The United States' Congress disagrees with you.
http://www.fas.org/irp/congress/1996_rpt/bosnia.htm#pg17
SIGNIFICANT FACTS AND ANALYSIS REGARDING U.S. ACTIONS
SIGNIFICANT FACTS
The "no instructions" policy: In April 1994, Croatian President Tudjman asked the U.S. Government what its view would be if Croatia resumed transshipment of arms to Bosnia (which U.S. officials knew would come primarily from Iran). National Security Advisor Tony Lake told the Committee that the U.S. decision to have Ambassador Galbraith reply that he had "no instructions" was taken in the belief that this would likely result in Croatia going ahead with the resumed arms flow, and with that specific intent.
Although the instructions were "no instructions," Ambassador Galbraith also told President Tudjman "to focus not only on what I had said yesterday, but what I had not said." Ambassador Redman later explained that "we don't want to be put in a position of having to say no."
U.S. officials were fully aware that such arms flows would violate United Nations Security Council binding resolutions that the United States had voted for and by which this country was still bound.
The National Security Advisor had the instructions to Ambassador Galbraith transmitted orally, rather than by cable. On May 2, 1994, the National Security Advisor told Ambassador Redman that a cable on his meeting with President Tudjman would not be necessary (which instruction was relayed by Redman to Ambassador Galbraith). On May 6, 1994, Deputy Secretary of State Strobe Talbott told Galbraith that a cable would be in order, but not until the Assistant Secretary or his deputy got back to Galbraith -- which never occurred.
Also on May 6, at the suggestion of his Deputy Chief of Mission, Ambassador Galbraith prepared and kept for himself a memorandum for the record regarding the key events, which the Deputy Chief of Mission countersigned, attesting to its accuracy. This memorandum states that in the May 6 phone conversation between Ambassador Galbraith and Under Secretary Talbott, Ambassador Galbraith explained that "anything short of a statement that the Croats should not facilitate the flow of Iranian arms to the Bosnians would be understood as a US green light." As Galbraith later testified to the Comniittee, "They would interpret this then that we had not objected, that we had, in essence, given them a green light. No matter what we said, this was how they would in fact interpret it."
Encouragement of Croatian military resupply in Bosnia: A memorandum for the record by a senior U.S. Government official in Croatia indicates that, in early 1995, after consultation with another U.S. official, he encouraged a military resupply effort that Croatia was conducting in Bosnia by reassuring Croatia that any international reaction would be limited and that the United States did not want Croatia to stop.
Inspection of long-range rockets: In late summer of 1995, a shipment of long-range rockets bound for Bosnia was held by the Croatians, who, according to U.S. Govemment cables, threatened to stop transferring any arms shipments to Bosnia. A senior Croatian official approached Assistant Secretary Holbrooke and Ambassador Galbraith with an offer for the United States to inspect the aircraft carrying the "missiles" for chemical warheads. Two such inspections occurred, both involving the use of U.S. Govemment personnel. They determined that there were no chemical warheads on the rockets, although the rockets were probably capable of being fitted with such warheads.
According to one report, a senior U.S. Govemment official in Croatia was determined to prevent this incident from leading to a cut-off of arms shipments to Bosnia. A senior Croatian official said that U.S. officials pressured the Croatians to release the rockets to Bosnia. A second Croatian official identified the senior U.S. official -- who denied the allegation -- as the person who applied such pressure. According to these allegations, this led to the release of the rockets despite the normal practice of Croatia taking a 30-percent cut of the arms flow.
ANALYSIS
Section 503(e) of the National Security Act defines "covert action" as "an activity or activities of the United States Govemment to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Govemment Will not be apparent or acknowledged publicly." Certain activities are exempted from the definition, including "traditional diplomatic or military activities."
Although the activities surrounding the "no instructions" policy were conducted primarily by diplomats, the Committee believes that the interchange between the United States Ambassador to Croatia and the Croatian President in April 1994 did not constitute traditional diplomatic activity, at least as that term is understood by most Americans.(7) Traditional diplomatic activity may include secret meetings with foreign heads of state. It is also traditional to consider the conversations during those meetings privileged. Moreover, it may be frequent in that type of diplomatic activity to espouse a policy different from publicly announced policy. But it was not traditional diplomatic activity to: (1) give a response to a foreign head of state which effectively contradicted stated U.S. policy on isolating a country, in this case Iran, against which U.S. law imposed sanctions; (2) implicitly turn a blind eye to activity that violated a United Nations Security Council resolution which the United States had supported and was obligated to obey; and (3) direct a U.S. Ambassador not to make a written report of a conversation with a foreign head of state.
In considering the law on covert action, some may argue that a diplomatic activity is either traditional or a covert action. There are many forms of non- traditional diplomatic activity, however, only one of which is covert action within the meaning of section 503(e) of the National Security Act of 1947, as amended (50 U.S.C. 413(e)). To be a covert activity, it must influence political, economic, or military conditions where it is intended that the role of the U.S. Government will not be apparent or acknowledged publicly.
Given the facts available at this time, the Committee is unable to reach agreement as to whether the actions of the U.S. Government, in addition to satisfying other elements of the definition in section 503(e), were designed to influence the Croatians to allow the flow of Iranian arms into Bosnia, which would constitute a covert action, or simply intended to allow events to proceed without U.S. influence.
It appears that the parties directly involved in the arms shipments had agreed upon this plan without any U.S. involvement. Croatia, Bosnia and Iran each had their own reasons to want to resume this arms pipeline. Based on the information available to the Committee at this time, it seems unlikely that the United States initiated this proposal. Administration officials have admitted that they were concerned about the military situation in Bosnia, but they have testified that they did not want to encourage any countries to supply arms in violation of the embargo for fear that such an action would cause our allies to withdraw their troops. When Croatian officials brought the proposed arms flow to the attention of U.S. officials, they did not ask whether they should go forward, but simply whether the U.S. would object. Ambassador Galbraith apparently urged Washington to send a clearer signal of encouragement, but his proposal was not accepted. If U.S. policymakers believed the arms would flow without any need for U.S. encouragement, their response of "no instructions" can be seen as simply a decision not to intervene to stop the flow. No encouragement was needed.
On the other hand, there is little doubt the United States wanted the arms flow to proceed. They may have viewed the Croatian request as an indication that the Croatians would not proceed without encouragement from the United States, in which case their response of "no instructions" would provide that encouragement while preserving deniability for the U.S. Government. This view is buttressed by the conversations, following the delivery of the "no instructions" response, in which Ambassadors Redman and Galbraith urged President Tudjman to listen to what was not said and told him that the United States did not want to have to say no. One policy official's request to U.S. intelligence to bolster the message through its own channels also seems to reflect a concern that Croatia needed additional encouragement. In the end, U.S. officials seem to have decided that "no instructions" was indeed sufficiently encouraging, with Ambassador Galbraith saying it would be perceived as a "green light."
The U.S. decision to send personnel -to Croatia to inspect rockets bound for Bosnia is similarly subject to varying interpretations. It may have been simply a straightforward effort to determine whether chemical weapons were being shipped into Bosnia. It was certainly, at least in part, an opportunity to examine a rocket in which the United States had some interest. But it may also have been designed to ensure that Croatia would not shut down the arms pipeline.
The Committee was particularly troubled by documents provided by the State Department in late August and September. Not only do these documents raise questions as to what additional relevant information may remain undiscovered, they also contain new information about U.S. actions. For example, one of these documents is a memorandum recording a senior U.S. official in Croatia's conversations with a Croatian official in early 1995 regarding a military resupply effort that Croatia was conducting in Bosnia. The Croatian official described this ongoing effort and expressed concern over possible international reaction. The U.S. official consulted another U.S. official and then reassured the Croatian official that any such reaction would be limited. When the Croatian official said that his country could not afford to stop the military resupply effort, the U.S. official replied that the United States did not want Croatia to stop-
The Croatian official clearly wanted to continue the resupply effort and did not appear to need any encouragement from the U.S. official. On the other hand, the U.S. official did encourage him and it appears the United States was prepared to take action to limit international reaction to the resupply effort. Whether they actually did take any such action is unknown.
In the end, the Committee was unable to reach agreement, given the available facts, as to which of these interpretations of the events surrounding the "no instructions" policy is more accurate: that U.S. actions, in addition to satisfying other elements of the definition in section 503(e) of the National Security Act of 1947, were intended to influence the Croatians to allow the flow of Iranian arms into Bosnia, which would constitute a covert action; or that they were simply intended to allow events to proceed without U.S. influence. While additional facts or time may provide a basis for agreement in the future, the Committee is not reaching a conclusion on this issue at this time in the interest of coming out in a timely fashion with a bipartisan report that informs the public of the facts uncovered by this inquiry and provides guidance and recommendations for future action.
APPLICABILITY OF THE NATIONAL SECURITY ACT OF 1947
In the course of the Committee's inquiry into the events surrounding the flow of Iranian and other arms into Bosnia, some current and former Executive branch officials have made statements which the Committee believes do not reflect accurate interpretations of the laws governing intelligence activities. For example, some witnesses have asserted that the requirement in Title V of the National Security Act of 1947 for the President and agency heads to "ensure that the intelligence committees are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity" does not impose an obligation to notify Congress of any of the intelligence information produced by those intelligence activities. This unreasonably narrow reading of the statute is not consistent with the general understanding of the applicable provisions or with past practice. This Committee cannot be fully and currently informed of intelligence collection activities if it is not provided insights into the information those activities produce. How much of that information must be provided to Congress is an issue that the committees and the Director of Central Intelligence have worked out over the years and that continues to be refined as the interests and needs of the oversight bodies change over time.
In addition, in the course of the Committee's inquiry, some Executive branch officials have asserted that a request to another country to conduct a covert action on behalf of the United States would not constitute a U.S. covert action under Section 503 of the National Security Act of 1947, as amended. They base this argument on the fact that, as originally passed by Congress as part of the Intelligence Authorization Act for Fiscal Year 1991, section 503 contained a provision in the definition of "covert action" stating that U.S. requests to third countries to conduct a covert action on behalf of the United States would be deemed to be a covert action, but the provision was dropped after then-President George Bush pocket-vetoed the bill based in part on his objection to the provision. Executive branch officials argue that the absence of the so-called "third party request" provision in the version of section 503 that was later enacted means that U.S. requests to third parties to take certain actions do not constitute a U.S. covert action. This Committee does not agree that the effect of the Bush veto was to exempt all U.S. requests to third parties from the law regarding the approval and reporting of covert actions.
The Committee notes that the definition of "covert action" in section 503 was part of an extensive revision of the intelligence oversight provisions in Title V of the National Security Act. These revisions were intended to clarify and tighten the law governing covert actions in the aftermath of the Iran-contra scandal. The "third party request" provision was added in conference by House conferees and was intended "to prevent the conduct of a covert action at the specific request of the United States that bypasses the requirements for Administration review, presidential approval, and consultation with the intelligence committees."
In a November 30, 1990, Memorandum of Disapproval setting forth his reasons for refusing to sign the Intelligence Authorization Act for Fiscal Year 1991, President Bush stated that he was:
particularly concerned that the vagueness of this [third party request] provision could seriously impair the effective conduct of our Nation's foreign relations. It is unclear exactly what sort of discussions with foreign governments could constitute reportable "requests" under this provision, and the very possibility of a broad construction of this term could have a chilling effect on the ability of our diplomats to conduct highly sensitive discussions concerning projects that are vital to our national security.
Thus it appears that what was at issue was not whether actual formal requests to third parties would constitute a covert action but, rather, what kinds of discussions might be deemed to constitute a request. The Chairmen of both congressional intelligence committees had previously written to the President to state that the provision was not intended to preclude "informal contacts and consultations which would be required prior to the United States officially requesting a third country or private citizen to undertake such [covert action] activities on its behalf." Apparently, however, President Bush was not sufficiently reassured by this letter to overcome his concern regarding the statutory language.
Subsequent attempts to refine the legislative language to clarify this aspect of the definition of covert action failed. When a second version of the Intelligence Authorization Act, Fiscal Year 1991 was passed by Congress on July 3 1, 1991, neither the final bill nor the accompanying conference report addressed the issue of third party requests. Instead, the conference report stated that:
the conferees ... do not intend that the new definition exclude any activity which heretofore has been understood to be a covert action, nor to include any activity not heretofore understood to be a covert action. The new definition is meant to clarify the understanding of intelligence activities that require presidential approval and reporting to Congress; not to relax or go beyond previous understandings.(8)
The Committee does not agree that this legislative history should be interpreted as evidence that requests to third parties to conduct covert action are not covered by the definition of covert action. There is a legitimate concern that the definition of covert action should not include preliminary discussions with foreign countries that are not designed to influence events, but merely to explore feasibility, potential willingness, and the like -- such as have been acknowledged by Ambassador Holbrooke. This does not mean, however, that an actual request to a third country, whether explicit or conveyed through indirection, would never be a covert action. In the Committee's view, the Bush veto did not have the effect of creating an exclusion for an activity that would otherwise be a covert action, merely because it is implemented through a request to a third country.
INTERNATIONAL LEGAL IMPLICATIONS
On September 25, 1991, the United Nations Security Council, acting under Chapter VII of the U.N. Charter, adopted Resolution 713, imposing a "general and complete embargo on all deliveries of weapons and military equipment to Yugoslavia." Resolution 713 was subsequently applied to all former Yugoslav republics, including Croatia and Bosnia-Herzegovina, even after these states became members of the United Nations as independent countries in May, 1992. On December 15, 1991, the Security Council established a sanctions compliance committee, made up of members of the Security Council, to review reports on member states' implementation of the arms embargo, consider information regarding violations of the embargo, and recommend to the Security Council appropriate measures in response to embargo violations. Resolution 724 called upon all states to cooperate fully with the sanctions compliance committee on overseeing the effective implementation of the arms embargo. On February 7, 1992, Resolution 740 expressed concern at indications that the arms embargo was not being fully observed and again called upon all states to cooperate fully with the sanctions compliance committee, including reporting any violations.
The Committee is not aware of any reports filed by the United States with the U.N. Sanctions Committee regarding what the U.S. Government knew about the flow of Iranian arms through Croatia and into Bosnia. Moreover, acquiescence in the flow of arms -- particularly when presented with a clear opportunity to object -- is not consistent with the obligation "to cooperate fully ... on overseeing the effective implementation of the embargo." Certainly any effort to encourage the flow of arms would have been inconsistent with these resolutions.
Violations of United Nations resolutions do not constitute violations of U.S. law. There were a number of executive orders implementing these resolutions, however, and Section 5 of the United Nations Participation Act of 1945, codified at 22 USC 287c, provides criminal penalties for noncompliance with a Presidential order that seeks to comply with a United Nations Security Council Resolution.
Based on the facts available to the Committee at this time, there does not appear to have been a violation of any of these executive orders. Executive Order 12846, 58 FR 25771 (April 25, 1993), however, tightens sanctions against the former Yugoslavia and harmonizes these and prior sanctions with U.N. Security Council Resolution 820 of April 17, 1993. Among other things, EO 12846 prohibits:
[a]ny dealing by a US person relating to the importation from, exportation to, transshipment through the U.N. protected areas in the Republic of Croatia and those areas of the Republic of Bosnia-Herzegovina under the control of Bosnian Serb forces, or activity of any kind that promotes or is intended to promote such dealing." [Emphasis added.]
Thus, any evidence of U.S. officials encouraging, or "promoting," the exportation to Bosnia of arms could reflect a violation of EO 12846. The Committee does not have sufficient information to conclude that U.S. officials engaged in such encouragement or promotion, although there are allegations of this.
RECOMMENDATIONS
The Committee found three areas in which administrative or legislative actions appear to be required. The first area is the need for written records of secret foreign policy decisions. The second area relates to keeping the intelligence committees informed of intelligence activities. The third area relates to keeping Congress informed of significant changes in foreign policy.
Recommendation No. 1: The Executive branch, especially the White House and the Department of State, should make a written record of every significant foreign policy decision, and especially of those decisions that reflect a change in policy; and it should ensure that adequate mechanisms are in place to generate and protect communications that are particularly sensitive.
The lack of a written codification of the "no instructions" decision resulted in confusion on the part of Ambassador Galbraith, CIA officials and U.S. military officers. The consequences of this confusion included Ambassador Galbraith sending an undesired cable to State Department Headquarters (which exposed the "no instructions" issue to more people than policy makers wanted), as well as the CIA engaging in extensive reporting on possible illegal covert actions (which led, in turn, to State Department distrust of CIA personnel).
The Committee realizes that some officials viewed the "no instructions" decision as not signaling a significant change in policy. Those officials conceded, however, that it was viewed as an "important" decision and that it was intended to result in Iranian and other arms flows to Bosnia in violation of a United Nations embargo; and the matter was significant enough to be taken to the President for a final decision.
National Security Adviser Lake's reason for telling Ambassador Redman that no written record was needed was the fear that any written record would lead to a leak that would prompt European reaction. As Deputy Secretary of State Strobe Talbott testified to this Committee:
Another reason that diplomatic transactions and internal deliberations do not end up on paper is because of the extreme sensitivity of the subject matter. What goes down on paper is more likely to come out in public, in inappropriate and harmful ways, harmful to the national interest.
It is precisely this approach -- leaving the most sensitive decisions unwritten -- that the Committee believes is unwise and dangerous. Such records can (and should) be kept as secret as is necessary to protect the national security, and the risks that are involved in reducing significant decisions to writing are far outweighed by the inefficiency that results from doing without any authoritative statement of such decisions.
To the extent that written records of decisions and actions are foregone because the Department of State lacks an efficient system for generating and handling tightly-held cables, that, too, should be corrected. Former DCI James Woolsey noted that "Even NODIS cables in State are very widely disseminated," and a former State Department official indicated that this was why Ambassador Galbraith's NODIS cable of April 29, 1994, was viewed as a security problem. While there is a tightly-held ROGER channel for some sensitive communications from an ambassador, there is no way for an embassy to send a sensitive diplomatic cable to a very limited set of addressees. The absence of a truly limited channel for diplomatic cables is an anachronism, left over from the days in which diplomacy was seen as a more open activity. It unnecessarily limits the flexibility of ambassadors and senior officials in their handling of sensitive issues, and it should be remedied promptly.
Recommendation No. 2: The Executive branch should keep the Committee "fully and currently informed" of the substantive content of intelligence that is collected or analyzed by U.S. intelligence agencies.
Section 501 of the National Security Act of 1947 states: "The President shall ensure that the intelligence committees are kept fully and currently informed of the intelligence activities of the United States...." In the course of its inquiry, the Committee was informed that Executive branch lawyers view this provision as not applying to the substantive content of intelligence that is collected or analyzed by U.S. intelligence agencies. The Committee has always interpreted the term "fully and currently" in that provision to mean informing Congress regarding, inter alia, the substance of the intelligence. It is hard to envisage how the intelligence committees could be kept fully informed of U.S. intelligence activities without being told what has been learned from those activities. The Committee has been provided much intelligence over the years, often at the Intelligence Community's initiative, and has rarely had difficulty in obtaining intelligence reporting that it requested.
Nevertheless, as Executive branch lawyers have highlighted an interpretation of the law under which there is no legal obligation to inform Congress of the substance of intelligence, the Committee wishes to make clear its belief that the Executive branch bears an obligation to keep the intelligence committees "fully and currently informed" of the substance of intelligence, as well as of the process. This still allows for agreement between the Executive branch and the committees on the expected level of specificity in reporting, just as exists regarding other aspects of "intelligence activities" today.
Recommendation No. 3: The Executive branch should inform Congress of significant secret changes in U.S. foreign policy.
A more difficult issue of reporting to Congress relates to those cases in which a significant change in U.S. foreign policy is determined and implemented in secrecy. In the matter of the "no instructions" decision, U.S. policy changed from one of telling other countries that the United Nations arms embargo must be obeyed to one of looking the other way as arms flowed from Iran and other countries into Bosnia and Croatia. While the impact of that policy change was publicly visible, the fact that the U.S. Government had decided consciously not to oppose such arms flows and had conveyed that decision to Croatian officials was never notified to Congress by policy makers in Washington. At a minimum, the appropriate committees should have been informed of the significant foreign policy change embodied in the "no instructions" instruction.
The Committee believes that the national interest would be far better served by an arrangement under which such significant secret changes in U.S. foreign policy were conveyed to appropriate Members of Congress. One possibility would be to notify the intelligence committees, which are used to handling sensitive notifications and could be given the duty to inform such other Members of Congress as might be specified by the law or a memorandum of agreement with the Executive branch. The committees' charters -- Senate Resolution 400 (94th Congress) and House Rule XLVIII -- already provide for the intelligence committees to include some members of four other committees in the national security field, thus encouraging attentiveness to the concerns of those other committees. The charters also offer special protection to sensitive information by requiring that "[n]o Member of the Senate [House] who, and no committee which, receives any information ... [from the intelligence committee] shall disclose such information except in a closed session of the Senate [House]."
There are also other options for notifying Congress of significant secret changes in U.S. foreign policy. One possibility would be to notify directly the members or leadership of the intelligence committees, foreign relations committees, armed services committees, defense appropriations subcommittees, and/or other relevant congressional bodies. Another option would be to notify the leadership of each House of Congress. A third option would be for Congress to designate a "contact group" of senior Members that could meet to receive such notifications.
Executive branch officials have testified that their concern in the case of the "no instructions" decision was that European countries might find out about the decision and decide to withdraw UNPROFOR forces from Bosnia. Based on twenty years of experience in handling sensitive notifications, the Committee believes that means can be crafted to ensure that such notifications are handled with complete security. The Committee also believes that information security is best guaranteed by an atmosphere of trust and cooperation between the legislative and executive branches of government, rather than by impediments to the sharing of information that is both of interest to the Congress and relevant to legislative issues before it.