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Iran/Arms Transaction: Legal Memoranda: Sale and Shipment of Military Equipment to Iran (3)
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Iran/Arms Transaction: Legal Memoranda: Sale and Shipment of Military Equipment to Iran (3)
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Arthur Culvahouse's Office Files
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Culvahouse, Arthur B.: Files
Folder Title: Iran/Arms Transaction: Legal Memoranda:
Sale and Shipment of Military Equipment to Iran (3)
Box: CFOA 1131
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
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Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
WITHDRAWAL SHEET
Ronald Reagan Library
Collection Name CULVAHOUSE, ARTHUR B. .:FILES
Withdrawer
DLB
8/20/2014
File Folder
IRAN/ARMS TRANSACTION: LEGAL MEMORANDA:
FOIA
SALE AND SHIPMENT OF MILITARY EQUIPMENT TO
S643
IRAN
Box Number
CFOA 1131
SYSTEMATIC
160
ID
Doc Type
Document Description
No of Doc Date Restrictions
Pages
165158
MEMO
PETER WALLISON TO DONALD REGAN,
6 11/11/1986 B1
RE: LEGAL RESTRICTIONS ON
SHIPMENTS OF U.S. MILITARY
EQUIPMENT TO IRAN
The above documents were not referred for declassification review at time of processing
Freedom of Information Act [5 U.S.C. 552(b)]
B-1 National security classified information [(b)(1) of the FOIA]
B-2 Release would disclose internal personnel rules and practices of an agency [(b)(2) of the FOIA]
B-3 Release would violate a Federal statute [(b)(3) of the FOIA]
B-4 Release would disclose trade secrets or confidential or financial information [(b)(4) of the FOIA]
B-6 Release would constitute a clearly unwarranted invasion of personal privacy [(b)(6) of the FOIA]
B-7 Release would disclose information compiled for law enforcement purposes [(b)(7) of the FOIA]
B-8 Release would disclose information concerning the regulation of financial institutions [(b)(8) of the FOIA]
B-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of gift.
WITHDRAWAL SHEET
Ronald Reagan Library
Collection Name
Withdrawer
CULVAHOUSE, ARTHUR B. FILES
DLB 8/20/2014
File Folder
FOIA
IRAN/ARMS TRANSACTION: LEGAL MEMORANDA: SALE
S643
AND SHIPMENT OF MILITARY EQUIPMENT TO IRAN
SYSTEMATIC
Box Number
CFOA 1131
160
ID
Document Type
No of
Doc Date
Restric-
Document Description
pages
tions
165158 MEMO
6 11/11/1986
B1
PETER WALLISON TO DONALD REGAN, RE:
LEGAL RESTRICTIONS ON SHIPMENTS OF U.S.
MILITARY EQUIPMENT TO IRAN
The above documents were not referred for declassification review at time of processing
Freedom of Information Act - [5 U.S.C. 552(b)]
B-1 National security classified information [(b)(1) of the FOIA]
B-2 Release would disclose internal personnel rules and practices of an agency [(b)(2) of the FOIA]
B-3 Release would violate a Federal statute [(b)(3) of the FOIA]
B-4 Release would disclose trade secrets or confidential or financial information [(b)(4) of the FOIA]
B-6 Release would constitute a clearly unwarranted invasion of personal privacy [(b)(6) of the FOIA]
B-7 Release would disclose information compiled for law enforcement purposes [(b)(7) of the FOIA]
B-8 Release would disclose information concerning the regulation of financial institutions [(b)(8) of the FOIA]
B-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of gift.
THE WHITE HOUSE
WASHINGTON
November 12, 1986
MEMORANDUM FOR DONALD T. REGAN
CHIEF OF STAFF TO THE PRESIDENT
FROM:
PETER J. WALLISON
pep
SUBJECT:
Sales of U.S. Military Equipment to Iran
Introduction
Various press reports have described alleged shipments of U.S.
military equipment to Iran. The manner in which such shipments
are said to have taken place varies widely throughout the
differing accounts. Determination of the applicable law, and
analysis of relevant legal provisions, is heavily dependent upon
a precise rendering of the facts. The following general
discussion, therefore, is designed solely to provide an overview
of possibly relevant provisions of the Arms Export Control Act,
the Export Administration Act, and related orders and
regulations. This memorandum does not, however, offer any
conclusions as to the legality of alleged shipments of U.S.
military articles to Iran. In my opinion, it would be
inappropriate to offer any such conclusions solely on the basis
of hypothetical facts or media accounts.
Arms Export Control Act
Generally, export to foreign countries of items on the U.S.
Munitions List / is governed by the Arms Export Control Act.
The Act generally applies, however, only to sales or leases by
the United States government. Transactions involving
non-Munitions List items, structured as other than sales or
leases, or involving a principal other than the United States
government, may not be covered by the Act.
* / The United States Munitions List covers a wide range of items
deemed to be inherently military in character including, but not
limited to, firearms, munitions and rockets; military aircraft,
vehicles and electronics; and equipment and spares for such
items.
- 2 -
Non-Transfer and Use Assurances. Pursuant to section 3 of
the Act, sales or leases of military articles to any country or
international organization are permitted only if that country or
organization agrees not to transfer such articles to a third
country (e.g., Iran) unless the consent of the President has
first been obtained. In addition, section 3 provides as a
prerequisite to sale or lease of military articles to any country
that the recipient country must agree to maintain the security of
such articles and to provide substantially the same degree of
security protection accorded to such articles by the United
States government.
In considering a request by a recipient country for approval of
the sale of any military articles to another country, section 3
of the Act requires that the President "shall not give his
consent
unless the United States itself would transfer the
defense article under consideration to that country." As noted
below, there are legal restrictions on the United States itself
transferring military articles to Iran that could be applicable.
If these restrictions are applicable, it would be an issue
whether the President could consent to a transfer to Iran of
military articles from a legitimate recipient country.
If the President were to consent to the transfer by a recipient
country (e.g., Israel) to Iran, section 3 of the Act requires
that he "promptly submit a report to the Speaker of the House of
Representatives and to the Committee on Foreign Relations of the
Senate on the implementation of" the non-transfer and use
assurance agreements required by the Act. "Promptly" is not
defined in the Act.
Section 3 also provides that the President may not consent to a
transfer by a recipient country (e.g., Israel) to a third country
(e.g., Iran) of defense articles exceeding $50 million in value
(in terms of their original acquisition cost), or any "major
defense equipment" exceeding $14 million in value, unless he
submits a detailed report concerning the transaction to Congress
at least 30 calendar days before giving such consent.
Omnibus Diplomatic Security and Anti-Terrorism Act of 1986.
This law amended the Arms Export Control Act by adding a new
section 40, which became effective on August 27, 1986. On and
after that date, Munitions List items "may not be exported to any
country which the Secretary of State has determined
has
repeatedly provided support for international terrorism.' In
Secretarial Determination 84-3 (attached), the Secretary of State
determined that Iran is a country which has repeatedly provided
support for international terrorism. That determination has not
been revoked. Exports of U.S. military equipment to Iran after
August 27, 1986, would therefore be an issue under this
provision. The President may, however, waive this prohibition if
he determines that "the export is important to the national
interests of the United States and submits to the Congress a
- 3 -
report justifying that determination and describing the proposed
export. " The provision thus contemplates that the President's
waiver will be submitted to Congress before the sale takes place.
Any such waiver by the President is valid for 90 days after it is
granted, unless extended by law.
Prohibition on Sales to Governments Granting Sanctuary to
Terrorists. Section 3(f) of the Arms Export Control Act requires
that the President "shall terminate all sales under this chapter
[Arms Export Control] to any government which aids or abets, by
granting sanctuary for prosecution to, any individual or group
which has committed an act of international terrorism."
This provision of the Arms Export Control Act does not specify in
what manner a determination is made that a government grants
sanctuary to terrorists. However, the Secretary of State's
determination that Iran is a country which has repeatedly
provided support for acts of international terrorism might be
applicable here.
Section 3 (f) permits the President to avoid the prohibition of
this section if he finds "that the national security requires
otherwise." In that case, "he shall report such finding to the
Speaker of the House of Representatives and the Committee on
Foreign Relations of the Senate." No time period for this report
is specified.
We note that this section by its plain language appears to apply
only to ongoing sales, credits and guaranties; it requires that
the President terminate such sales, credits and guaranties, or
that he may continue them if this is required by national
security. This section may not, therefore, apply to a situation
in which ongoing sales, credits or guaranties do not exist.
License Requirement. Section 38 of the Arms Export Control
Act prohibits the export of Munitions List items without a
license issued under regulations implementing that section. The
implementation of this section, including the authority to adopt
regulations and to grant licenses, has been delegated to the
Secretary of State.
The requirement in this section that a license be obtained for
the export of military articles is expressly made inapplicable to
"exports or imports made by or for an agency of the United States
government (A) for official use by a department or agency of the
United States government, or (B) for carrying out any foreign
assistance or sales program authorized by law and subject to the
control of the President by any other means." The scope of this
exception is described in the International Traffic and Arms
Regulations ("ITAR"), issued by the Secretary of State. In
particular, § 126.4 of the regulations states that the
above-cited exception applies "only when all aspects of a
transaction (export, carriage and delivery abroad) are effected
- 4 -
by a United States government agency, or when the export is
covered by a United States government bill of lading." The
regulation expressly states that the exception "does not
authorize any department or agency of the U. S. government to
make any export which is otherwise prohibited by virtue of other
administrative provisions or by any statute." Nothing in the
ITAR, however, expressly prohibits the export of Munitions List
items to Iran.
Export Administration Act
The export of items not on the Munitions List, but which have
potential military application, is generally governed by the
Export Administration Act.
Section 6 of the Export Administration Act requires that certain
congressional committees be notified at least 30 days prior to
the approval of any license for the export, to any country which
the Secretary of State has determined has repeatedly provided
support for acts of international terrorism, of any goods or
technology worth more than $1 million which would make a
significant contribution to its military potential. As indicated
above, Iran has been so designated by the Secretary of State.
The authority of the Export Administration Act has also been used
to impose a requirement for validated licenses (and a presumption
of denial) for certain categories of exports to Iran thought to
have particular military application, including all aircraft and
helicopters and related parts and components, and all goods and
technical data subject to national security controls and destined
for a military end-user or end-use.
Iranian Assets Control Regulations
At the time of the Iranian hostage crisis, certain Iranian
properties in the United States were blocked by Executive Order
12270, issued November 14, 1979. These assets may have included,
in part, military equipment purchased under contract pursuant to
a legally authorized U. S. sales program. Certain press reports
have speculated that military equipment previously so blocked has
been shipped to Iran.
Under the Iranian Assets Control Regulations issued by the
Department of the Treasury on May 21, 1984, a Treasury license is
required for the movement or transfer of any tangible property in
which Iran has any interest whatsoever and which has potential
military application. This license requirement applies to
Munitions List items acquired by Iran through commercial channels
prior to the hostage crisis but never exported. It does not,
however, apply to items exported directly by the U. S.
government.
- 5 -
Furthermore, the authority for the Iranian Assets Control
Regulations was conferred by the President by virtue of Executive
Order 12270 and the International Emergency Economic Powers Act.
Any restriction in the regulations on the actions of the
President, therefore, would generally be susceptible of
revocation by the President himself.
2836
Federal Register / Vol. 49. No. 15 / Monday, January 23, 1984 / Notices
DATE AND TIME: February 13. 1984, 8:30
PACIFIC NORTHWEST ELECTRIC
DEPARTMENT OF TRANSPORTATION
a.m. to 5 p.m.; and February 14. 1984,
POWER AND CONSERVATION
8:30 a.m. to 12 noon.
Federal Aviation Administration
PLANNING COUNCIL
ADDRESS: National Aeronautics and
Hydropower Options Task Force;
National Airspace Review; Meeting
Space Administration, FB 10-B.
February 13, Room 625-T. and February
Regular Meeting Notice
AGENCY: Federal Aviation
Administration, DOT.
14. Room 226-A. 600 Independence Ave.
AGENCY: Hydropower Options Task
ACTION: National Airspace Review Plan
SW. Washington, D.C.
Force of the Pacific Northwest Electric
Revision.
FOR FURTHER INFORMATION CONTACT:
Power and Conservation Planning
Henry V. Bielstein. M.D., Code EB,
Council (Northwest Power Planning
SUMMARY: On April 22, 1982, the
National Aeronautics and Space
Council).
National Airspace Review plan was
Administration, Washington, DC 20546
published in the Federal Register. The
ACTION: Notice of meeting.
(202/453-1546).
plan encompassed a review of airspace
use and the procedural aspects of the air
SUPPLEMENTARY INFORMATION: The Life
Notice of meeting to be held pursuant
traffic control system. Subsequent
Sciences Advisory Committee consults
to the Federal Advisory Committee Act,
revisions to the schedule of various task
with and advises the Council and NASA
5 U.S.C. Appendix I. 1-4. Activities will
groups have been made. This notice
on the accomplishments and plans of
include:
advises that Task Group 2-4.4,
NASA's Life Sciences Programs.
Review of Hydropower Options Task
Helicopter Operations. Approach
This meeting will be closed to the
Force Charter
Procedures, which was scheduled to
public from 4 p.m. to 5 p.m. on February
Discussion of Bonneville proposal
begin February 20, 1984. has been
13 for a discussion of candidates being
Discussion of Work Schedule
postponed until after April 30, 1984, in
considered for Committee membership.
order to ensure availability of pertinent
Business
During this session, the qualifications of
flight test data results to the task group.
Public Comment.
proposed new members will be candidly
A specific date for this task group
discussed and appraised. Since this
STATUS: Open.
session will be provided in a subsequent
session will be concerned throughout
SUMMARY: The Northwest Power
notice in conjunction with other plan
with matters listed in 5 U.S.C. 552(c)(6),
revisions.
Planning Council hereby announces a
it has been determined that this session
forthcoming meeting of its Hydropower
FOR FURTHER INFORMATION CONTACT:
should be closed to the public. The
Options Task Force.
National Airspace Review Program
remainder of the meeting will be open to
Management Staff, room 1005, Federal
the public up to the seating capacity of
DATE: Tuesday. January 31. 1984. 9 a.m.
Aviation Administration. 800
the room (approximately 35 persons
ADDRESS: The meeting will be held at
Independence Avenue. SW.,
including committee members and other
the Council Hearing Room at 700 SW.
Washington. D.C. 20591. 202-426-3560.
participants).
Taylor: Suite 200. in Portland. Oregon.
Issued in Washington. D.C., on January 11.
1984.
Type of Meeting
FOR FURTHER INFORMATION CONTACT:
Tom Foley. (503) 222-5161.
Karl D. Trautmann,
Open-except for a closed session as noted
Manager. Special Projects Staff Air Traffic
in the agenda below.
Edward Sheets.
Service.
Executive Director.
February 13. 1984
(FR Doc. 84-1750 Filed 1-20-84: 8:45 aml
[FR Doc. 64-1787 Filed 1-20-84 8:45 am]
BILLING CODE 4910-13-M
8:30 a.m.-Committee Functions (Open
BILLING CODE 0000-00-M
session).
9 a.m.-SL-1 Preliminary Results (Open
Radio Technical Commission For
session).
Aeronautics (RTCA), Special
DEPARTMENT OF STATE
10:30 a.m.-Review Life Sciences' Program
Committee 151-Airborne Microwave
Plan (Open session).
Office of the Secretary
Landing System Area Navigation
1 p.m.-Review of Space Station Plan
Equipment; Meeting
(Open session).
[Secretarial Determination 84-3]
Pursuant to section 10(a)(2) of the
4:00 p.m.-LSAC Membership (Closed
Determination Pursuant to Section 6(i)
Federal Advisory Committee Act (Pub.
session).
of the Export Administration Act of
L. 92-463; 5 U.S.C. App. I) notice is
February 14. 1984
1979-Iran
hereby given of a meeting of RTCA
8:30 a.m.-Status of space Biomedical
Special Committee 151 on Airborne
In accordance with Section 6(i) of the
Institute (Open session).
Microwave Landing System (MLS) Area
Export Administration Act of 1979, 50
9:30 a.m.-Advocacy Paper (Open session).
Navigation Equipment to be held on
U.S.C. App. 2405(i), I hereby determine
12 noon-Adjourn.
February 8-10. 1984. in the RTCA
that Iran is a country which has
Conference Room. One McPherson
Dated: January 17, 1984.
repeatedly provided support for acts of
Square. 1425 K Street NW., Suite 500.
Richard L. Daniels,
international terrorism.
Washington. D.C. commencing at 9:30
Director. Management Support Office. Office
George P. Shultz.
a.m.
of Management.
Secretary of State.
The Agenda for this meeting is as
[FR Dnc. 84-1748 Filed 1-20-84 8:45 aml
FR Doc 84-1825 Filed 1-20-84 8:45
follows: (1) Chairman's Introductory
BILLING CODE 7510-01-M
BILLING CODE 4710-06-M
Remarks: (2) Approval of Minutes of the
Seen of determetion