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    "title": "Iran/Arms Transaction: Legal Memoranda: Supplemental Legal Questions Submitted to State Department by Hamilton Subcommittee (House Foreign Affairs)",
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    "url": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/reagan/12011812/40-123-12011812-CFOA1131-059-2018.pdf",
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    "ocrText": "Ronald Reagan Presidential Library\nDigital Library Collections\nThis is a PDF of a folder from our textual collections.\nCollection: Culvahouse, Arthur B.: Files\nFolder Title: Iran/Arms Transaction: Legal\nMemoranda: Supplemental Legal Questions\nSubmitted to State Department by Hamilton\nSubcommittee (House Foreign Affairs)\nBox: CFOA 1131\nTo see more digitized collections visit:\nhttps://reaganlibrary.gov/archives/digital-library\nTo see all Ronald Reagan Presidential Library inventories visit:\nhttps://reaganlibrary.gov/document-collection\nContact a reference archivist at: [email protected]\nCitation Guidelines: https://reaganlibrary.gov/citing\nNational Archives Catalogue: https://catalog.archives.gov/\nUnited States Department of State\nThe Legal Adviser\nWashington, D.C. 20520\nDecember 3, 1986\nMEMORANDUM\nTO:\nMr. Cooper, Department of Justice\nMr. Dougherty, Central Intelligence Agency\nMr. Garrett, Department of Defense\nMr. Wallison, White House\nFROM:\nAbraham D. Sofaer\nSUBJECT: Supplemental Legal Questions Submitted to\nDepartment of State by Hamilton Subcommittee\non Europe and the Middle East\nAttached are State's proposed answers to supplemental\nlegal questions submitted by Congressman Hamilton's\nsubcommittee, following the November 24 hearing at which\nDeputy Secretary of State Whitehead testified. Please\ncomment/clear by COB tomorrow.\nattachment\nV. LEGAL ISSUES\nAs a general matter, we refer you to the Justice\nDepartment for answers to questions relating to the legal basis\nfor the arms transfers to Iran. We understand that the Justice\nDepartment may have relied in part on a 1981 memorandum of law\ndone by the Legal Adviser to the State Department concerning\ngeneral legal authority for the transfer of arms outside the\nframework of the Arms Export Control Act. Apart from the\nquestion answered below, the State Department is not in a\nposition to answer any of the other questions relating to\nspecific aspects of this operation. We recommend that the\nCommittee refer these questions to the agencies which had\ndirect involvement and responsibility for the operations in\nquestion.\nA3. President Carter issued Executive Order 12205 on November\n14, 1979 which placed an embargo on Iran, but that was revoked\nJanuary 19, 1981.\n-- Is there a legally binding arms embargo in effect\nagainst Iran today?\n-- Is there any legal basis for an arms embargo against\nIran today?\n-- or is the arms embargo against Iran merely a policy\ndecision with no legal basis today?\nA. In December 1979, in the exercise of its discretionary\nauthority under Section 38 of the Arms Export Control Act to\nregulate and license arms exports, the State Department\nannounced that it had suspended all existing licenses and\napprovals for the export or retransfer to Iran of Munitions\nList articles and related technical data. This policy was\nmaintained after the signing of the Algiers Accords,\nnotwithstanding the revocation of other sanctions against Iran\ncontained in Executive Order 12205, and this policy remains in\neffect today. In addition, Section 509 of the Omnibus\nDiplomatic Security and Antiterrorism Act of 1986 has, since\nits enactment on August 27, 1986, prohibited (in the absence of\na Presidential waiver and report to Congress) the export of\nMunitions List items to any country which the Secretary of\nState has determined, for purposes of section 6 of the Export\nAdministration Act, has repeatedly provided support for acts of\ninternational terrorism. On January 23, 1984 the Secretary of\nState determined that Iran is such a country, and that\ndetermination remains in effect.\nDANTE 8 FASCELL FLORIDA, CHAIRMAN\nLEE H. HAMILTON, INDIANA\nWILLIAM S BROOMFIELD. MICHIGAN\nGUS YATRON. PENNSYLVANIA\nBENJAMIN A. GILMAN, New YORK\nSTEPHEN J. SOLARZ New YORK\nROBERT J LAGOMARSINO. CALIFORNIA\nDON BONKER, WASHINGTON\nJIM LEACH IOWA\nGERRY E. STUDDS. MASSACHUSETTS\nTOBY ROTH. WISCONSIN\nDAN MICA, FLORIDA\nOLYMPIA J. SNOWE MAINE\nMICHAEL D. BARNES MARYLAND\nHENRY J. HYDE. ILLINOIS\nHOWARD WOLPE MICHIGAN\nGERALD B.H. SOLOMON. New YORK\nCongress of the United States\nGEO W. CROCKETT, JR., MICHIGAN\nDOUG BEREUTER NEBRASKA\nSAM GEJDENSON. CONNECTICUT\nMARK D. SILJANDER, MICHIGAN\nMERVYN M DYMALLY. CALIFORNIA\nED ZSCHAU CALIFORNIA\nTOM LANTOS. CALIFORNIA\nROBERT K. DORNAN CALIFORNIA\nCommittee on Foreign Affairs\nPETER H. KOSTMAYER. PENNSYLVANIA\nCHRISTOPHER H. SMITH, NEW JERSEY\nROBERT G. TORRICELLI, NEW JERSEY\nCONNIE MACK. FLORIDA\nLAWRENCE J. SMITH FLORIDA\nMICHAEL DEWINE. OHIO\nHOWARD L BERMAN, CALIFORNIA\nDAN BURTON INDIANA\nHouse of Representatives\nHARRY REID. NEVADA\nJOHN McCAIN, ARIZONA\nMEL LEVINE. CALIFORNIA\nEDWARD F. FEIGHAN. ONIO\nWashington, DC 20515\nTED WEISS. NEW YORK\nGARY L ACKERMAN, NEW YORK\nBUDDY MACKAY. FLORIDA\nMORRIS K. UDALL. ARIZONA\nROBERT GARCIA, NEW YORK\nJOHN J. BRADY, JR.\nNovember 25, 1986\nCHIEF OF STAFF\nThe Honorable John C. Whitehead\nDeputy Secretary\nDepartment of State\nWashington, D.C. 20520\nDear Mr. Secretary:\nAttached please find supplemental questions submitted by the\nCommittee following the November 24th hearing on the President's\nforeign policy initiatives toward Iran.\nBecause of the importance of this subject, it is the committee's\ndesire to have this information as soon as possible. Therefore it\nwould be appreciated if the Department would coordinate, where\nnecessary, with other Executive branch agencies and provide the\nresponses to the committee no later than Friday, December 5.\nI appreciated your appearance before the committee yesterday.\nWith best regards,\nSincerely yours,\nLee H. Hamilton\nChairman\nSubcommittee on Europe\nand the Middle East\nPage 16\nV. LEGAL ISSUES\nA. General\nNEW\n1. Under what authority did you transfer or sell military articles\nto\nIran?\nw/L>\n- Under what authority did you approve third country transfer of\nPM\ndefense articles and services to Iran?\nand\nothers\n- The Attorney General prepared a memo outlining the legal basis for\nas approp.\nthe President's authorization of arms transfers to Iran. Could you\nprovide the Committee with a copy of that memo?\n- Could you also provide the Committee with any other legal memos from\nWhite House Counsel, Department of State or other Executive branch\nagencies stating the Administration's legal basis for proceeding\nwith arms transfers to Iran?\n2. Military equipment supplied by the United States under the Foreign\nMilitary Sales and other security assistance programs is subject to various\nconditions on use, retransfer, etc.\n- In the case of military equipment made available to Iran by the CIA,\nwere any conditions imposed on Iran with respect to that equipment?\n3. President Carter issued Executive Order 12205 on November 14, 1979\nwhich placed an embargo on Iran, but that was revoked January 19, 1981.\nL\n- Is there a legally binding arms embargo in effect against Iran\ntoday?\n- Is there any legal basis for an arms embargo against Iran today?\n- Or is the arms embargo against Iran merely a policy decision with no\nlegal basis today?\nPage 17\nB. Provisions of the Arms Export Control Act\n1. Under Section 3 (a) of the AECA, no defense article shall be sold by the\nL\nU.S. to a foreign country unless \"the receiving country agrees not to transfer\ntitle to, or possession of, the defense article unless the President's consent\nhas first been obtained.\" The President must promptly submit a report to\nCongress on the implementation of each agreement entered into pursuant to this\nprovision.\n- Why has no report been submitted to Congress concerning such\nagreement by Iran?\n- Why has no report been submitted to Congress concerning consent by\nthe President to Israel or any other government to permit a third\ncountry transfer of arms to Iran?\n2. Section 3(f) of the AECA states that \"Unless the President finds that\nnational security requires otherwise,\" arms sales are prohibited to \"any\ngovernment which aids or abets, by granting sanctuary from prosecution, any\nindividual or group which has committed an act of international terrorism.\" The\nPresident may waive this requirement, but he must submit a report to Congress.\nSince January, 1984, the Secretary of State has designated Iran as a state\nwhich has supported terrorism.\n- Why has no report on a waiver been submitted to the Congress?\n- Why is this provision not applicable to any arms sales to Iran\nregardless of the authority under which they may be provided?\n3. Section 4 of the AECA states that defense articles can be sold by the\nUnited States only to \"friendly countries solely for internal security\" and\nL\nonly for \"legitimate self-defense.\"\n- Has Iran met these two criteria?\n- Would the use of U.S.-supplied arms by Iran in Iraqi-held territory\nbe considered legitimate self-defense?\n- Can a state officially designated as one which supports\ninternational terrorism also be a \"friendly country\" ?\n- What evidence do you have that what the President has said are\n\"defensive weapons and spare parts for defensive systems\" are being\nused by Iran for \"legitimate self-defense\"?\nPage 18\n3. (continued)\nThe Administration is on record that Iran is the intransigent party in the\nIran-Iraq war and that Iran, not Iraq, is the party which has rejected\ninternational mediation or negotiation to end the war.\n- How can any provision of arms in this case constitute \"legitimate\nself-defense\"?\nC. Third Country Transfers\n1. NO third country transfers of U.S.-supplied defense articles and\nservices can go forward without the consent of the President or the Secretary\nL\nof State. Congress requires prompt reports of notification of such consent.\n- Was any such authority granted by the U.S. to Israel or any other\ncountry?\n- Who in the Government gave this consent?\n- What was the value (in terms of original acquisition cost) of the\nequipments whose transfer was approved?\n- Was the Congress notified that such approval was being given?\n- If not, why not?\n2. What military equipment has Israel made available to Iran (directly or\nthrough intermediaries) with the knowledge of the United States Government\nduring the past two years?\nNCA/IAI\n- When was this equipment transferred to Iran?\n- What was the value of the equipment involved?\n- Who in the United States Government knew of the transfer?\n- How did the United States Government come to know that the transfer\nwas going to occur?\n1898\nDEC -3 b\nUnited States Department of State\nThe Legal Adviser\nWashington, D.C. 20520\nDecember 3, 1986\nMEMORANDUM\nTO:\nMr. Cooper, Department of Justice\nMr. Dougherty, Central Intelligence Agency\nMr. Garrett, Department of Defense\nMr. Wallison, White House\nFROM:\nAbraham D. Sofaer\nSUBJECT: Supplemental Legal Questions Submitted to\nDepartment of State by Hamilton Subcommittee\non Europe and the Middle East\nAttached are State's proposed answers to supplemental\nlegal questions submitted by Congressman Hamilton's\nsubcommittee, following the November 24 hearing at which\nDeputy Secretary of State Whitehead testified. Please\ncomment/clear by COB tomorrow.\nNSF\nattachment\nUnited States Department of State\nWashington, D.C. 20520\nSEC\nDear Mr. Chairman:\nI am writing in response to your letter of November 25,\n1986, in which you ask a number of questions relating to the\nsale of U.S. military equipment to Iran and the provision of\nfunds to the Nicaraguan democratic resistance.\nWe have reviewed the list of questions carefully. I have\nenclosed responses to those queries which relate to U.S.\npolicies and routine Department procedures on which the\nDepartment has information.\nIn many instances, however, the Department is unable to\nprovide answers because we do not possess authoritative\ninformation on the arms or financial transactions about which\nyou are asking. Other executive branch agencies may be in\npossession of information responsive to these questions, and we\nunderstand that these agencies have been contacted directly by\nyour Subcommittee.\nAs you are aware, the Secretary of State has provided\ntestimony before the House Foreign Affairs Committee (and is\nprepared to provide additional testimony in appropriate fora)\nconcerning the Department of State's knowledge of the entire\nmatter. We remain convinced that this comprehensive testimony\nwill provide a full account of the information available to the\nState Department.\nI hope that this information will be of assistance.\nSincerely,\nJ. Edward Fox\nAssistant Secretary\nLegislative and Intergovernmental Affairs\nEnclosure:\nAs stated\nThe Honorable\nLee H. Hamilton, Chairman\nSubcommittee on Europe and the Middle East,\nHouse of Representatives.\n(LEGAL SECTION ONLY)\nV. LEGAL ISSUES\nAs a general matter, we refer you to the Justice Department\nfor questions relating to the legal basis for the arms transfer\nto Iran. We understand that the Justice Department may have\nrelied in part on a 1981 memorandum of law done by the Legal\nAdviser to the State Department concerning general legal\nauthority for the transfer of arms outside the framework of\ntahe Arms Export Control Act. Apart from the question answered\non the next page (A3), the State Department is not in a\nposition to answer any of the other questions relating to\nspecific aspects of this operation. We recommend that the\nCommittee refer these questions to the agencies which had\ndirect involvement and responsibility for the operations in\nquestion.\n3. President Carter issued Executive Order 12205 on November\n14, 1979 which placed an embargo on Iran, but that was revoked\nJanuary 19, 1981.\n--\nIs there a legally binding arms embargo in effect\nagainst Iran today?\n--\nIs there any legal basis for an arms embargo against\nIran today?\n--\nOr is the arms embargo against Iran merely a policy\ndecision with no legal basis today?\nA. In December 1979, in the exercise of its discretionary\nauthority under Section 38 of the Arms Export Control Act to\nregulate and license arms exports (with the exception of\nexports by a U.S. Government agency for its official use or to\ncarry out a foreign assistance or sales program authorized by\nlaw), the State Department announced that it had suspended all\nexisting licenses and approvals for the export or retransfer to\nIran of Munitions List articles and related technical data.\nThis policy is consistent with the Algiers Accords, in our\nview, and remains in effect today. In addition, Section 509 of\nthe Omnibus Diplomatic Security and Antiterrorism Act of 1986,\nwhich was enacted on August 27, 1986, amended the Arms Export\nControl Act to prohibit (in the absence of a Presidential\nwaiver and report to Congress) the export of Munitions List\nitems to any country which the Secretary of State has\ndetermined, for purposes of section 6 of the Export\nAdministration Act, has repeatedly provided support for acts of\ninternational terrorism. On January 23, 1984 the Secretary of\nState determined that Iran is such a country, and that\ndetermination remains in effect. (The foregoing is, of course,\nwithout prejudice to the authority of the Executive Branch to\ncarry out transfers of defense articles and services under\nother legal authorities, such as pursuant to special\nintelligence findings.)\n2. What military equipment has Israel made available to Iran\n(directly or through intermediaries) with the knowledge of the\nUnited States Government during the past two years?\nWhen was this equipment transferred to Iran?\nWhat was the value of the equipment involved?\nHow did the United States Government come to know that\nthe tansfer was going to occur?\nA. I have no direct information on this subject. The agencies\n?\ninvolved in transfers to Iran have provided full accounting to\nCongress through appropriate channels.\n3. What was the status of equipment Israel supplied to Iran?\nWas any of this equipment Israel supplied to Iran\noriginally provided to Israel by the United States\nGovernment under the Foreign Military Sales or other\nsecurity assistance program?\nWas any of this equipment produced under a manufacturing\nlicensing agreement or a technical assistance agreement?\nWas any of this equipment \"U.S. origin\" equipment that\nwas obtained by Israel by other means, e.g. captured during\nmilitary operations or obtained through private arms\ndealers?\nA. I don't have the answers to these questions at this time.\n4. Has any other foreign country, with the knowledge of the\nUnited States Government, made available to Iran (directly or\nthrough intermediaries) during the last two years any US-origin\nmilitary equipment that was obtained under the Foreign Military\nSales or other security assistance program, under a\nmanufacturing licensing or technical assistance agreement, or\nunder a Munitions control license?\nA. Not to the knowledge of the State Department.\n5. Does the United States Government have any information that\nany foreign country has transferred U.S.-origin military\nequipment to Iran without obtaining the required consent of the\nUnited States.\n--If it does, why has this information not been reported to\nthe Congress?\nA. No.\n6. To the extent that a foreign government transferred\nU.S. -origin military equipment to Iran through intermediaries,\ndid the United States Government know this was being done?\n--Did it give its approval to such indirect transfers?\nWas Congress informed of the transfer to the intermediary?\nA. We do not have information on this subject.\n7. With respect to U.S.-origin military equipment supplied to\nIran by other countries:\nWould the United States have been willing to transfer\nthis military equipment to Iran itself?\nWere any conditions imposed, especially conditions\nrelating to purposes for which the equipment could be used\nor relating to retransfers of the equipment?\nWas any of the equipment \"demilitarized\" prior to its\ntransfer?\nHas Iran provided any commitments in writing to the\nUnited States Government that it will not transfer the\nmilitary equipment, if not demilitarized, to any foreign\ncountry or person without first obtaining the consent of\nthe President?\nA. I have no information reliably to comment on these\nquestions.\nQ. Today's Washington Post says that the State Department\ntold the House Foreign Affairs Committee last week that a\nspecial presidential intelligence finding could override the\nprohibition against selling U.S. arms to Iran established by\nthe 1986 antiterrorism act. Is that correct?\nA. The Post article apparently refers to one of a series\nof answers provided by the State Department to questions\nsubmitted by the Chairman of the HFAC Subcommittee on Europe\nand the Middle East, Lee Hamilton, to Deputy Secretary Whitehead\nin connection with his appearance before that Subcommittee on\nNovember 24.\nThis answer responded to a question from the Committee as\nto whether a legally binding arms embargo was presently in\neffect against Iran, and the Department's answer referred,\namong other things, to a provision of the Omnibus\nDiplomatic Security and Antiterrorism\nAct of 1986, which amended the Arms Export Control Act to\nprohibit (in the absence of a Presidential waiver and report to\nCongress) the export of Munitions List items to any country\nwhich the Secretary of State has determined to have repeatedly\nprovided support for acts of international terrorism. The\nDepartment's answer then notes, in a concluding parenthetical,\nthat \"the foregoing is, of course, without prejudice to the\nauthority of the Executive Branch to carry out transfers of\ndefense articles and services under other legal authorities,\nsuch as pursuant to special intelligence findings.\"\n-2-\nThis was an appropriate caveat, since it is generally\nrecognized, by both the Executive Branch and the Congress,\nthat the Executive Branch is authorized to transfer arms\nto foreign governments pursuant to intelligence operations\nconsistent with the National Security Act, outside the terms\nand limitations of the Arms Export Control Act. It was a\ngeneral answer to a general question about existing law,\nnot an analysis of any particular arms transfers.\nQ. Does that mean that the Administration believes it can\nlegally transfer arms to a country on the terrorism list,\nwithout the Presidential waiver and notice to Congress required\nby the Omnibus Antiterrorism Act, so long as it is done under\ncover of intelligence operations?\nA. We believe that arms transfers pursuant to intelligence\noperations are in general governed by the National Security Act\nand not the Arms Export Control Act, which was intended and\ndesigned to deal with overt arms transfers through normal\ngovernment channels. We have not addressed whether the\nprovision of the Omnibus Antiterrorism Act,\nwhich amended the Arms Export Control Act on August 27, 1986,\nwas intended to alter this general rule."
}