Presidential Discretion to Delay Making Determinations Under the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 ( 1995 )

Presidential Discretion to Delay Making Determinations Under
the Chemical and Biological Weapons Control and Warfare
Elimination Act of 1991
The President is required to make a determination that would trigger sanctions under the Chemical
and Biological W eapons Control and Warfare Elimination Act of 1991 if he is presented with
sufficient evidence to compel the determination.
The President may delay making a determination that would trigger sanctions under the Act when
the delay is necessary to protect intelligence sources or methods used in counter-proliferation activi­
ties.
The President may delay making a determination that would trigger sanctions under the Act when
no reasonable alternative means exist to protect the life of an intelligence source.
November 16, 1995
M e m o r a n d u m O p in io n fo r t h e
S p e c ia l A s s is t a n t t o t h e P r e s id e n t a n d
L e g a l A d v is e r t o t h e N a t io n a l S e c u r it y C o u n c il
You have asked for our opinion concerning the scope, if any, of the President’s
discretion to delay making the determinations that are prerequisite to imposing
mandatory sanctions under the Chemical and Biological Weapons Control and
Warfare Elimination Act of 1991, Pub. L. No. 102-182, § 305(b), 105 Stat. 1245,
1250 (the “ CBW Act” ), codified in part as an amendment to the Export Adminis­
tration Act. See 50 U.S.C. app. § 2410c.1 We conclude that the CBW Act permits
the President to delay making determinations that would trigger sanctions under
this section, when the delay is necessary to protect intelligence sources or methods
used for acquiring intelligence relating to CBW proliferation.
You have also asked whether the President has any greater ability to delay a
determination when the life of an intelligence source would be placed at substan­
tial risk by the imposition of sanctions and no alternative reasonable means exists
to exfiltrate or otherwise protect the source. This extreme case creates a conflict
with the President’s constitutional obligations and various of his statutory duties.
In such circumstances, we conclude that the President can delay making a deter­
mination to protect the life of the source.
I.
Section 2410c of title 50 appendix reads in part as follows:
•V irtually identical provisions were also codified as amendments 10 the Arms Export Control Act ( “ A ECA ” ).
See 22 U.S.C. §2798. For convenience, the citations herein are only to the Export Administration Act provisions.
O ur opinion, however, applies equally to both sets o f provisions.
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Control and Warfare Elimination Act o f 1991
Except as provided in subsection (b)(2), the President shall
impose both of the sanctions described in subsection (c) if the Presi­
dent determines that a foreign person, on or after the date of enact­
ment of this section,[2] has knowingly and materially contributed—
(A) through the export from the United States of any goods
or technology that are subject to the jurisdiction o f the
United States under this Act, . . . or
(B) through the export from any other country of any goods
or technology that would be, if they were United States
goods or technology, subject to the jurisdiction of the United
States under this Act . . .
to the efforts by any foreign country, project, or entity described
in paragraph (2) to use, develop, produce, stockpile, or otherwise
acquire chemical or biological weapons.
50 U.S.C. app. §2410c(a)(l).3
The “ foreign countries]” to which subsection (a)(1) refers include any foreign
country that the President determines to have used chemical or biological weapons
in violation of international law, used lethal chemical or biological weapons
against its own nationals, or made substantial preparations to engage in either
of those two activities; any foreign country whose government is determined to
have repeatedly supported acts of international terrorism; or any other foreign
country, project, or entity designated by the President. Id. §2410c(a)(2).
Once a determination has been made, both procurement and import sanctions
are liable to be imposed. Id. §2410c(c)(2). Congress “ urges” the President, before
imposing sanctions, to engage in consultations “ immediately” with the foreign
government with primary jurisdiction over the person subject to the sanctions.
Id. §2410c(b)(l). In order to pursue such consultations, the President may delay
imposing sanctions for up to 90 days. Id. §2410c(b)(2). Following these consulta­
tions, the President “ shall” impose sanctions unless he determines and certifies
to Congress that the government has taken “ specific and effective actions” to
end the involvement of the subject person in the sanctionable activities. Id. A
further delay of up to 90 days is authorized if the President determines and cer­
2 The effective date o f the statute was O ctober 28, 1991.
3 The comparable provision o f the AECA is virtually identical, except for the addition o f a third basis for the
President's determination. Under AECA, the imposition o f sanctions can also be based on a determination that a
foreign person contributed to a foreign country’s use or acquisition o f chemical or biological weapons “ through
any other transaction not subject to sanctions pursuant to the Export Administration Act o f 1979.” 22 U.S.C.
§2798(a)(l)(C ).
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tifies to Congress that the foreign government is “ in the process” of taking the
appropriate actions. Id.
The President is authorized not to apply or maintain sanctions in certain speci­
fied circumstances. Id. §2410c(c)(2). Thus, the President is not required to impose
sanctions in certain cases of procurement of defense articles or defense services
(e.g., those articles or services that the President determines are “ essential to the
national security under defense coproduction agreements” ). Id. Any sanction that
is imposed shall apply for at least 12 months, and shall cease only upon a deter­
mination by the President, and certification to Congress, that reliable information
indicates that the foreign person under sanction has ceased to aid and abet the
activities described in subsection (a)(1). Id. §2410c(d). Twelve months after
imposing sanctions, the President may also waive further application of the sanc­
tions, if he determines and certifies to Congress that such a waiver is “ important
to the national security interests o f the United States.” Id. §2410c(e)(l).
We believe that § 2410c permits the President to delay making a determination
that would trigger sanctions. The statute permits a delay, however, only when
a delay is necessary to advance the policy of the statute by protecting intelligence
sources or methods used in counterproliferation activities.
We begin by considering whether § 2410c requires the President to make a
determination leading to the imposition o f sanctions when presented with appro­
priate facts, or merely grants him the discretion to make or to decline to make
such a determination in those circumstances. We conclude that §2410 does impose
a mandate that requires the President to make a determination when presented
with the appropriate facts. We then consider whether § 2410c permits the President
to delay making a determination required by the statute. We first review the text
and structure of § 2410c and related statutes. Finding that evidence inconclusive,
we turn to the legislative history and administrative construction of the statute.
Our review of that history establishes that the President has some discretion to
delay making the statutory determinations, if such a delay is necessary to protect
intelligence sources or methods used in detecting or preventing CBW proliferation.
II.
Our first question is whether § 2410c requires the President to make a deter­
mination that a foreign person has “ knowingly and materially contributed” to
prohibited CBW efforts if his subordinates present him with evidence that estab­
lishes that such a state of affairs exists, or whether the President has the discretion
to make or decline to make that determination in those circumstances. We believe
that the statute requires the President to make the determination.
It is often the case that “Congress may feel itself unable conveniently to deter­
mine exactly when its exercise o f the legislative power should become effective,
because dependent on future conditions, and it may leave the determination of
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Control and Warfare Elimination A ct o f 1991
such time to the decision of an Executive.” J.W. Hampton, Jr., & Co. v. United
States, 276 U.S. 394, 407 (1928). When it delegates the power, and prescribes
the duty, to make such determinations, the President may be considered “ the mere
agent of the law-making department to ascertain and declare the event upon which
its expressed will was to take effect.” Id. at 411. We believe that § 2410c casts
the President in such a role, and requires him to make a determination if the
facts available to him establish that the conditions described in the statute exist.4
The language and purpose of the CBW Act demonstrate that the President has
a duty to make determinations, not merely the discretion to do so. Section
2410c(a)(l) states that the President “ shall impose” the specified sanctions “ if
[he] determines” that the predicate facts exist (emphasis added). As discussed
at length in Part IV below, the legislative history confirms that this language man­
dates that sanctions be imposed (once the appropriate determinations are made).5
We have advised the National Security Council (“ NSC” ) that similar language
in a closely related export control statute gave the President very limited, if any,
discretion to delay or withhold making the predicate determination. See Memo­
randum to Files from Paul P. Colbom, Acting Deputy Assistant Attorney General
and Jacques deLisle, Attomey-Adviser, Office of Legal Counsel, Re: Presidential
Discretion to Make “Determinations” Concerning Foreign Countries (July 22,
1993) (the “ July 1993 Memo” ).
In the July 1993 Memo, we construed the missile technology control provisions
of the Export Administration Act (“ EAA” ), 50 U.S.C. app. §2410b(b), which
state that the President “ shall impose” sanctions “ if the President determines”
that a foreign person is engaged in the activities covered by the statute. We
advised that “ [r]eading the arguably indeterminate phrases ‘if the President deter­
mines’ and ‘if the President has made a determination’ as doing no more than
authorizing a discretionary determination would nearly make a nullity of
Congress’s apparently mandatory ‘shall impose’ language later in the section.”
July 1993 Memo at 3-4. Similarly here, it would defeat Congress’s fundamental
intent of ensuring that sanctions are imposed on foreign persons who are deter­
mined to be CBW Act proliferators,6 if the President could simply refuse to make
*Cf. Field v. Clark, 143 U.S. 649, 692-93 (1892); Florsheim Shoe Co. v. United States, 744 F.2d 787, 793-
94 (Fed. Cir. 1984) (construing statutes to mandate, not merely to authorize, presidential determinations o f fact).
5 In brief, the legislative record shows that, in 1990, President Bush pocket-vetoed a precursor o f the present
CBW Act, H.R. 4653, 101st Cong. (1990), on the ground that it left him with insufficient discretion to delay or
withhold sanctions. State Department officials in testimony before Congress emphasized the President's concerns
with a regime o f mandatory sanctions. Congress, however, was plainly unpersuaded that the President should have
discretion to withhold sanctions on foreign persons (i.e., companies) found to be CBW proliferators. At least three
Senators responded to President Bush's pocket veto o f H.R. 4653 by firmly rejecting the notion that “ automatic”
sanctions were potentially harmful. The final bill that passed Congress, H.R. 1415, 102d Cong. (1991), embodied
the Senators', rather than the President’s, policy preferences: it included provisions for mandatory sanctions. A suc­
cessor bill enacted soon thereafter, H.R. 1724, 102d Cong. (1991), which is now codified in relevant part as the
CBW Act, also mandated sanctions if the appropriate determinations were made.
6 As further discussed below, § 2410c permits the President to engage in consultations with the foreign country
having jurisdiction over the proliferator, before the sanctions must com e into effect. This provision qualifies, but
does not negate, the mandatory nature o f the sanctions.
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sanction-triggering determinations at all. Accordingly, we believe that the Presi­
dent has a duty to make the determinations specified in the statute if he is pre­
sented with sufficient evidence to compel that conclusion.7
III.
We next consider whether, notwithstanding that it imposes a mandatory duty
on the President to make the determination described in that section when pre­
sented with appropriate facts, § 2410c nonetheless affords the President with
discretion to delay making the determination when the delay is necessary to pro­
tect intelligence sources or methods used in counterproliferation. In this Part, we
analyze the text and structure o f the statute and related provisions, and find that,
without more, such analysis cannot decide the issue. In Parts IV and V, we review
the legislative and administrative history. We conclude that § 2410c does provide
such discretion, subject to the constraints explicated in Part VI.
A.
Section 2410c delegates to the President the power (and imposes the duty) to
make the determination that a foreign person has “ knowingly and materially”
contributed through exports to a proscribed country’s CBW efforts and to sanction
the foreign person for that conduct. Because the President possesses varied and
substantial constitutional powers in his own right in the field o f foreign affairs,8
congressional delegations of power to the President to act in that area are under­
stood to give him unusually wide-ranging powers.9 Moreover, the special institu­
tional capabilities of the executive branch — including its ability to respond
7 In construing the missile technology control statute at issue in the July 1993 Memo, we noted that the presence
o f a broad w aiver provision in that statute confirm ed o ur view that the statute contained a mandate rather than
a grant o f discretion. The CBW Act we construe here lacks a correspondingly broad w aiver provision. While such
a provision would certainly support our analysis, we find that in light o f the text o f the CBW Act and the persuasive
evidence o f congressional intent, the lack o f a waiver provision does not affect our conclusion that the President,
w ith limited exceptions, is required to make the determination prescribed under the CBW Act when presented with
appropriate facts.
8 See, e.g., Department o f the Navy v. Egan , 484 U.S. 518, 529 (1988) (Court has “ recognized ‘the generally
accepted view that foreign policy was the province and responsibility of the Executive.' " ) (quoting Haig v. Agee,
453 U.S. 280, 2 9 3 -9 4 (1981)); Alfred DunhiU o f London, Inc. v. Republic o f Cuba, 425 U.S. 682, 705 n.18 (1976)
( “ [T]he conduct o f [foreign policy] is committed primarily to the Executive Branch. . . .” ); United States v. Lou­
isiana, 363 U.S. 1, 35 (1960) (President is “ the constitutional representative o f the United States in its dealings
with foreign nations.” ); Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 109 (1948).
R elatedly, the President possesses significant constitutional powers to safeguard sensitive national security informa­
tion. See, e.g., Webster v. Doe, 486 U.S. 592, 605-06 (1988) (O ’Connor, J., concurring in part and dissenting in
part); Department o f the Navy v. Egon, 484 U .S. at 527; Haig v. Agee, 453 U.S. at 307-08; New York Times Co.
v. United States, 403 U.S. 713, 728-29 (1971) (Stewart, J., joined by W hite, J., concurring); Hill v. Department
o f Air Force, 844 F.2d 1407, 1411 (10th Cir.), cert, denied, 488 U.S. 825 (1988). He also possesses some measure
o f inherent pow er with respect to foreign commerce, see Barclays Bank PLC v. Franchise Tax B d , 512 U.S. 298,
329 (1994); see also Diversion o f Water From Niagara River, 30 Op. A tt’y Gen. 217, 221-22 (1913) (opining
that in absence o f legislation, the President m ay determine the conditions o f the importation of electrical power
from Canada).
9 See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 & n.2 (1952) (Jackson, J., concurring).
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flexibly to unforeseen contingencies and its access to sensitive information 10—
have provided practical reasons for Congress to confer broad delegations of power
over the conduct of foreign affairs to the President. “ [B]ecause of the changeable
and explosive nature of contemporary international relations, and the fact that the
Executive is immediately privy to information which cannot be swiftly presented
to, evaluated by, and acted upon by the legislature, Congress— in giving the
Executive authority over matters of foreign affairs — must of necessity paint with
a brush broader than that it customarily wields in domestic areas.” Zemel v. Rusk,
381 U.S. 1, 17 (1965).11 Thus, “ [b]oth Congress and the courts have traditionally
sought to avoid restricting the Executive unduly in matters affecting foreign rela­
tions because of the need for flexibility in this area and the fact that the Constitu­
tion entrusts the external affairs of the Nation primarily to the Executive.” Export
Sales o f Agricultural Commodities to Soviet Union and Eastern European Bloc
Countries, 42 Op. Att’y Gen. 229, 237-38 (1963). In light of these considerations,
we would not presume that, in delegating power under § 2410c, Congress has
sought to limit the President’s otherwise broad discretion, absent clear evidence
of such a congressional intent.12
The reasoning that supports the inference that Congress typically accords the
President broad discretion when it authorizes him to act in the field of foreign
affairs is equally applicable to the issue of timing. The “ changeable and explosive
nature of contemporary international relations,” Zemel v. Rusk, 381 U.S. at 17,
renders it difficult and sometimes impossible for Congress to gauge in advance
the immediate consequences of actions that it permits or requires the President
to take. In general, moreover, the authority “ to consider the foreign affairs rami­
10See Chicago & Southern Air Lines, Inc., 333 U.S. at 111 ( “ The President, both as Com m ander-in-Chief and
as the N ation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not
to be published to the w orld.” ); see also Harold H. Koh, Why the President (Almost) Always Wins in Foreign
Affairs: Lessons o f the Iran-Contra Affair, 97 Yale L.J. 1255, 1292 (1988).
11Accord Haig v. Agee , 453 U.S. at 292, United States v. Cuniss-Wrighi Export Corp., 299 U.S. 304, 320 (1936)
( “ [C ongressional legislation which is to be made effective through negotiation and inquiry w ithin the international
field must often accord to the President a degree o f discretion and freedom from statutory restriction which would
not be admissible were domestic affairs alone involved.” ); Palestine Info. Office v. Shultz, 853 F.2d 932, 937 (D.C.
Cir. 1988) (Mikva, J.), Sordino v. Federal Reserve Bank, 361 F.2d 106, 110 (2d Cir.) (Friendly, J.), cert, denied ,
385 U.S. 898(1966).
Relying on such reasons, the Ninth Circuit has upheld, against a nondelegation challenge, the authority o f the
executive branch to punish the unlicensed export o f goods under the EAA, despite the preclusion o f judiciai review
of administrative action.
The fact that the EAA involves matters o f foreign policy and national security also counsels in favor
o f upholding the A ct's preclusion o f judicial review. . . . Permitting Congress broadly to delegate decisions
about controlled exports to an agency makes sense; it would be impossible for Congress to revise the
[Commodity Control List] quickly enough to respond to the fast-paced developments in the foreign policy
arena. . . . [T]he Supreme Court has consistently emphasized that broad delegations are appropriate in
the foreign policy arena. . . .
United Stales v. Bozarov, 974 F.2d 1037, 1044 (9th Cir. 1992), cert, denied , 507 U.S. 917 (1993); see also Duracell,
Inc. v. U.S. Int’l Trade Commn, 778 F.2d 1578, 1582 & n.13 (Fed. Cir. 1985).
12 See Presidential Authority to Adjust Ferroalloy Imports Under §232(b) o f the Trade Expansion Act o f 1962,
6 Op. O.L.C. 557, 562 (1982) (A statutory requirement that the President, after receiving a Report from the Secretary
o f Commerce that imports o f materials into United States threatened national security, either adjust imports or reject
the Secretary’s findings, allowed the President to defer decision by “ retain[ing] the Report for further consideration,”
because “ [n]o time frame constrains the President.” )-
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fications of a particular mode of [statutory] enforcement and to suspend
implementation [of the statute] to avoid a confrontation,” is, “ [i]n the absence
of a statutory mandate or express prohibition,” to “ be found in the inherent and
well recognized powers of the executive branch.” Olegario v. United States, 629
F.2d 204, 226 (2d Cir. 1980), cert, denied, 450 U.S. 980 (1981). A rule of
construction that accords the President reasonable discretion over timing, in the
absence of evidence of contrary legislative intent, is thus most consistent with
the ordinary relationship between the President and Congress in foreign affairs.
Furthermore, as a general rule of administrative law, an agency may be under
a statutory mandate to perform a certain act, and yet retain some discretion over
the timing o f the performance o f that act: the rule is that it must proceed in a
reasonably timely manner. Furthermore, an agency may be operating under a statu­
tory provision that regulates the timing o f its performance, and yet not be wholly
devoid o f statutory discretion to delay the performance beyond the statutory dead­
line.13 A nondiscretionary duty of timeliness ordinarily exists only when the
statute “ ‘categorically mandates]’ that all specified action be taken by a date-
certain deadline.” Sierra Club v. Thomas, 828 F.2d 783, 791 (D.C. Cir. 1987)
(quoting NRDC v. Train, 510 F.2d 692, 712 (D.C. Cir. 1974)). “ [I]t is highly
improbable that a deadline will ever be nondiscretionary, i.e. clear-cut, if it exists
only by reason of an inference drawn from the overall statutory framework.” Id.
at 791.
To be sure, if “ the statutory language itself contained] [a] direction to the
[President] automatically and regardless of the circumstances” to make the deter­
mination upon a certain event, Japan Whaling A ss’n v. American Cetacean Soc’y,
478 U.S. 221, 233 (1986), then the President might well be unable to delay making
the determination.14 Assuming, however, that Congress chose not to dictate the
timing o f the determinations that trigger sanctions, then § 2410c could be con­
strued to permit the President some discretion in the timing of a determination,
at least in certain cases.
In light o f these general considerations — that delegations of foreign policy
powers to the President must be construed broadly, and that in the absence of
a specific duty to make determinations within a fixed time-frame, the President
has discretion to delay a determination for a reasonable period— we would not,
absent countervailing reasons, read § 2410c to impose a duty on the President
13 See, e.g.. Cutler v. Hayes, 818 F.2d 879, 896-98 (D.C. Cir. 1987); Presidential Authority to Extend Deadline
fo r Submission o f an Emergency Board Report Under the Railway Labor Act, 14 Op. O.L.C. 57, 59-60 (1990)
(discussing interpretation o f current statutory timeliness requirements).
u The statute at issue in Japan Whaling Association required the Secretary of Commerce to “ periodically monitor
the activities o f foreign nationals that may affect [international fishery conservation program s]," id. at 226 (alteration
in original) (quoting 22 U.S.C. § 1978(a)(3)(A)), “ promptly investigate any activity by foreign nationals that . . .
may be cause for certification [that a foreign country’s actions had diminished the effectiveness of an international
whaling c o n v en tio n ]/’ id. (quoting 22 U.S.C. § 1978(a)(3)(B)), and “ promptly conclude; and reach a decision with
respect to; [that] investigation.” Id. (alteration in original) (quoting 22 U.S.C. § 1978(a)(3)(C)). The Court had no
difficulty in concluding that this language required the Secretary to make a certification decision promptly. Id. at
232.
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to act other than in a reasonably timely manner. But the analysis cannot end there.
The text of § 2410c and related statutes, coupled with the legislative history,
clearly imply that there are some constraints on the President’s discretion to delay
making a determination. We begin by reviewing the textual and structural argu­
ments for the view that § 2410c in fact gives the President little or no discretion
to delay making determinations.
B.
First, as we have already noted, §2410c(a)(l) clearly imposes a duty: it states
that the President “ shall impose” the specified sanctions “ if [he] determines”
that the predicate facts exist (emphasis added). “ Shall” here undoubtedly
expresses a mandate.15 The duty to impose sanctions after a determination has
been made suggests that there are limits on the President’s authority to postpone
making the determination, once the facts relevant to the determination are before
him.
Second, the remainder of § 2410c confirms that Congress did seek to limit, in
fact rather sharply, the President’s discretion over the timing of his determinations.
The section expresses the sense of Congress that the President, after making a
determination, “ immediately” consult with the foreign country that has jurisdic­
tion over the proliferator, and authorizes a 90-day delay in imposing sanctions
to permit consultations with that country to go forward. A further 90-day delay
is permitted upon an appropriate certification to Congress that the consultations
are going forward. The fact that consultations are to occur “ immediately” after
the determination, and that there can be delays in imposing sanctions for up to
180 post-determination days to allow the consultations to proceed, suggests that
Congress intended to accommodate, structure and delimit the President’s ability
to conduct diplomacy and to take account of foreign policy concerns before being
bound to impose sanctions. Outside that statutory framework, however, it appears
that discretion to withhold sanctions— and to postpone making the determinations
that triggered them — was to be limited or non-existent. Given the breadth of
Congress’s power over foreign commerce, such limitations on the President’s
discretion are not on their face invalid.
Third, in 1991, Congress codified CBW sanctions not only in the provisions
at issue in title 50 appendix, but also in title 22.16 Thus, § 2 4 10c is in pari materia
with the title 22 provisions. The latter provisions deal both with foreign govern­
ments and foreign persons. As noted earlier, the provisions of § 2798 of title 22,
15 See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 432 (1995); id. at 438-39 (Souter, J., dissenting). The
legislative history (reviewed more fully in Part HI below) underscores the nondiscretionary nature of the sanctions
that the language o f § 2410c conveys.
16 Indeed, the relevant provisions in title 22, like those in title 50 appendix, were enacted as part of the Foreign
Relations Authorization Act, Fiscal Years 1992 and 1993, Pub. L. No. 102-138, §505, 105 Stat. 647, 724 (“ FRA ” ),
and superseded by virtually identical provisions in the CBW , Pub. L. No. 102-182, §305(b), 105 Stat. at 1250.
These tw o 1991 enactments are discussed further in Part IV below.
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dealing with foreign persons, are virtually identical to the provisions of § 2410c
o f title 50 appendix.17 Section 5604(a)(1) of title 22,18 which deals with the con­
duct of foreign governments, sets a specific, 60-day time limit for making presi­
dential determinations after “ persuasive information” becomes available to the
executive branch that a foreign government is or has engaged in prescribed CBW
uses.19 Nothing nearly so stringent was written into § 2410c, inviting the inference
that the President is less time-constrained in making determinations under that
section. On the other hand, 22 U.S.C. § 5605(d) authorizes the waiver of most
of the sanctions imposed under that section if the President certifies to Congress
that such waiver “ is essential to the national security interests of the United
States.” Id. §5605(d)(l)(A)(i). N o such waiver authority is given in the case of
foreign person sanctions under title 50 appendix.20 Thus, in the companion statutes
to § 2410c, Congress limited the President’s discretion over the timing of sanction-
triggering determinations much more closely and explicitly, but also gave the
President far broader power to waive sanctions. Overall, it appears to us, the Presi­
dent has broader discretion under the title 22 CBW provisions than under those
in title 50 appendix. This outcome, we believe, reflects Congress’s judgment that
the President’s constitutional foreign policy prerogatives are more deeply
implicated, and so must be left less closely regulated, when country sanctions,
rather than foreign person sanctions, are to be applied.
C.
The textual and structural analysis of § 2410c and related statutes is inconclu­
sive. On the one hand, there are strong arguments that the President is not wholly
without discretion to delay making such determinations: the rule o f statutory
construction relating to delegations of foreign policy power, coupled with the
absence of a detailed time-frame in § 2410c for making determinations, and the
general rule that administering agencies are allowed reasonable delays in such
matters, suggest that the President’s discretion is by no means non-existent. On
the other hand, there are also strong arguments for concluding that the statute
leaves the President with little or no discretion to delay making § 2410c determina­
tions.
17 See supra notes 1,3.
l8This section originated as section 506 o f the FRA, Pub. L. No. 102-138, 105 Stat. at 730, and was replaced
by section 306 o f the CBW , Pub. L. No. 102-182, 105 Stat. at 1252.
19 The suggested dichotomy between foreign persons and foreign governments may operate imprecisely when the
actions o f foreign parastata) entities are at issue. W hether either o r both sanctions’ regime? should be invoked in
response to the conduct o f such entities will depend on the particular facts and circumstances o f each case.
“ Section 2410c does not, in terms, include any “ w aiver” authority until after sanctions have been applied for
at least 12 months. Implicit w aiver authority may be found in §2410c(c)(2), entitled “ Exceptions,” which states
that the President “ shall not be required to apply or m aintain” sanctions if certain conditions hold.
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Given the uncertainty that remains after this examination of the statutory text
and structure, we tum in the next Part to a consideration of the legislative and
administrative history of § 2410c.
IV.
Section 2410c codifies section 305 of the CBW, 105 Stat. at 1247. It is virtually
identical to a statute adopted very shortly before by the same Congress, the For­
eign Relations Authorization Act, Fiscal Years 1992 and 1993, Pub. L. No. 102-
138, § 505(a), 105 Stat. at 724.21 Section 309(a) of Pub. L. No. 102-182 repealed
the earlier version. See CBW, 105 Stat. at 1258.
Both Congress and the Bush Administration had desired the adoption of CBW
nonproliferation legislation even before 1991, but differed sharply over particular
proposals. In 1990, Congress passed H.R. 4653, title IV of which (the Omnibus
Export Amendments Act of 1990), was substantially the same as both current
§ 2410c and that section’s immediate (but short-lived) precursor, title V of Pub.
L. No. 102-138.22 President Bush pocket-vetoed H.R. 4653.23 In his memorandum
of disapproval of November 16, 1990, President Bush declared his support for
the “ principal goals” of H.R. 4653, but objected to provisions that, in his judg­
ment, “ unduly interfere[d] with the President’s constitutional responsibilities for
carrying out foreign policy.” 24 He identified as “ [t]he major flaw” in H.R. 4653
“ not the requirement of sanctions, but the rigid way in which they are
imposed.” 25 In lieu of signing H.R. 4653, President Bush issued an executive
21 Although there were minor differences, Pub. L. No. 102-138 closely resembled the successor statute, Pub. L.
No. 102-182. See Statement on Signing Legislation on Trade and Unemployment Benefits, 2 Pub. Papers o f G eorge
Bush 1543, 1544 (Dec. 4, 1991) ( “ This Act is virtually identical to Title V o f Public Law 102-138, which I signed
into law on October 28, 1991. The only significant difference is the addition o f import sanctions to the list o f
sanctions that are to be imposed and corresponding additions to the Presidential waiver provisions.'*); 137 Cong.
Rec. 35,408 (1991) (remarks o f Rep. McCurdy) ( “ [T]he conference report on H.R. 1724 contains virtually all o f
the provisions on chemical and biological weapons proliferations found in the conference report on H.R. 1415, the
State Department authorization for fiscal years 1992 and 1993.” )-
22 Section 423(a) o f H.R. 4653, as enrolled and presented to the President, was virtually identical to § 2410c.
Section 423(a) differed from what is now current law only in two minor respects. First, it did not provide that
among the foreign countries, projects, o r entities whose CBW efforts it was sanctionable to assist were those des­
ignated by the President, as under §2410c(a)(2)(C). Second, it did not authorize an additional 90-day delay period
for consultation with the foreign government o f jurisdiction before sanctions had to be imposed, as in §2410c(b)(2).
23 See H.R. Conf. Rep. No. 102-238, at 154 (1990), reprinted in 1991 U.S.C.C.A.N. 439, 496.
24Memorandum o f Disapproval for the Omnibus Export Amendments Act o f 1990, 2 Pub. Papers o f George Bush
1619 (Nov. 16, 1990).
25Id. The State Department had expressed objections to nondiscretionary sanctions early in the Bush A dministra­
tion, during hearings in 1989 before the House Foreign Affaire Committee. See Chemical Weapons Proliferation:
Hearing and Markup o f H.R. 3033 Before the House Comm, on Foreign Affairs and its Subcomms. on Arms Control,
International Security and Science, and on International Economic Policy and Trade, 101st Cong. 18 (1989) (col­
loquy between Chairman Dante Fascell and Assistant Secretary o f State H. Allen Holmes). The State Department
repeated its objections in a letter from Secretary o f State James Baker to Senator Jesse Helms, relating to the Senate
CBW bill, S. 195, 101st Cong. (1989). See Letter for Senator Jesse Helms from James D. Baker, Secretary of
State (Oct. 16, 1990), reprinted in 136 Cong. Rec. 35,688 (1990).
In response. Senator Helms defended the Senate bill’s provisions (which resemble later-enacted law) for nondis­
cretionary sanctions against foreign corporate CBW proliferators. He argued that “ the Senate version is very tightly
Continued
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order, Executive Order No. 12735,26 that directed the imposition of the sanctions
contained in H.R. 4653, and that implemented new chemical and biological
weapon export controls.27
Early the following year, during the debate on S. 320, 102d Cong. (1991) the
“ Omnibus Export Administration Act of 1991,” several Senators criticized Presi­
dent Bush’s pocket-veto of H.R. 4653. Senator Riegle, for example, disagreed
with President Bush’s position in the pocket-veto message “ that imposing
nonwaivable sanctions on companies that knowingly and materially assist in the
development of chemical or biological weapons for use by countries that use them
in violation o f international law is unjustifiable.” 137 Cong. Rec. 3777 (1991).
He stated that “ [w]e simply must take a tough stand if we are to rid the world
o f the threat o f such weapons.” Id.2S
Later in 1991, Congress adopted H.R. 1415 which, as noted, was in all relevant
respects the same as both the earlier, pocket-vetoed bill, H.R. 4653, and current
§ 2410c. President Bush signed H.R. 1415 into law as Pub. L. No. 102-138 on
October 28, 1991. President Bush issued a signing statement on that occasion 29
As to the chemical and biological weapons provision in the legislation, the Presi­
dent stated:
Title V, Chemical and Biological Weapons (CBW), raises con­
cerns with respect to both the President’s control over negotiations
with foreign governments and the possible disclosure of sensitive
information. Title V’s provisions establish sanctions against foreign
companies and countries involved in the spread or use of chemical
and biological weapons. Title V demonstrates that the Congress
endorses my goal of stemming dangerous CBW proliferation. In
draw n so that it applies sanctions only to violators who meet specific norms. I cannot imagine why my good friend,
the Secretary, o r the President, would ever w ant the flexibility to exempt a corporation that is guilty o f proliferation
o f chem ical and biological weapons and technology.’* 136 Cong. Rec. at 35,690. Senator Helms also explained,
in a m anner that sheds some light on the existing statute, the procedure for making presidential determinations:
“ [u]nder both the House and Senate bills, before sanctions can be imposed upon a foreign company, the President
m ust first determ ine that the company had knowingly and either materially or substantially assisted the chemical
or biological w eapons program of Iraq o r certain other outlaw nations. This is not an easy standard, and whether
a com pany has met this standard is left to the discretion and judgm ent of the President.” Id. at 35,689.
26 See Exec. O rder No. 12735, 3 C.F.R. 313 (1991) reprinted in 50 U.S C § 1701 note (1994).
27 As President Bush characterized it, E xec. Order No. 12735 “ sets forth a clear set o f stringent sanctions, while
encouraging negotiations with our friends and allies. It imposes an economic penalty on companies that contribute
to the spread o f these weapons and on countries that actually use such weapons or are making preparations to
do so. A t the sam e time, it allows the President necessary flexibility in implementing these sanctions and penalties.”
2 Pub. Papers o f G eorge Bush at 1619-20 (N ov. 16, 1990).
28 Senator Helms and Senator Heinz also criticized the pocket veto. See J 37 Cong. Rec. at 3780 (1991) (remarks
o f Sen. H elms); id. at 3781 (remarks of Sen. Heinz). An Administration witness before the Senate Foreign Relations
Com m ittee in M ay, 1991, reiterated the A dm inistration’s constitutional and foreign policy objections to specific
m andatory sanctions. See Status of 1990 Bilateral Chemical Weapons Agreement and Multilateral Negotiation on
Chemical Weapons Ban: Hearing Before the Senate Comm, on Foreign Relations, 102d Cong. 19 (1991) (remarks
o f A m bassador Ronald F. Lehman, Director, U.S. Arms Control and Disarmament Agency). Nonetheless, the Presi­
dent did ultim ately sign a bill that provided only limited w aiver authority.
29 Statement on Signing the Foreign Relations Authorization Act, Fiscal Years 1992 and 1993, 2 Pub. Papers
o f G eorge Bush 1344 (Oct. 28, 1991).
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Control and Warfare Elimination Act o f 1991
signing this Act, it is my understanding, as reflected in the legisla­
tive history, that title V gives me the flexibility to protect intel­
ligence sources and methods essential to the acquisition o f intel­
ligence about CBW proliferation. In part, such flexibility is avail­
able because title V does not dictate the timing o f determinations
that would lead to sanctions against foreign persons.30
The legislative history to which President Bush referred appears to be a col­
loquy of October 8, 1991, between Representatives McCurdy and Berman.31 Rep­
resentative McCurdy was, at the time, Chair of the House Permanent Select Com­
mittee on Intelligence; Representative Berman was Chair of the Subcommittee
on International Operations of the House Committee on Foreign Affairs. Because
of its importance, the colloquy must be quoted at some length:
Mr. McCURDY . . . I would like to clarify the provisions in
H.R. 1415 that amend the Export Administration Act and the Arms
Export Control Act to provide for sanctions against foreign compa­
nies involved in the development or production of chemical and
biological weapons. These provisions mandate sanctions once the
President makes a determination that a foreign person has “ know­
ingly and materially” contributed to the efforts by any foreign
country to develop or use biological or chemical weapons.
I strongly endorse this effort to sanction foreign companies
involved in the proliferation o f chemical and biological weapons.
I rise to clarify one point concerning the Presidential determinations
called for in these provisions. It has come to my attention that,
in rare circumstances, a premature determination might inhibit the
flow of information which is necessary to the full imposition of
sanctions against all violators. It seems to me that the President
should be allowed to delay such a determination where it is nec­
essary to protect intelligence sources and methods which are being
30Id. at 1345 (emphasis added).
31 We note also that Congress had been advised in 1989, when considering earlier legislative proposals to sanction
CBW proliferation, o f the need to protect intelligence methods and sources. Testifying before the Senate Foreign
Relations Committee, the Director o f the Central Intelligence Agency, William Webster, answered a question from
Senator Helms by saying, in part:
1 think we have to find a way o f using our intelligence, protecting our sources and our methods, so
that we continue to collect intelligence, but to form a basis on which those laws [c]an be triggered, if
they are passed.
I do not mean to be too obscure in what 1 am saying. You can develop sanctions, but the proof o f
the sanctions will depend upon some form o f evidence, and some o f the intelligence that we have is not
readily convertible into evidence.
Chemical and Biological Weapons Threat: The Urgent Need for Remedies: Hearings Before the Senate Comm. on
Foreign Relations, 101st Cong. 45 (1989).
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used to acquire further, possibly more important, information on
CBW proliferation.
Is it your understanding that the protection o f intelligence sources
or methods for the stated purpose may be a factor in deciding on
the timing of a Presidential determination that a foreign person is
contributing to CBW proliferation?
Mr. BERMAN . . . [I]t is my understanding that the President,
in rare circumstances, could delay a determination that a foreign
person has knowingly and materially contributed to CBW prolifera­
tion if such a delay is necessary to protect intelligence sources or
methods essential to the acquisition of further intelligence about
CBW proliferation. Such a delay would be appropriate, for
example, where the United States is using the sensitive intelligence
sources or methods to gather information on other CBW
proliferators, or where additional time is needed to develop nonsen­
sitive information that could be used to explain publicly the imposi­
tion o f sanctions. However, such a delay should not be indefinite,
because the ultimate purpose of these provisions is to sanction those
foreign persons that w e know to be knowingly and materially
involved in CBW proliferation. Moreover, the delay should only
be for the purpose of furthering our policy o f sanctioning those
proliferators. A delayed determination would not be justified to fur­
ther any other policy.
137 Cong. Rec. 25,841 (1991).
Very shortly afterward, Congress enacted substantially the same chemical and
biological weapons provision by passing H.R. 1724 (signed into law as Pub. L.
No. 102-182 on December 4, 1991). On November 26, 1991, after the submission
o f the Conference Report on that legislation to the House of Representatives, Rep­
resentative McCurdy inserted into the record the entirety of his October 8, 1991,
colloquy with Representative Berman, to clarify that the President would have
the same authority under H.R. 1724 to protect intelligence sources or methods
that he had under Pub. L. No. 102-138. See 137 Cong. Rec. 35,408 (1991).
President Bush signed H.R. 1724 on December 4, 1991. In his signing statement,
he pointed out that “ [t]his Act is virtually identical to Title V of Public Law
102-138, which I signed into law on October 28, 1991,” and affirmed that “ [t]he
observations regarding Title V of Public Law 102-138 that I made upon signing
that bill into law are equally applicable to the Act I am signing today.” 32
32 2 Pub. Papers o f George Bush at 1544 (Dec. 4, 1991).
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We believe that this legislative and administrative history establishes that Con­
gress intended to give the President discretion to delay, temporarily, the making
of § 2410c determinations, when such a delay is necessary to protect intelligence
sources or methods used to further CBW nonproliferation activities.
When the Chemical and Biological Weapons Control and Warfare Elimination
Act of 1991 was enacted into law as part of the Foreign Relations Authorization
Act, the President’s signing statement pointedly construed the statute, in light of
its legislative history, to give him “ the flexibility to protect intelligence sources
and methods essential to the acquisition of intelligence about CBW prolifera­
tion.” 33 Only a few weeks after the President had published this administrative
construction, Congress enacted a virtually identical statute as part of the Chemical
and Biological Weapons Control and Warfare Elimination Act of 1991, Pub. L.
No. 102-182. On signing the latter Act, the President reiterated the construction
he had placed upon its immediate precursor.34 Although Congress had the oppor­
tunity to override or modify the President’s construction, it chose instead to enact
a virtually identical measure.
The President’s October 28, 1991, construction of §2410c is, under the par­
ticular circumstances of this case, authoritative. Congress was undoubtedly aware
of this interpretation, which was prominently set forth in the President’s signing
statement of that date. Moreover, the October 8, 1991, colloquy between Rep­
resentative McCurdy and Representative Berman, and the republication of that
colloquy by Representative McCurdy on November 26, 1991, establish that Con­
gress acted in the belief that the President would retain some measure of discretion
to delay making the statutory determinations. In our judgment, Congress’s decision
to enact the CBW provision of Pub. L. No. 102-182 in November 1991, without
in any way disturbing the interpretation set out by the President and by Represent­
atives McCurdy and Berman in October 1991, constitutes a ratification of that
interpretation.35
33 2 Pub. Papers o f George Bush at 1345 (Oct. 28, 1991).
M 2 Pub. Papers o f George Bush at 1543-44 (Dec. 4, 1991).
35 See, e.g., North Haven Bd. o f Educ. v. Bell, 456 U.S. 512, 535 (1982); FEA v. Algonquin SNG, Inc., 426
U.S. 548, 567-68, 570-71 (1976).
Moreover, even apart from the earlier legislative and executive branch pronouncements, the President’s December
9, 1991, signing statement would be entitled to some weight in construing § 2 4 10c. “ The President, after all, has
a part in the legislative process, too, except as to bills passed over his veto, and his intent m ust be considered
relevant to determining the meaning o f a law in close cases.” United States v. Tharp , 892 F.2d 691, 695 (8th
Cir. 1989) (Arnold, J.). See generally The Legal Significance o f Presidential Signing Statements 17 Op. O.L.C.
131 (1993). Reliance on a presidential signing statement may be particularly appropriate when (as here) the executive
branch has played a significant role in developing the legislation. See, e.g., United States v. Story, 891 F.2d 988,
994 (2d Cir. 1989); cf. Miller v. Youakim, 440 U.S. 125, 144 (1979). As a general matter, of course, the contempora­
neous construction o f a statute by the administering officials — in this case, the President — is to be accorded substan­
tial deference. See, e.g.. Power Reactor Dev. Co. v. International Union o f Elec., Radio and Mach. Workers, 367
U.S. 396, 408(1961).
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V.
We are mindful of the fact that not all of the legislative history o f § 2410c
supports our conclusion. We understand that the CIA made several attempts
through informal communications with the House and Senate Foreign Affairs
Committees to include a waiver provision or other mechanism for protecting intel­
ligence sources and methods in the bill. These efforts ultimately were unsuccess­
ful.
Though we give due weight to the fact that Congress was aware of the issue,
the House Foreign Affairs Committee’s failure or refusal to include in H.R. 1415
(or, for that matter, in the successor bill, H.R. 1724) the specific language that
the CIA requested does not, in our view, undercut the claim that the President
may temporarily delay making a determination to protect counterproliferation
sources or methods. As the courts have said, any inferences based on congres­
sional silence of this kind are highly problematic. “ The advocacy of legislation
by an administrative agency — and even the assertion of the need for it to accom­
plish a desired result— is an unsure and unreliable, and not a highly desirable,
guide to statutory construction.” American Trucking Ass’ns v. Atchison, T. & S.F.
Ry., 387 U.S. 397, 418 (1967); see also Rastelli v. Warden, Metro. Correctional
Ctr., 782 F.2d 17, 24 n.3 (2d Cir. 1986). Moreover, the evidence indicates that
Congress did not reject the CIA’s concept, even if it did not write the CIA’s
language into the bill.36 The McCurdy-Berman colloquy reflects Congress’s intent
in passing H.R. 1415, and we are aware of nothing in the record that contradicts
it. Beyond that, the enactment o f H.R. 1724 after Representatives McCurdy and
Berman had clarified the President’s authority to protect counterproliferation
sources or methods and after President Bush’s October 28 signing statement had
affirmed that he had such authority demonstrates clearly, in our view, that Con­
gress accepted such an interpretation as correct.
VI.
Although we have concluded that the President has some discretion to delay
a determination under §2410c(a)(l), we emphasize that this discretion is not
unlimited. In our judgment, the legislative history and administrative construction
o f the CBW Act, reviewed above, make clear that, except in extreme cir­
cumstances as discussed below, the President may delay making a § 2410c deter­
mination only for the purpose o f advancing the counterproliferation policy of the
statute (and not, e.g., for other foreign policy or intelligence-related reasons). More
specifically, again with the exception noted below, we think that any delay is
permissible only if the delay is necessary to protect intelligence sources or
methods used in counterproliferation activities. These limitations are reflected both
36 W e note that neither H ouse o f Congress voted on and rejected the proposed language.
320
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Presidential Discretion to Delay Making Determinations Under the Chemical and Biological Weapons
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in President Bush’s signing statement and in the colloquy between Representatives
McCurdy and Berman, which apparently informed President Bush’s interpretation
of the statute.37
VII.
We have also been asked to consider whether the President can delay making
a sanctions determination when no reasonable alternative means exist to protect
the life of an intelligence source. We conclude that he can.
We believe that the President has the right, and indeed the duty, to protect
the life of an intelligence source in such circumstances. This responsibility is
rooted both in statutory law and in the President’s constitutional authority to pro­
tect national security.38 The President’s obligations towards any intelligence
source whose life would be at risk in this case if a determination were made
are thus in direct conflict with the President’s obligations under the CBW Act
not to delay making a determination indefinitely, once the evidence establishes
that a violation has taken place. Faced with such unavoidably conflicting obliga­
tions, we believe that the President may reasonably and lawfully conclude that
the obligation to preserve the life of the source should prevail.
As a constitutional matter, the President, as Commander in Chief, has the
inherent authority to employ sources for gathering intelligence needed to protect
the national security of the United States.39 The Executive’s authority to gather
intelligence information, and the related authority to protect the sources and
methods used in gathering it,40 were codified in the National Security Act of 1947,
ch. 343, 61 Stat. 495 (codified as amended at 50 U.S.C. §§401-441d) (“ NSA” ).
The NSA established the CIA and prescribed its responsibilities. In its current
form, the statute declares that “ the Director of Central Intelligence shall be
responsible for providing national intelligence . . . to the President” and to other
high-ranking civilian and military officers in the executive branch. 50 U.S.C.
§403-3(a)(l)(A ), (B). Furthermore, the Director “ shall . . . protect intelligence
37 The colloquy is quoted ui full supra pp. 16-17.
38 In situations in which the lives o f American citizens are in peril, indeed, the Supreme Court has suggested
that the President has a constitutional duty to rescue them. See Slaughter-House Cases, 83 U.S. (16 W all.) 36,
79 (1872). Under the so-called Hostages Act, 22 U.S.C. §1732, the President also has a statutory duty in some
circumstances to rescue American citizens held abroad. See Worthy v. Herter, 270 F.2d 905, 910 (D.C. C ir.) cert,
denied, 361 U.S. 918 (1959).
39 See Totten v. United States, 92 U.S. 105, 106 (1876) (The President “ was undoubtedly authorized during (he
[Civil] war, as commander-in-chief of the armies o f the United States, to employ secret agents to enter the rebel
lines and obtain information respecting the strength, resources, and movements o f the enemy.” ). Warrantless Foreign
Intelligence Surveillance— Use o f Television— Beepers, 2 Op. O.L.C. 14, 15 (1978) (The President has the “ constitu­
tional power to gather foreign intelligence.” ).
40See New York Times Co. v. United States, 403 U.S. 713, 729-30 (1971) (Stewart, J., joined by W hite, J.,
concurring) (It is the executive branch’s “ constitutional duty” to “ protect the confidentiality necessary to carry
out its responsibilities in the fields o f international relations and national defense.” ).
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sources and methods from unauthorized disclosure.” Id. § 403-3(c)(6). The
Director is specifically charged to
provide overall direction for the collection of national intelligence
through human sources by elements of the intelligence community
authorized to undertake such collection and, in coordination with
other agencies of the Government which are authorized to under­
take such collection, ensure that . . . the risks to the United States
and those involved in such collection are minimized.
Id. § 403-3(d)(2) (emphasis added).41
In CIA v. Sims, 471 U.S. 159 (1985), a case decided before the National Security
Act was amended to include the language quoted immediately above, the Supreme
Court considered the nature and scope of the Agency’s responsibilities to protect
its intelligence sources. Sims was an action under the Freedom of Information
Act (“ FOIA” ) to compel the Agency to disclose the names of individual
researchers who had worked on an Agency-funded project. In declining to make
such disclosure, the Agency relied on section 102(d)(3) of the NSA, a precursor
of current 50 U.S.C. § 403-3(c)(6). That section, formerly codified as 50 U.S.C.
§ 403(d)(3), provided that the Director “ shall be responsible for protecting intel­
ligence sources and methods from unauthorized disclosure.” NSA, § 102(d)(3),
61 Stat. at 498. The Court held that the Director was indeed authorized to withhold
the identities o f the researchers from disclosure under FOIA. Sims, 471 U.S. at
177.
In reaching that conclusion, the Court repeatedly emphasized the breadth of
the Agency’s power and responsibility to protect the identities of its sources. It
stated that:
Congress chartered the Agency with the responsibility of coordi­
nating intelligence activities relating to national security. In order
to carry out its mission, the Agency was expressly entrusted with
protecting the heart of all intelligence operations— “ sources and
methods.”
Id. at 167 (footnote omitted).
Congress vested in the Director of Central Intelligence very broad
authority to protect all sources of intelligence information from
disclosure.
41 The duties and powers o f the Director under the National Security Act are generally subject to the control
o f the President and exercised under the President's authority as C hief Executive. See generally Steven G. Calabresi
and Saikrishna B. Prakash, The President’s Power to Execute the Laws , 104 Yale L.J 541, 595-96 (1994).
322
Presidential Discretion to Delay M aking Determinations Under the Chemical and Biological Weapons
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Id. at 168-69.
Congress entrusted this Agency with sweeping power to protect its
“ intelligence sources and methods.”
Id. at 169.
Section 102(d)(3) specifically authorizes the Director of Central
Intelligence to protect “ intelligence sources and methods” from
disclosure. Plainly the broad sweep of this statutory language com­
ports with the nature of the Agency’s unique responsibilities. . . .
[T]he Director must have the authority to shield those Agency
activities and sources from any disclosures that would unnecessarily
compromise the Agency’s efforts.
Id.
The “ statutory mandate” of § 102(d)(3) is clear: Congress gave the
Director wide-ranging authority to “ protec[t] intelligence sources
and methods from unauthorized disclosure.”
Id. at 177 (alteration in original).
The Court also found substantial support in the legislative and administrative
history of the Act for its view that the Director had “ broad power to protect
the secrecy and integrity of the intelligence process,” because “ without such
protections the Agency would be virtually impotent.” Id. at 170. It stated:
Congress was . . . well aware of the importance of secrecy in
the intelligence field. Both General Vandenberg and Allen Dulles
testified about the grim consequences facing intelligence sources
whose identities became known. Moreover, Dulles explained that
even American citizens who freely supply intelligence information
“ close up like a clam” unless they can hold the Government
“ responsible to keep the complete security of the information they
turnover. . . . ”
Against this background highlighting the requirements of effec­
tive intelligence operations, Congress expressly made the Director
of Central Intelligence responsible for “ protecting intelligence
sources and methods from unauthorized disclosure.” This language
stemmed from President Truman’s Directive of January 22, 1946,
11 Fed. Reg. 1337, in which he established the National Intelligence
Authority and the Central Intelligence Group, the Agency’s prede-
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cessors. . . . The fact that the mandate of § 102(d)(3) derives from
this Presidential Directive reinforces our reading of the legislative
history that Congress gave the Agency broad power to control the
disclosure of intelligence sources.
Id. at 172-73 (citation omitted).
Finally, in rejecting the court of appeals’ position that the Agency’s authority
to protect sources applied only to sources who provided information unobtainable
without a guarantee of confidentiality, the Court underscored the “ harsh realities”
o f intelligence-gathering and the “ dangerous consequences” of a more permissive
disclosure rule. Id. at 174.
This forced disclosure o f the identities of its intelligence sources
could well have a devastating impact on the Agency’s ability to
carry out its mission. “ The Government has a compelling interest
in protecting both the secrecy of information important to our
national security and the appearance of confidentiality so essential
to the effective operation of our foreign intelligence service.”
Snepp v. United States, 444 U.S. 507, 509, n.3 (1980) (per curiam).
See Haig v. Agee, 453 U.S. 280, 307 (1981). If potentially valuable
intelligence sources come to think that the Agency will be unable
to maintain the confidentiality of its relationship to them, many
could well refuse to supply information to the Agency in the first
place.
Id. at 175.
As stated above, the National Security Act has been amended since Sims was
decided. The Intelligence Organization Act o f 1992, Pub. L. No. 102-496, §§701-
706, 106 Stat. 3180, 3188, added a new section 103 to the National Security Act.
Id. sec. 705(a), § 103, 106 Stat. at 3190. New section 103(c)(6) of the NSA, see
50 U.S.C. §403-3(c)(6), states that the Director “ shall . . . protect intelligence
sources and methods from unauthorized disclosure.” Former, section 102(d)(3),
see 50 U.S.C. §403, the provision construed in Sims, had stated in virtually iden­
tical terms that the Director “ shall be responsible for protecting intelligence
sources and methods from unauthorized disclosure.” The language of the current
statute, if anything, demonstrates even more clearly that the Director has an
affirmative obligation to protect sources: it states that the Director “ shall” protect
such sources, not that he only “ shall be responsible” for their protection.42 Thus,
42 M oreover, the legislative history of th e 1992 provision reveals that Congress was aware o f the Sims decision
and, while not expressly ratifying it, also d id not intend to disturb it. In explaining the current provision, the House
C onference Report stated that
the conferees wish to m ake clear that by including w ithin the responsibilities o f the Director of Central
Intelligence the responsibility to protect intelligence sources and methods from unauthorized disclosure,
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Presidential Discretion to Delay Making Determinations Under the Chemical and Biological Weapons
Control and Warfare Elimination Act o f 1991
we believe that the duty to protect intelligence sources is at least as stringent
under the current statute as it was under its predecessor.43
Moreover, the Intelligence Organization Act altered the National Security Act
in another important and relevant respect. Under section 103(d)(2) o f the National
Security Act, as amended in 1992, see 50 U.S.C. § 403-3(d)(2), the Director is
required to ‘ ‘ensure that. . . the risks to . . . those involved in such [intelligence]
collection are minimized.” This new language, which had no counterpart in the
prior version o f the National Security Act, heightens the Director’s protective
responsibilities towards the “ human sources,” id., who are engaged in intel-
ligence-gathering on the Agency’s behalf.
Under the National Security Act, then, the President has an obligation to protect
any intelligence source whose life would be endangered if the President deter­
mined that the foreign firm that employed the source had engaged in unlawful
CBW proliferation. The President’s statutory responsibilities under the two statutes
are therefore in conflict in the particular circumstances of this case.
In general, if the President’s legal obligations appear to conflict, we believe
that his overriding duty to “ take Care that the Laws be faithfully executed,” U.S.
Const, art. II, § 3 , cl. 3, requires him to attempt to discover some reasonable means
by which the conflict could be resolved and both duties discharged. In considering
the possibly conflicting obligations imposed by the two statutes at issue here, due
weight must be given to the fact that Congress was aware of the executive
branch’s concern that strict compliance with the terms of the CBW Act might
compromise the protection of intelligence sources in some circumstances, yet
failed to afford the President explicit authority to delay a determination or waive
sanctions if necessary to protect intelligence sources and methods except to the
extent necessary to continue to gather intelligence related to the proliferation
activities sanctioned under the Act. That Congress afforded only a limited excep­
tion for the protection of intelligence sources and methods obligates the President
to make determinations even when there is some risk that intelligence sources
and methods will be compromised, and to take other reasonable measures to pro­
tect intelligence sources and methods from disclosure.
We are informed that in some circumstances, however, if the President can
secure the life o f the intelligence source at all, he can do so only by means that
would expose the lives and safety of American personnel to substantial risk. We
do not believe that the President’s duty of rescue requires him to make such
extraordinary efforts.44 Short of taking such action, however, we understand that
the conferees take no position with respect to the interpretation o f similar language in existing law in
CIA v. Sims, 471 U.S. 159 (1985).
H.R. Conf. Rep. No. 102-963, at 88 (1992), reprinted in 1992 U.S.C.C.A.N. 2605, 2614.
43 We note that the Supreme Court considered even the prior section to be a “ m andate.” Sims, 471 U.S. at 177.
44 W hen a statute imposes a duty, it “ authorizes by implication all reasonable and necessary m eans to effectuate
the duty.” Supremacy Clause (Art. VI, cl. 2)— Central Intelligence Agency— Polygraph Examinations o f Employee
o f CIA Contracts, 2 Op. O.L.C. 426, 427 (1978). The President could properly conclude that the risks to the lives
Continued
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Opinions o f the Office o f Legal Counsel in Volume 19
the President can protect the life of the source by forbearing to make the deter­
mination, otherwise required by the CBW Act, that the source’s employer is sub­
ject to sanctions. There is no evidence that Congress considered the possibility
of this extreme dilemma when it passed the CBW Act. In these highly unusual
circumstances, we believe that the President has the legal discretion to defer
making the CBW Act determination, for so long as such a deferral is necessary
to protect the life of the source.
Conclusion
The President may delay making CBW Act determinations if a delay is nec­
essary to protect intelligence sources or methods needed to acquire intelligence
relating to CBW proliferation. He may also delay making such a determination
when no other reasonable means exists for protecting the life of an intelligence
source.45
Application of these legal standards to particular intelligence-gathering oper­
ations may prove to be difficult or complex, and will undoubtedly require careful
assessments of the specific facts in each case. Please let us know if further advice
from our Office on particular applications would be helpful.
WALTER DELLINGER
Assistant Attorney General
Office o f Legal Counsel
o f the G overnm ent agents o r military personnel who would be used in a rescue attempt would make such a course
o f action unreasonable. See Durand v. Hollins , 8 F. Cas. I l l , 112 (C.C.S.D.N.Y 1860) (No. 4186) (Nelson, J.,
sitting as C ircuit Justice) (W hether the President had a duty to protect American citizens whose lives and property
were threatened in a foreign tumult “ was a public political question . . . which belonged to the executive to deter*
m ine.” ).
45 W e do not mean to exclude the possibility that the President may be legally able to delay making a determination
in other circum stances that have not yet been presented to us for consideration.
326