Memorandum of Disapproval for the Intelligence Authorization Act, Fiscal Year 1991

I have withheld my signature from S. 2834, the proposed "Intelligence Authorization Act, Fiscal Year 1991," thereby preventing it from becoming law. I am compelled to take this action due to the bill's treatment of one highly sensitive and important issue that directly affects the Nation's security, although there also are several objectionable elements of the bill that trouble me.

I cannot accept the broad language that was added in Conference to the definition of covert action. Section 602 of the bill defines "covert action" to include any "request" by the United States to a foreign government or a private citizen to conduct a covert action on behalf of the United States. This provision purports to regulate diplomacy by the President and other members of the executive branch by forbidding the expression of certain views to foreign governments and private citizens absent compliance with specified procedures; this could require, in most instances, prior reporting to the Congress of the intent to express those views.

I am particularly concerned that the vagueness of this provision could seriously impair the effective conduct of our Nation's foreign relations. It is unclear exactly what sort of discussions with foreign governments would 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. Furthermore, the mere existence of this provision could deter foreign governments from discussing certain topics with the United States at all. Such a provision could result in frequent and divisive disputes on whether an activity is covered by the definition and whether individuals in the executive branch have complied with a statutory requirement.

My objections to this provision should not be misinterpreted to mean that executive branch officials can somehow conduct activities otherwise prohibited by law or Executive order. Quite the contrary. It remains Administration policy that our intelligence services will not ask third parties to carry out activities that they are themselves forbidden to undertake under Executive Order No. 12333 on U.S. intelligence activities. I have also directed that the notice to the Congress of covert actions indicate whether a foreign government will participate significantly.

Beyond this issue, I am also concerned by the treatment in the Joint Explanatory Statement accompanying the Conference Report of notification to the Congress of covert actions. I reached an accommodation with the Intelligence Committees on the issue of notifying the Congress of covert actions "in a timely fashion," as required by current law, and have provided letters to the Intelligence Committees outlining how I intend to provide such notice. I was consequently dismayed by the fact that language was inserted in the Joint Explanatory Statement accompanying the Conference Report that could be construed to undercut the agreement reached with the Committees. This language asserts that prior notice may be withheld only in "exigent circumstances" and that notice "in a timely fashion" should now be interpreted to mean "within a few days" without exception. Such an interpretation would unconstitutionally infringe on the authority of the President and impair any Administration's effective implementation of covert action programs. I deeply regret this action.

Additionally, I am concerned that there are several legislatively directed policy determinations restricting programs of vital importance to the United States that I do not believe are helpful to U.S. foreign policy. This bill, like its predecessor last year, also contains language that purports to condition specified actions on the President's obtaining the prior approval of committees of the Congress. This language is clearly unconstitutional under the Presentment clause of the Constitution and the Supreme Court's decision in INS v. Chadha, 462 U.S. 919 (1983). I again urge the Congress to cease including such unconstitutional provisions in bills presented to me for signature.

This Administration has had a good relationship with the Intelligence Committees. I am willing to work with the Congress to address the primary issue that has prompted my veto as well as other difficulties with the bill. I will also continue to work with the Congress to ensure there is no change in our shared understanding of what constitutes a covert action, particularly with respect to the historic missions of the armed forces. I am confident that these issues can be resolved quickly in the next Congress through mutual trust and a good-faith effort on the part of the Administration and the Congress.

George Bush

The White House,

November 30, 1990.