILIPPINES, THAILAND, KOREA, AND PANAMA." 1977 U.S.C. CONG. & AD. NEWS 987. (THE LIST OF COUNTRIES IN WHICH MAAGS ARE AUTHORIZED HAS BEEN ALTERED SLIGHTLY IN SUBSEQUENT AMENDMENTS TO SUBSECTION (B), AND THE AUTHORIZATION PERIOD HAS BEEN EXTENDED EACH YEAR TO COVER THE FOLLOWING FISCAL YEAR.)

THE FACT THAT THESE SAO'S CONSTITUTE EXCEPTIONS TO THE PROHIBITION AGAINST MILITARY ADVISORY GROUPS, WHOSE FUNCTION WAS TO PROVIDE MILITARY ADVISORY ASSISTANCE, COMBINED WITH THE DESCRIPTION OF THE FOUR FUNCTIONS AS "PRIMARY" RATHER THAN "EXCLUSIVE" OR A SIMILAR TERM, CAUSES US TO CONCLUDE THAT SAO'S MAY PERFORM SOME FUNCTIONS OUTSIDE OF THE FOUR PRIMARY FUNCTIONS SPECIFIED IN THE STATUTE. AS A MATTER OF LEGISLATIVE DRAFTMANSHIP, IT WOULD HAVE BEEN HIGHLY IMPRECISE TO DESCRIBE THE FOUR MANAGEMENT FUNCTIONS AS PRIMARY, IF THEY WERE INDEED THE ONLY FOUR FUNCTIONS TO BE PERFORMED BY THE OFFICES. SIMILARLY, THE USE OF THE ADVERB "PRIMARILY" IN THE FINAL SENTENCE OF THE SUBSECTION - I.E., "IT IS THE SENSE OF THE CONGRESS THAT ADVISORY AND TRAINING ASSISTANCE IN THE COUNTRIES SPECIFIED ABOVE SHALL PRIMARILY BE PROVIDED BY PERSONNEL WHO ARE NOT ASSIGNED UNDER THIS SUBSECTION AND WHO ARE DETAILED FOR LIMITED PERIODS TO PERFORM SPECIFIC TASKS" - STRONGLY SUGGESTS THAT SOME ADVISORY AND TRAINING ASSISTANCE WILL BE PROVIDED BY PERSONNEL ASSIGNED UNDER THE SUBSECTION.

ACCORDINGLY, IT WOULD APPEAR THAT THE SECURITY ASSISTANCE OFFICES IN THE COUNTRIES SPECIFIED IN SUBSECTION (B)(1) ARE NOT RESTRICTED TO THE FOUR PRIMARY FUNCTIONS, AND MAY PERFORM SOME MILITARY ADVISORY ACTIVITIES. THE LEGISLATIVE HISTORY SHEDS NO LIGHT ON THE QUESTION OF HOW MUCH AN SAO MAY DEVOTE TO THE LATTER, AS OPPOSED TO THE FORMER, ACTIVITIES. HOWEVER, THE STATUTE, AS A MINIMUM, WOULD PRECLUDE SUCH ASSISTANCE ON A FULL-TIME BASIS.

QUESTION 2: ARE MANAGEMENT TEAMS ASSIGNED TO PERFORM "ACCOUNTING AND OTHER MANAGEMENT FUNCTIONS" PURSUANT TO 22 U.S.C. SEC. 2321IC) AUTHORIZED TO PROVIDE LIMITED SECURITY ADVISORY ASSISTANCE?

ANSWER: YES. MANAGEMENT TEAMS ASSIGNED UNDER 22 U.S.C. SEC. 2321IC) ARE PERMITTED TO ENGAGE IN SOME SECURITY ASSISTANCE ADVISORY ACTIVITIES. SUBSECTION (C) STATES:

"THE PRESIDENT MAY ASSIGN NOT TO EXCEED THREE MEMBERS OF THE ARMED FORCES TO ANY COUNTRY NOT SPECIFIED IN SUBSECTION (B)(1) OF THIS SECTION TO PERFORM ACCOUNTING AND OTHER MANAGEMENT FUNCTIONS WITH RESPECT TO INTERNATIONAL SECURITY ASSISTANCE PROGRAMS CONDUCTED UNDER THIS PART, PART V OF THIS SUBCHAPTER, OR UNDER THE ARMS EXPORT CONTROL ACT, EXCEPT THAT NOT TO EXCEED THREE ADDITIONAL MEMBERS OF THE ARMED FORCES MAY BE ASSIGNED TO A COUNTRY TO PERFORM SUCH FUNCTIONS WHEN SPECIFICALLY REQUESTED BY THE CHIEF OF THE DIPLOMATIC MISSION AS NECESSARY TO THE EFFICIENT OPERATION OF THE MISSION."

THE ORIGINAL HOUSE BILL HAD AUTHORIZED THE PERFORMANCE OF "ACCOUNTING AND SIMILAR MANAGEMENT FUNCTIONS," AND HOUSE REPORT NO. 95-274 (1977) CONSTRUED THAT LANGUAGE AS AUTHORIZING THE ASSIGNMENT OF U. S. MILITARY PERSONNEL "IN OTHER THAN MAAG COUNTRIES TO PERFORM ACCOUNTING, LOGISTICS, MONITORING AND SIMILAR OVERSIGHT MANAGERIAL FUNCTIONS OF OUR COUNTRY'S SECURITY ASSISTANCE PROGRAMS." THE HOUSE REPORT FIRMLY STATED THAT TEAMS ASSIGNED UNDER THIS SUBSECTION "WERE NOT AUTHORIZED TO PERFORM MILITARY TRAINING AND ADVISORY FUNCTIONS." 1977 U.S.C. CONG. & AD. NEWS 987. HOWEVER, THE CONFERENCE COMMITTEE AMENDED THE HOUSE BILL BY SUBSTITUTING "ACCOUNTING AND OTHER MANAGEMENT FUNCTIONS" FOR "ACCOUNTING AND SIMILAR MANAGEMENT FUNCTIONS," AND HOUSE CONFERENCE REPORT NO. 95-503 (1977) INTERPRETED THE NEW TERMINOLOGY AS INCLUDING "LIMITED SECURITY ASSISTANCE AND ADVISORY SERVICES." 1977 U.S.C. CONG. AND AD. NEWS 1015.

QUESTION 3: DOES 22 U.S.C. SEC. 2321IB) OR (C) AUTHORIZE SAO'S TO PERFORM NON-SECURITY RELATED FUNCTIONS?

ANSWER: SUBSECTIONS (B) AND (C) OF 22 U.S.C. SEC. 2321I NEITHER AUTHORIZE THE SECURITY ASSISTANCE OFFICES TO PERFORM NON-SECURITY RELATED FUNCTIONS, NOR PROHIBIT THE PERFORMANCE BY SAO'S OF SUCH FUNCTIONS IN AN ANCILLARY CAPACITY.

SPECIAL STUDIES AND ANALYSIS