B-213137.3, JUN 25, 1985

B-213137.3, JUN 25, 1985

APPROPRIATIONS - DEFENSE DEPARTMENT - HONDURAS MILITARY EXERCISES - OPERATION AND MAINTENANCE FUNDS - AVAILABILITY DIGEST: LETTER PROVIDES GAO COMMENTS ON DOD RESPONSE TO QUESTIONS ASKED BY REPRESENTATIVES ADDABBO AND MINETA ON COMPLIANCE WITH FUNDING RESTRICTIONS ON ASSISTANCE TO MILITARY OR PARAMILITARY FORCES IN NICARAGUA. GAO DISAGREES WITH DOD RESPONSE INDICATING THAT COMPLIANCE WITH STATUTORY RESTRICTIONS IS ONLY WITHIN PURVIEW OF CIA. GAO ALSO CONCLUDES THAT FACTUAL INFORMATION CONCERNING USE OF FACILITIES IMPROVED BY DOD BUT UNDER HONDURAN CONTROL MAY STILL BE RELEVANT TO ISSUE OF DOD'S COMPLIANCE WITH STATUTORY RESTRICTIONS.

THE HONORABLE JOSEPH P. ADDABBO

HOUSE OF REPRESENTATIVES:

BY LETTER DATED JANUARY 29, 1985, YOU AND REPRESENTATIVE MINETA REQUESTED THAT GAO REPORT TO THE CONGRESS ON THE DEPARTMENT OF DEFENSE'S (DOD) COMPLIANCE WITH FUNDING RESTRICTIONS ON THE SUPPORT OF MILITARY OR PARAMILITARY ACTIVITIES IN NICARAGUA, SPECIFICALLY IN CONNECTION WITH U.S. MILITARY EXERCISES IN HONDURAS. ENCLOSED WITH YOUR REQUEST WAS A COPY OF A LETTER TO SECRETARY WEINBERGER POSING SPECIFIC QUESTIONS RELATING TO THIS ISSUE. SECRETARY WEINBERGER REPLIED TO THOSE QUESTIONS BY LETTER DATED FEBRUARY 21, 1985.

BASED UPON OUR DISCUSSIONS WITH YOUR STAFF, WE HAVE AGREED TO RESPOND TO YOUR REQUEST BY PROVIDING OUR COMMENTS ON SECRETARY WEINBERGER'S REPLY TO YOUR LIST OF QUESTIONS. BECAUSE YOUR STAFF INDICATED A PREFERENCE FOR AN UNCLASSIFIED RESPONSE, WE HAVE LIMITED OUR COMMENTS TO THE UNCLASSIFIED PARAGRAPHS OF SECRETARY WEINBERGER'S LETTER OF FEBRUARY 21, 1985.

YOUR QUESTIONS, A DESCRIPTION OF ANY UNCLASSIFIED PORTION OF DOD'S RESPONSE, AND OUR OWN COMMENTS ARE SET OUT BELOW:

QUESTION 1. "WHAT EXPENDITURES HAVE BEEN MADE DURING FISCAL 1984 TO IMPROVE MILITARY FACILITIES IN HONDURAS?"

THE DEFENSE DEPARTMENT'S RESPONSE (UNCLASSIFIED) LISTS IMPROVEMENTS MADE AT EIGHT LOCATIONS IN HONDURAS, AND SPECIFIES COSTS FOR EACH PROJECT.

THIS OFFICE PLANS TO REVIEW DOD'S COST COMPUTATIONS FOR EXERCISE CONSTRUCTION PROJECTS IN THE NEAR FUTURE, IN CONNECTION WITH A FOLLOW UP TO OUR DECISION 63 COMP.GEN. 422 (1984) (B-213137, JUNE 22, 1984).

QUESTION 2. "WERE ANY OF THESE EXPENDITURES COUNTED WITHIN THE ADMINISTRATION'S RECKONING OF EXPENDITURES SUBJECT TO THE $24 MILLION CEILING?"

PUBLIC LAW 98-212 (1983) CONTAINS A $24 MILLION CEILING ON THE PROVISION OF SUPPORT OF MILITARY OR PARAMILITARY OPERATIONS IN NICARAGUA. THE DEFENSE DEPARTMENT, IN THE UNCLASSIFIED PORTION OF ITS RESPONSE, EMPHASIZES THAT ITS EXPENDITURES IN HONDURAS RELATED TO THE PERFORMANCE OF ITS OWN MISSION REQUIREMENTS. IT STATES THAT "COMPLIANCE WITH THE FUNDING LIMITATION CONTAINED IN SECTION 775 OF PUBLIC LAW 98-212 FELL WITHIN THE PURVIEW OF THE DIRECTOR OF THE CENTRAL INTELLIGENCE AGENCY."

THIS OFFICE WOULD NOT AGREE WITH DOD'S STATEMENT THAT COMPLIANCE WITH SECTION 775 FELL WITHIN THE PURVIEW OF THE CIA, TO THE EXTENT THAT THAT STATEMENT IMPLIES THAT DOD IS NOT EQUALLY RESPONSIBLE FOR ENSURING THAT THE RESTRICTIONS OF SECTION 775 ARE FOLLOWED.

SECTION 775 OF PUBLIC LAW 98-212 PROVIDED AS FOLLOWS:

"DURING FISCAL YEAR 1984, NOT MORE THAN $24,000,000 OF THE FUNDS AVAILABLE TO THE CENTRAL INTELLIGENCE AGENCY, THE DEPARTMENT OF DEFENSE, OR ANY OTHER AGENCY OR ENTITY OF THE UNITED STATES INVOLVED IN INTELLIGENCE ACTIVITIES MAY BE OBLIGATED OR EXPENDED FOR THE PURPOSE OR WHICH WOULD HAVE THE EFFECT OF SUPPORTING, DIRECTLY OR INDIRECTLY, MILITARY OR PARAMILITARY OPERATIONS IN NICARAGUA BY ANY NATION, GROUP, ORGANIZATION, MOVEMENT, OR INDIVIDUAL." PUB.L. NO. 98-212, SECTION 775, 97 STAT. 1421, 1452 (1983).

THE PROVISION WAS ADOPTED AS A CONFERENCE COMMITTEE COMPROMISE AMENDMENT TO THE FISCAL YEAR 1984 DEFENSE DEPARTMENT APPROPRIATIONS BILL. SEE H.R. REP. NO. 567, 98TH CONG. 1ST SESS. 74 (1983). DURING CONSIDERATION ON THE HOUSE FLOOR PRIOR TO ITS ADOPTION, IT WAS DESCRIBED AS AN "ABSOLUTE CAP" ON ASSISTANCE. SEE 129 CONG.REC. H10492 (DAILY ED. NOV. 18, 1983) (REMARKS OF REP. MILLER). THE REFERENCE TO INDIRECT SUPPORT WAS ALSO INTENDED TO PRECLUDE THE ROUTING OF FUNDS THROUGH THIRD COUNTRIES. ID.

CONTRARY TO DOD'S STATEMENT THAT COMPLIANCE WITH THIS RESTRICTION FELL WITHIN THE PURVIEW OF THE CIA, THE LANGUAGE OF SECTION 775 CLEARLY APPLIES, BY ITS OWN TERMS, TO ANY USE OF FUNDS BY THE DEFENSE DEPARTMENT AS WELL, IF SUCH EXPENDITURES WOULD HAVE THE EFFECT OF PROVIDING DIRECT OR INDIRECT SUPPORT OF MILITARY OR PARAMILITARY OPERATIONS IN NICARAGUA. THE RESTRICTION WOULD NOT ONLY APPLY TO FUNDS SPECIFICALLY EXPENDED FOR THE PURPOSE OF AIDING PARAMILITARY FORCES IN NICARAGUA, BUT WOULD APPLY EQUALLY TO FUNDS EXPENDED BY DOD FOR THE PERFORMANCE OF ITS OWN MISSING REQUIREMENTS IF THOSE EXPENDITURES HAD THE EFFECT OF SUPPORTING PARAMILITARY OPERATIONS IN NICARAGUA. COMPARE B-201260, SEPTEMBER 11, 1984 (PREVIOUS RESTRICTION APPLIED ONLY TO FUNDS EXPENDED FOR THE SPECIFIC PURPOSE OF OVERTHROWING THE GOVERNMENT OF NICARAGUA).

QUESTION 3. "WHAT EXPENDITURES ARE PLANNED FOR FISCAL YEAR 1985 TO IMPROVE MILITARY FACILITIES IN HONDURAS?"

THE DEFENSE DEPARTMENT'S RESPONSE (UNCLASSIFIED) STATES THAT NO MILITARY CONSTRUCTION FUNDS WERE APPROVED FOR DOD OPERATIONS IN HONDURAS FOR FISCAL YEAR 1985, ALTHOUGH SOME OPERATIONS AND MAINTENANCE (O&M) FUNDS HAVE BEEN, OR WILL BE, USED FOR "IMPROVEMENTS" IN FISCAL YEAR 1985.

AS STATED PREVIOUSLY, GAO PLANS TO REVIEW DOD'S EXERCISE CONSTRUCTION ACTIVITIES IN AN UPCOMING FOLLOW-UP TO OUR DECISION 63 COMP.GEN. 422 (1984).

QUESTION 4. "WHAT FISCAL 1985 FUNDS HAVE BEEN SPENT ON THESE FACILITIES TO DATE, AND WILL ANY ADDITIONAL FUNDS BE SPENT PRIOR TO MARCH 1, 1985?"

(DOD RESPONSE CLASSIFIED.)

QUESTION 5. "TO WHAT EXTENT HAVE THESE FACILITIES BEEN USED BY THE CONTRAS IN THE PAST, AND WHAT FUTURE USES DO YOU ANTICIPATE?"

THE DEFENSE DEPARTMENT'S RESPONSE (UNCLASSIFIED) STATES SIMPLY THAT DOD DOES NOT CONTROL THE USE OF FACILITIES IN HONDURAS, AND THAT SUCH DETERMINATIONS ARE MADE BY THE HONDURAN GOVERNMENT.

IN OUR VIEW, THE FACT THAT DOD-IMPROVED FACILITIES IN HONDURAS ARE NOT SUBJECT TO DIRECT U.S. MILITARY CONTROL WOULD NOT NECESSARILY BE DISPOSITIVE OF THE QUESTION OF THE DEPARTMENT'S COMPLIANCE WITH SECTION 775 OF PUBLIC LAW 98-212. THAT PROVISION WAS CLEARLY INTENDED TO APPLY TO ANY TYPE OF DIRECT OR INDIRECT ASSISTANCE, EVEN THAT PROVIDED THROUGH THIRD-PARTY BENEFICIARIES OF U.S. ACTIONS. FOR EXAMPLE, AS INDICATED EARLIER, THE LEGISLATIVE HISTORY OF SECTION 775 REFLECTS AN INTENTION TO CONTROL ASSISTANCE TO ANTI-SANDINISTA FORCES (CONTRAS) THROUGH ACTIONS OF THIRD-PARTY RECIPIENTS OF U.S. ASSISTANCE. 129 CONG.REC. AT H10492. CONSEQUENTLY, TO ANY EXTENT THAT U.S. IMPROVEMENTS TO HONDURAN FACILITIES HAD "THE EFFECT OF SUPPORTING, DIRECTLY OR INDIRECTLY," OPERATIONS OF THE CONTRAS, EXPENDITURES THUS MADE WOULD BE SUBJECT TO THE RESTRICTIONS OF SECTION 775, REGARDLESS OF WHETHER THAT SUPPORT WAS EFFECTED UNDER U.S. OR HONDURAN "CONTROL."

AS A PRACTICAL MATTER, WE RECOGNIZE THE DIFFICULTY IN APPLYING THE STATUTORY LANGUAGE IN QUESTION TO SITUATIONS WHICH MAY INVOLVE THE INTERVENING ACTIONS OF THIRD PARTIES, OR WHERE ASSISTANCE IS SO INDIRECT AS TO BE TENUOUSLY RELATED TO ACTIONS TAKEN BY DOD. NONETHELESS, WE BELIEVE THAT ANY INFORMATION AVAILABLE TO DOD REGARDING UTILIZATION OF U.S.-IMPROVED HONDURAN FACILITIES BY THE CONTRAS MAY BE RELEVANT TO THE QUESTION OF DOD'S OWN COMPLIANCE WITH THE RESTRICTIONS OF SECTION 775.

QUESTION 6. "WHAT SYSTEM OF CONTROL HAVE YOU INSTALLED TO INSURE THAT CURRENT U.S. LAW IS, AND WILL BE, COMPLIED WITH DURING ANY FUTURE EXERCISES?"

THE DEFENSE DEPARTMENT'S RESPONSE (UNCLASSIFIED) STATES THAT EACH UNIFIED COMMANDER IS RESPONSIBLE FOR CONDUCTING EXERCISES IN ACCORDANCE WITH APPLICABLE LAWS AND DOD DIRECTIVES. THE RESPONSE ALSO NOTES THAT SIGNIFICANT EXERCISE PLANS ARE REVIEWED BY DOD, THE STATE DEPARTMENT, THE JOINT CHIEFS OF STAFF, AND THE NATIONAL SECURITY COUNCIL, AND THAT DOD MONITORS EXERCISE PLANNING AND EXECUTION. ACCORDING TO DOD'S RESPONSE, ADDITIONAL GUIDANCE WAS ALSO PROVIDED TO THE U.S. SOUTHERN COMMAND FOLLOWING THE ISSUANCE OF THE COMPTROLLER GENERAL'S OPINION 63 COMP.GEN. 422 (1984).

THE DEFENSE DEPARTMENT'S RESPONSE TO QUESTION 6 DOES NOT INDICATE WHETHER IT INSTITUTED ANY SEPARATE SYSTEM OF CONTROL TO ENSURE COMPLIANCE WITH THE STATUTORY RESTRICTION ON DIRECT OR INDIRECT SUPPORT OF PARAMILITARY OPERATIONS IN NICARAGUA. THE DEPARTMENT'S STATEMENT THAT UNIFIED COMMANDERS ARE RESPONSIBLE FOR COMPLIANCE WITH APPLICABLE RESTRICTIONS DOES NOT REFLECT WHETHER, IN EXERCISING THAT RESPONSIBILITY, THE UNIFIED COMMANDER FOR THE U.S. SOUTHERN COMMAND RECEIVED GUIDANCE FROM THE DEPARTMENT ON THE STATUTORY RESTRICTIONS ON FUNDING FOR THE CONTRAS. SIMILARLY, IT IS NOT CLEAR FROM DOD'S RESPONSE WHETHER DEPARTMENTAL REVIEW OF EXERCISE PLANNING AND EXECUTION ACTIVITIES SPECIFICALLY ADDRESSED THE SUBJECT OF ASSISTANCE TO THE CONTRAS. FINALLY DOD DOES NOT STATE WHETHER GUIDANCE PROVIDED AFTER ISSUANCE OF COMPTROLLER GENERAL DECISION 63 COMP.GEN. 422 (1984), ADDRESSED THE QUESTION OF COMPLIANCE WITH RESTRICTIONS ON DIRECT OR INDIRECT SUPPORT OF THE CONTRAS.

WE HOPE THAT THE FOREGOING COMMENTS ARE OF ASSISTANCE TO YOU. WE ARE SENDING A SIMILAR LETTER TO REPRESENTATIVE MINETA.