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Senate Select Committee Report on Iran/Bosnia Arms Transfers
U.S. ACTIONS REGARDING IRANIAN AND OTHER ARMS TRANSFERS TO THE BOSNIAN ARMY, 1994-1995
OF THE SELECT COMMITTEE ON INTELLIGENCE UNITED STATES SENATE
together with
ADDITIONAL VIEWS
NOVEMBER 1996
Printed for the use of the Select Committee on Intelligence
ARLEN SPECTER, Pennsylvania, Chairman
J. ROBERT KERREY, Nebraska, Vice Chairman
RICHARD G. LUGAR, Indiana
JOHN GLENN, Ohio
RICHARD C. SHELBY, Alabama
RICHARD H. BRYAN, Nevada
MIKE DEWINE, Ohio
BOB GRAHAM, Florida
JON KYL, Arizona
JOHN F. KERRY, Massachusetts
JAMES M. INHOFE, Oklahoma
MAX BAUCUS, Montana
KAY BAILEY HUTCHISON, Texas
J. BENNETT JOHNSON, Louisiana
WILLIAM S. COHEN, Maine
CHARLES S. ROBB, Virginia
HANK BROWN, Colorado
BOB DOLE, Kansas, Ex Officio
THOMAS A. DASCHLE, South Dakota, Ex Officio
CHARLES BATTAGLIA, Staff Director
CHRISTOPHER C. STRAUB, Minority Staff Director
KATHLEEN P. McGHEE, Chief Clerk
Background ........................................................1
Nature of the Intelligence Committee's Inquiry ....................1
The Development and Consideration of Covert Action .............. 3
Avoiding Unauthorized Covert Action ...............................6
The Use of Secret Diplomacy ....................................... 9
Allegations of Greater U.S. Involvement ...........................13
Significant Facts and Analysis Regarding U.S. Actions .............17
Applicability of the National Security Act of 1947 ................22
International Legal Implications ..................................25
Recommendations. ...................................................26
Additional Views of Dissenting Senators John Glenn, Richard C. Bryan and Bob Graham .............................30
Additional Views of Senator John Kerry ............................32
U.S. ACTIONS REGARDING IRANIAN AND OTHER ARMS TRANSFERS TO THE BOSNIAN ARMY, 1994-1995 BACKGROUND
On April 5, 1996, the Los Angeles Times reported that "President Clinton
secretly gave a green light to covert Iranian arms shipments into
Bosnia in 1994 despite a United Nations arms embargo that the United
States was pledged to uphold and theadministration's own policy of
isolating Tehran globally as a supporter of terrorism." The Committee
began an inquiry into the matter on April 7, 1996. This report
summarizes the Committee's findings and recommendations.
NATURE OF THE INTELLIGENCE COMMITTEE'S INQUIRY
The Committee has held three public hearings, four closed hearings and
six informal sessions. Testimony has been taken from: Director of
Central Intelligence John M. Deutch; former Director of Central
Intelligence R. James Woolsey; Deputy Secretary of State Strobe Talbott;
former Assistant Secretary of State Richard Holbrooke; the Honorable
Charles E. Redman (U.S. Ambassador to Germany and former Special Envoy
to the Former Yugoslavia); the Honorable Peter W. Galbraith (U.S.
Ambassador to Croatia); three other persons who served in the U.S.
Embassy in Zagreb in 1994-1995; and legal officials from the Department
of State and Department of Defense. Informal sessions have been held
with some of the above persons and with: Secretary of Defense William
Perry; Chairman of the Joint Chiefs of Staff General John Shalikashvili;
Assistant to the President for National Security Affairs Anthony Lake;
and Intelligence Oversight Board (IOB) Chairman Anthony S. Harrington.
Formal and informal staff interviews have been held with Department of
State, Department of Defense and intelligence personnel, and with the
chairman and staff of the IOB.
On April 8, 1996, the Committee sent letters to the Secretary of State,
the Secretary of Defense, the Attorney General, the Director of Central
Intelligence, the Assistant to the President for National Security
Affairs and the chairman of the IOB, asking them to provide relevant
materials to assist in the Committee's inquiry. These letters were
supplemented by oral and written requests in the ensuing weeks. The
Committee's staff has been able to review substantial material provided
by the Central Intelligence Agency (CIA) and the National Security
Agency (NSA) and smaller, but significant, amounts of material provided
by the Department of State and Department of Defense (including finished
intelligence products of the Defense Intelligence Agency), as well as
some National Security Council documents. Even in October, over five
months after the Committee's requests, departments and agencies
continued to locate more documents responsive to those requests. This
report presents the Committee's findings as of late September, shortly
before the 104th Congress adjourned.
In May 1996, the Committee sent letters to the Secretary of State, the
Secretary of Defense, the Attorney General and the Director of Central
Intelligence making clear that its interest extended beyond Iranian arms
flows to Bosnia, to include arms shipments from other Islamic
countries. On June 20, the Committee sent the Assistant to the President
for National Security Affairs a lengthy list of document and interview
needs. The NSC, CIA and the Departments of State and Defense attempted
to compile still further documents responsive to the above requests.
Response times have been slow, however, due largely to the volume of
material that would have to be reviewed.
The Committee now judges that it is more important to issue a timely
report to the American people on its findings and recommendations than
to wait many more weeks or months for fuller information. More may be
learned later on such matters as Ambassador Holbrooke's conversations
with Bosnian and Croatian officials in September 1994, Defense
Department actions to ensure that no improper assistance was provided to
Bosnia or Croatia, and any U.S. discussions on Bosnia that may have
occurred with Islamic countries other than Iran that were supplying arms
to Bosnia.
The Committee has had discussions with White House officials regarding
the status of National Security Council (NSC) and IOB documents, as well
as certain materials referred to the White House by other agencies
because they might be susceptible to an assertion of executive
privilege. The Committee reminded the White House by letter of May 1,
1996, that executive privilege has been narrowly construed by the courts
and that any claim of executive privilege must be made by the President
himself on a document-by-document basis. The White House has yet either
to claim executive privilege or to afford access to such materials as
the IOB's report on its investigation, although a number of documents
were either shown or briefed to Committee staff or briefed to the
Chairman and Vice Chairman. The Committee has not pursued this matter
through any judicial process because such an effort would make it
impossible to issue a timely report.
THE DEVELOPMENT AND CONSIDERATION OF COVERT ACTION
Ever since 1974, when the Hughes-Ryan amendment to the Foreign
Assistance Act of 1961 was enacted, a presidential finding has been
required to authorize covert actions by the CIA. Executive orders since
1978, as well as the new Title V added to the National Security Act of
1947 in 1991, effectively brought non-CIA covert action activities under
the same regime. For over twenty years, then, the development and
consideration of covert action proposals has been based upon a
publicly-mandated White House (i.e., a National Security Council)
decision process.
Since 1991, that decision process has been further specified in Title V
of the National Security Act of 1947. Except in emergencies, when oral
findings may be used for up to 48 hours, presidential findings must be
in writing and may not confer retroactive authorization for covert
activities. Findings also must specify each U.S. Government entity that
will participate in any significant way in a program's implementation,
must state whether any third party will participate in the program in
any significant way, and may not authorize any violation of the
Constitution or any U.S. statute.
There are no laws, however, specifying in any greater detail how the
Executive branch should handle the process of considering and adopting
presidential findings. Executive orders have sometimes specified
particular officials who must be involved in this process, but the
current order, Executive Order 12333 (1981), does not do so. Thus, the
manner in which covert actions shall be proposed, developed and
considered is a matter of Executive branch policy.
Discussions between State Department and intelligence personnel in 1993
and early 1994 demonstrated some confusion over the covert action
approval process. One ambassador's comments appear to have left the
impression that the ambassador did not know about the legal requirement
for a presidential finding. One CIA officer, in turn, asserted a
prohibition on CIA proposals of covert actions. While it might be wise
to require that policy officials request the development of covert
action options, CIA officials can, in fact, propose covert action
initiatives to their policy counterparts in the NSC process.
The Committee found evidence of the preparation of covert action options
by CIA and the Department of Defense in the summer and fall of 1994,
but no evidence of any formal NSC-level deliberation on those covert
options, although interviewees stated that there may have been
interagency discussion on the fringes of formal meetings. There was a
general paucity of documentation from agencies other than CIA, which
made it difficult to determine how policy agencies viewed or handled
these covert action options. The Committee knows from CIA documents that
DCI Woolsey was encouraged by Agency personnel to oppose covert action
options, but does not know whether he and other high officials rejected
the covert options separately or handled (and rejected) them through
informal discussions outside the formal NSC process. This lack of clear
documentation is a serious concern. Without a paper trail, it is too
easy for the policy process to be short-circuited and too difficult to
maintain accountability.
Assistant Secretary Richard Holbrooke's efforts to assist the Bosnian
Muslims illustrate how easily officials can come close to the line
between traditional diplomacy and covert action. Ambassador Holbrooke
supported an option (which was later rejected by Secretary of State
Warren Christopher and the National Security Adviser) in which the
Bosnian Government would accept a six-month suspension in any lifting of
the arms embargo, in return for U.S. encouragement of third countries
to violate that embargo and send more military equipment to Bosnia.
There were allegations (which Ambassador Holbrooke denied) that he also
discussed with foreign officials an option in which the United States
would covertly provide funding and/or materiel to the Bosnian army.
Ambassador Holbrooke and other officials insist that no aid was promised
or provided to Bosnia or Croatia. The Executive branch has not provided
any documentation of Ambassador Holbrooke's conversations in early
September 1994, however, although the NSC Staff did brief the Committee
on documents regarding some discussions that he held later in that
month. Based on this limited record, the Committee could not determine
whether U.S. officials offered either support in implementing a larger
arms pipeline or a quid pro quo to Croatia for agreeing to such
increased arms shipments. The Committee found no evidence that the
United States ever provided such support or any quid pro quo to Croatia,
or encouraged any country other than Croatia to provide arms or
military assistance in violation of the arms embargo, despite the fact
that on September 27, 1994, Bosnia did publicly call for a United
Nations resolution lifting the arms embargo that would incorporate a
six-month delay. (Such a resolution was never adopted.) There is
documentation of one instance in which a senior U.S. Government official
in Croatia told a Croatian official that the United States did not want
Croatia to discontinue certain military resupply efforts in Bosnia, and
there are unproved allegations of other similar instances.
An August 1994 trip to Bosnia by the Director of Strategic Plans and
Policy (J-5) on the Joint Staff of the Joint Chiefs of Staff illustrates
how close U.S. officials came to crossing the line between exploring
options with foreign officials and offering U.S. covert action. The
American officer, in separate discussions with the head of UNPROFOR and
with Bosnian leaders, including President Izetbegovic, moved seamlessly
from exploring the implications of a unilateral lifting of the embargo
to the question of whether one could rely upon the clandestine flow of
embargo-breaking arms and thus avoid UNPROFOR's departure. The officer
told the Committee that he had viewed this as an exploration of overt
policy options; he had no authority to develop covert action options.
But in one of the meetings the J-5 expressed a willingness to encourage
greater third-party arms flows in violation of the U.N. arms embargo
and/or to engage directly in covert embargo-busting. The officer twice
told the Bosnian officials that he had no authority to promise anything,
but the positive tone of his remarks on covert embargo-busting may well
have given those officials a stronger impression than he intended.
In 1995, by contrast, Executive branch consideration of covert action
options was implemented in a much more orderly fashion. The options fed
into a more regular process of inter-agency deliberation (and, as in
1994, were rejected). The covert action options of 1995 were clearly
identified as such. Policy makers therefore discussed them with full
knowledge of their legal obligations.
In 1994, however, rightly or wrongly, such options as the "no
instructions" policy and the "Holbrooke initiative" were not perceived
as being covert action. Policy makers therefore felt no legal obligation
to use a formal decision process, to keep records of their decisions
and actions or to seek legal counsel. They apparently also saw no need
to involve the Secretary of Defense or the DCI in the decision or even
to explain clearly what had been done. This attitude toward the "no
instructions" policy continued in 1995, when no policy official
questioned the wisdom of inspecting arms that Croatia had seized on
their way to Bosnia.
AVOIDING UNAUTHORIZED COVERT ACTION
CIA's reaction to talk of covert actions was largely defensive. The
Agency is a generally cautious institution regarding covert action,
especially among personnel who handle European or Eurasian affairs. In
the wake of intermittent scandal over more than two decades, most CIA
personnel want covert actions to be handled by the book, pursuant to
explicit presidential and policy maker direction. Legal strictures in
Title V of the National Security Act of 1947 and in Executive Order
12333 are reinforced by the memory of Iran-Contra and the sense that any
out-of-channels activity is dangerous, if not illegal.
CIA contributions to the routine development and consideration of covert
action options illustrate the Agency's institutional caution. In the
summer of 1994, CIA personnel told the DCI that a covert operation would
be costly and could not be kept secret for long. In 1995, CIA personnel
again recommended that the DCI strongly oppose covert aid. These
actions do not reflect an institution eager to take on covert action
responsibilities.
CIA's institutional caution was equally evident in late 1993 and early
1994, when a senior U.S. Government official in Croatia indicated
interest in a covert action to aid the Bosnian Muslims. At one point,
the senior U.S. official suggested a covert action program in which the
United States would let Croatia know that we would look the other way if
they would let arms for the Muslims transit their territory on terms
arranged between Zagreb and the parties involved. The senior U.S.
official suggested that the Iranians could be the suppliers. A CIA
official responded that such a proposal would have to come from the top
down (i.e. from the NSC or White House), and also noted a series of
policy concerns that such a covert action would raise. CIA added that
those aspects of the proposal disguised to hide the U.S. hand would
place it squarely into the covert action area. Executive branch lawyers
would later be far from certain that such encouragement to a third party
would constitute covert action, arguing that only actually supporting
the foreign action through assistance, direction, direct participation
or the like would constitute "covert action" under the law; but CIA
officials erred on the side of caution.
When the issue of looking the other way at Iranian arms flows through
Croatia arose again in April 1994, this time as a question from Croatian
President Franjo Tudjman, one CIA officer wondered, in an internal
document, whether the U.S. Ambassador had encouraged Croatia -- if not
Iran -- to adopt this approach. As far as the Committee can determine,
the CIA officer was mistaken in this regard. Bosnian efforts to secure
arms from third parties were well known, and there had been a previous
history of Croatian transshipment of Iranian and other arms before the
Croatians and Bosnian Muslims had turned to fighting each other. It did
not require any U.S. suggestion for this issue to arise after the
fighting between Muslims and Croats ended. The Committee has found no
evidence, moreover, of any U.S. officials having contact with Iranian
officials. But the CIA's concern was legitimate, and was further fueled
when one policy official asked intelligence personnel to engage in an
activity that CIA concluded would have been illegal in the absence of a
covert action finding. The official's request was rejected, and CIA
became especially attentive to actions that might constitute an illegal
covert action activity.
There have been both public and private allegations that CIA was "spying
on" Department of State personnel. While CIA's concerns may have been
overwrought, so are the allegations against the Agency. CIA was watching
an issue that involved both intelligence and policy; there had already
been attempts to involve the Agency in policy formulation or
implementation; and CIA documents show that Agency personnel believed
that illegal activity on the part of U.S. officials might be taking
place. As far as the Committee could determine, moreover, CIA did not
clandestinely spy on State Department personnel.
CIA's concerns led DCI Woolsey, on May 5, 1994, to question National
Security Adviser Tony Lake, Secretary of State Warren Christopher and
other officials about U.S. policy toward arms shipments. Deputy
Secretary of State Strobe Talbott testified to the Committee that at the
May 5, 1994, meeting, he explained to Director Woolsey "the essence of
what had been decided" -- the U.S. response to Croatian President
Tudjman's question and the rationale for that response. Testimony,
interviews and CIA documents show, however, that neither Director
Woolsey nor other participants in the meeting gained an understanding in
the May 4 meeting that the United States Government had made an
explicitdecision not to oppose Croatian transshipment of Iranian arms
shipments to Bosnia and that the "no instructions" instruction was an
embodiment of that decision. Thus, Director Woolsey testified to the
Committee, "I was never told that there had been any change in U.S.
Government policy on this matter."
Much confusion might have been averted if Deputy Secretary Talbott or
other State Department officials had adequately explained to Director
Woolsey the new policy and their intent that Iranian arms be permitted
to flow to Bosnia and Croatia. It would also have helped if State
Department Headquarters had provided clearer instructions to Ambassador
Galbraith.
The activities of the Director of Strategic Plans and Policy on the
Joint Staff of the Joint Chiefs of Staff and of Ambassador Holbrooke in
August- September 1994 prompted renewed concern on the part of CIA and
other personnel. At least some of these concerns were, once again,
overwrought. Thus, the officer apparently had no intent or authorization
to promote a covert action, and reports of NSC consideration of covert
actions were inaccurate. U.S. diplomats deny ever offering U.S. funds or
equipment to Bosnia or Croatia, moreover, and the Committee has found
no evidence that any tangible U.S. support was ever provided or that the
United States encouraged any third party to supply arms to those
countries.
DCI Woolsey raised these renewed concerns with National Security Adviser
Lake, as well as with Assistant Secretary Holbrooke, in October 1994.
Director Woolsey's consultation with CIA lawyers and his advice that
policy- making officials also seek legal guidance were especially
useful. Although Executive branch lawyers concluded that no illegal
activity had occurred, they highlighted how diplomatic discussions might
quickly come close to the line. This, in turn, appears to have
contributed to the conclusion by Secretary Christopher and the National
Security Adviser that the United States should not actively encourage
other countries to send arms into Bosnia.
Director Woolsey's concerns also led the White House to commission an
investigation by the President's Intelligence Oversight Board, which
began in November 1994 and was completed in May 1995. Although the
chairman of the Intelligence Oversight Board appeared before the
Committee and, with his staff, met with Committee staff to discuss and
answer questions on the IOB investigation, the Committee was not
permitted to see the IOB's report to the President. The Committee has
been told that the IOB investigation focused on three particular
questions: whether, in light of Ambassador Galbraith's and Ambassador
Redman's comments to President Tudjman in April 1994, they had provided
direct assistance for arms shipments to Bosnia; whether either
ambassador had intervened with Croatian officials to secure the release
of an arms convoy in May 1994; and whether Ambassador Galbraith or
Ambassador Holbrooke had offered arms or funding to Bosnia or Croatia
(in light of concerns raised by CIA in October 1994). The IOB could not
reach definitive conclusions as to what, in its judgment, had occurred
in these episodes, but its report set forth what had probably occurred:
no improper encouragement to President Tudjman; no intervention to help a
convoy by Ambassador Galbraith, but probable intervention by Ambassador
Redman without any belief that the convoy carried arms; and no offer of
arms or funding in September 1994. The report included no specific
recommendations, although it did contain some mild criticism of various
agencies' conduct. Conclusions as to the legal implications of the IOB's
findings were reportedly left to the White House counsel, who consulted
with the chairman of the IOB and concluded that no U.S. actions
constituted covert action or, therefore, required a presidential finding
or congressional notification pursuant to section 503 of the National
Security Act of 1947.
THE USE OF SECRET DIPLOMACY
Deputy Secretary of State Talbott testified to the Committee that policy
makers in 1994 faced a difficult situation. They believed that the
Bosnian Government was "on its last legs militarily and in some ways
politically," and that it needed more arms to hold out against Serbian
attacks (although U.S. intelligence agencies tended to believe that most
of the Government of Bosnia's territory could be held without such
assistance). They saw multilateral lifting of the arms embargo as
impossible, given the fear on the part of European governments that this
would lead to a wider war and threats to the safety of UNPROFOR forces.
They feared that unilateral renunciation of the embargo would have the
same effect, as well as violating the U.N. Charter by "actively and
unilaterally supporting a violation of the arms embargo" and causing
"severe strains with our allies who had troops on the ground in Bosnia
as part of UNPROFOR and who naturally were giving priority to the safety
of their own people on the ground." They considered the prospect of
Bosnia and Croatia relying primarily upon Iran for military goods and
assistance to be the most significant "downside." But, Ambassador
Holbrooke testified to the Committee, "when the patient is on life
support systems, you make sure that the oxygen gets through to the
patient first. Then you worry about the source of the oxygen." And U.S.
policy makers feared that if the United States were to encourage other
countries -- no matter how quietly -- to themselves violate the embargo
so as to reduce the Iranian role, the word would get out regarding U.S.
encouragement and the results would be the same as if the United States
had openly renounced the embargo.
President Tudjman's question in April 1994 presented a challenge to U.S.
policy makers, but they also saw it as an opportunity. By simply saying
nothing, or by telling President Tudjman that the United States had
nothing to say, the United States could refrain from encouraging
violations of the embargo, but also refrain from stopping the flow of
arms that it believed was essential to Bosnia's survival. It was also
essential, however, to keep this policy secret so as not to prompt
either Serbian reprisals or severe European reactions (such as a
pull-out of UNPROFOR). Executive branch officials, and notably the
National Security Adviser, decided that the best way to do this was to
keep the "no instructions" decision very secret and to maintain no
written record of its implementation.
According to the National Security Adviser, the decision on how to
respond to Croatia's April 1994 query was made by the President, after
being briefed by Mr. Lake and with the knowledge and support of senior
State Department officials. But the Department of Defense and the CIA
were not involved in that decision; and although subsequent development
and consideration of policy options involved the full range of foreign
policy and national security agencies, the "no instructions" policy was
carried out principally, if not wholly, by Department of State
personnel. Thus, discussions of the Iranian arms shipments in the
Principals Committee of the NSC (notably in May 1994) left out any
mention of the "no instructions" instruction. And Deputy Secretary
Talbott did not explain the implications of the "no instructions" policy
to DCI Woolsey when they met on May 5, 1994.
No written instructions were sent to Ambassador Galbraith on how to
answer Croatian President Tudjman's question; rather, a Deputy Assistant
Secretary of State called him on April 28, 1994, to relay the "no
instructions" order and an NSC staffer who spoke with him the next day
confirmed that those remained his instructions. National Security
Adviser Lake told Ambassador Redman in early May, 1994, that it would
not be necessary for him or Ambassador Galbraith to compose a cable on
their implementation of the "no instructions" instruction. Deputy
Secretary of State Talbott told Ambassador Galbraith on May 6, 1994,
that a cable would be in order, but not until the Assistant Secretary or
his deputy got back to Galbraith -- which was never done. The only
detailed record of how the "no instructions" policy was implemented is
contained in a memorandum for the record that Ambassador Galbraith wrote
on May 6, 1994, and placed in his own files, which is also
countersigned by his Deputy Chief of Mission.
The consequences of these actions were, on one level, a complete
success. While other countries and, indeed, the foreign and domestic
press spoke of the United States turning a blind eye to Iranian arms
flows, neither the Serbs nor the Europeans took the actions that the
United States had feared would breed a wider and bloodier war.
The consequences of this secrecy were also substantial, however. The
failure to give Ambassador Galbraith written instructions led to what
some officials saw as a security breach -- the ambassador's April 29
cable to State Headquarters on his first transmission of the "no
instructions" reply to President Tudjman -- because Ambassador Galbraith
did not understand that "no instructions" had, in fact, been adopted as
U.S. policy. The lack of a written policy and the failure of policy
makers to explain the "no instructions" decision clearly to DCI Woolsey
led to continued CIA sensitivity to, and reporting on, the possibility
of an illegal covert action, which itself led to State Department
distrust of CIA personnel. The failure to inform the Joint Staff led to
occasional confusion among high-ranking U.S. officers in Europe
regarding whether there was a covert action program to support the
Bosnian Government. Finally, on February 2, 1996, the NSC press office
prepared inaccurate press guidance that the United States had "always"
made clear we expected other countries to abide by the arms embargo.
The failure to keep other Executive branch officials properly informed
of U.S. policy was accompanied by the failure to inform Congress. The
Committee was not notified of the U.S. "no instructions" decision or of
any subsequent actions to encourage the flow of arms to Bosnia. The
Committee is not aware of any such notice to any other committee of the
Senate or the House of Representatives, moreover, although the U.S.
Ambassador to Croatia testified that as early as the summer of 1994, he
told congressional visitors to Zagreb that the United States was not
objecting to arms shipments. Aside from its legal implications, this
failure to inform was surely unwise. At a minimum, the appropriate
committees should have been informed of the "no instructions" policy.
This was, by the Administration's own admission, a significant event. It
was not traditional diplomatic activity.
The Central Intelligence Agency and other intelligence agencies were
aware of Iranian arms shipments to Bosnia and reported regularly on
them. Appropriate committees of Congress received that reporting by
early June 1994, if not sooner. Briefings of the Senate Intelligence
Committee included straightforward discussion of the Iranian and other
arms flows. No questions were asked regarding U.S. policy toward the
arms flows, however, and no information was volunteered by intelligence
briefer regarding the unannounced U.S. policy.
By keeping from Congress the full truth about U.S. policy, the Executive
branch effectively limited Congress's ability to responsibly debate and
legislate on the Bosnia issue. Congress was intensely interested in the
Bosnia situation and was often sympathetic to the Executive branch's
concerns about the situation; in the end, it passed legislation that
closely paralleled the Executive branch's desire to let Bosnia get arms
without openly violating the United Nations Charter. Without a clear
understanding, however, of what the United States was, in fact, doing in
the region, Congress came perilously close to passing precisely the
legislation that the Executive branch wanted to avoid.
The activities of Ambassador Holbrooke in September-October 1994,
including his role in promoting the "Holbrooke initiative" (which he
testified was actually proposed by Bosnian Prime Minister Haris
Silajdzic), appear to have been only partially documented. Some meetings
discussed in other agencies' reporting are not covered in diplomatic
cables provided to this Committee, and while Ambassador Holbrooke has
testified that all his actions on this matter were taken with the
approval of Secretary of State Warren Christopher, the Department of
State has not provided the Committee any documentation supporting that
assertion. Ambassador Holbrooke did not seek legal review of his ideas,
moreover, until DCI Woolsey suggested this in early October 1994, over
two weeks after Holbrooke's discussions with visiting Bosnian and
Croatian officials. The absence of written instructions or legal
guidance bred a situation in which errors could readily occur and little
mistakes could get out of hand. If this did not occur, it may have been
due as much to the DCI's intervention as to the skill and care of State
Department officials.
Finally, U.S. acceptance of Iranian arms flows to Bosnia and Croatia led
to some difficult -- although, in the view of Ambassador Holbrooke and
other officials, not unmanageable -- foreign policy consequences. While
U.S. intelligence does not indicate that Iran increased its personnel in
Bosnia as a result of its resumed arms role in 1994-1995, the Iranians
surely did maintain and probably increased their influence in Bosnia.
Iranian personnel trained Bosnians as well as supplying arms to them,
and ties were forged with officials in the ruling party that reinforced
Bosnia's transition from a multi-ethnic government to one in which
Moslem separatism parallels the ethnic stridency of the principal
Bosnian Croat and Serb parties. In addition, Croatian officials for a
time found it hard to reconcile U.S. support of Iranian arms flows to
Bosnia with continued U.S. support for other United Nations arms
embargoes (such as that against Libya) and opposition to Iranian support
for terrorism. They remained less supportive of U.S. policy in these
regards than one would wish until the increased U.S. role in NATO
airstrikes and the peace talks gave Croatian officials more confidence
that they could afford to alienate Iran.
ALLEGATIONS OF GREATER U.S. INVOLVEMENT
The Committee examined three episodes that were covered in the IOB
investigation, in which U.S. involvement in the arms flow to Bosnia was
alleged to have gone beyond the "no instructions" policy: Ambassadors
Galbraith and Redman's comments to President Tudjman in April 1994;
whether either ambassador had intervened with Croatian officials to
secure the release of an arms convoy in May 1994; and, as discussed
earlier in this report, whether Ambassador Galbraith or Ambassador
Holbrooke had offered arms or funding to Bosnia or Croatia in September
1994. The Committee also inquired into the September 1995 U.S.
inspection of rockets seized by Croatia.
Testimony to the Committee confirmed published reports that when
Ambassador Galbraith delivered the "no instructions" message to Croatian
President Tudjman in April 1994, he told him to note what he did not
say, as well as what he did say. Ambassador Redman later told President
Tudjman that the United States did not want to have to say "no" to the
latter's question regarding the transshipment of arms into Bosnia. While
these comments could be seen as going beyond the "no instructions"
instruction, U.S. policy makers and the IOB concluded that they had not
done so.
Committee witnesses and interviewees left open the possibility that
Ambassador Redman (but not Ambassador Galbraith) had intervened at least
to make Croatian officials aware that the detention of a Bosnian convoy
by Bosnian Croats was having an impact on negotiations between Bosnia
and Croatia in Vienna. The documentary record suggests, however, that
Ambassador Redman, like Ambassador Galbraith, in fact may not have
intervened in this matter. The Committee was also unable to find
convincing evidence that the convoy contained arms, although that cannot
be ruled out.
Regarding the September 1995 U.S. inspection of rockets that Croatia
hadseized on their way into Bosnia, Ambassador Holbrooke testified that
Croatianofficials feared the rockets might have chemical-weapons
warheads. The Committee examined this incident to determine whether U.S.
activities relating to it constituted covert action undertaken without a
presidential finding or required congressional notification under
sections 501, 502 or 503 of the National Security Act of 1947. Witnesses
and interviewees gave somewhat divergent accounts of the matter, and
the documentary record provided to the Committee did not provide a
complete account of U.S. decisions and actions. The Committee was unable
to determine, in particular, whether U.S. officials undertook or used
this inspection so as to encourage the flow of arms to Bosnia.
The Committee also inquired into several allegations that the U.S.
military and/or the CIA were involved in improperly aiding the Bosnian
Muslims, including allegations made by UNPROFOR and UN troops and by
French, British and/or other European officials. Most of these charges
were circulated in Europe and reported in European and American
newspapers. The allegations included the following: (1) In March 1994,
the French alleged that U.S. airdrops into Bosnia included arms; (2) A
series of accounts alleged U.S. military and CIA involvement in covertly
aiding the Bosnian Muslims appeared in Europe and later in American
newspapers. A London Times article of August 14, 1994, titled "CIA plans
to arms Bosnian Muslims," reported that "President Clinton ordered the
Central Intelligence Agency (CIA) and the Pentagon to prepare a covert
arms pipeline and weapons training programme for the Bosnian Muslims;" a
November 1994 article in The European , a British weekly, claimed that
EUCOM Deputy Commander General Charles Boyd had worked out a covert
assistance program during a visit with the Bosnian Army's 6th Corps
commander in the city of Gornyi Vakuf; (3) On February 10 and 12 1995,
UNPROFOR (United Nations Protection Force in Bosnia) personnel reported
that mysterious late-night flights of single-engine and multi-engine
transports landed at airfields in Tuzia and off-loaded large amounts of
materiel; (4) Europeans claimed that a private American company of
retired U.S. military officers, Military Professional Resources of
Alexandria, Virginia, contracted first with the Croatian government and
then with Bosnian Muslims to "promote leadership development" and was,
in fact, acting on behalf of the U.S. Government; (5) A team of retired
U.S. officers led by retired General John Galvin,which trained senior
staff of the Muslim-Croat army, was alleged to beacting on behalf of the
U.S. Government; and (6) Armed military personnel dressed in American
uniforms (and, in some reports, with difficult-to-obtain U.S. military
equipment), as well as U.S. special forces personnel, were reported to
have been seen in Bosnia at various times.
Finally, one United States Senator recalled that when the Nunn-Mitchell
amendment ending U.S. enforcement of the arms embargo against Croatia
and the Bosnian Muslims was being considered in a defense authorization
conference, Admiral Jeremy Boorda stated that the U.S. Navy picket in
the Adriatic Sea was not enforcing the embargo against those countries,
but only against the Serbs. As the Senator recalled it, Admiral Boorda
said that the Navy was searching only those vessels bound for a port
generally associated with arms flows to the Serbian side.
The French allegation of U.S. airdrops appears to be false. Both the
Department of Defense and the Central Intelligence Agency investigated
this incident and concluded that there was no activity of this sort.
These conclusions were supported in informal sessions with Secretary of
Defense Perry, Joint Chiefs of Staff Chairman Shalikashvili and National
Security Adviser Lake, and in open testimony by former Assistant
Secretary Holbrooke. The Committee was unable to find documentation of
the internal investigations or to locate Defense Department personnel
involved in them, however, so this conclusion is necessarily tentative.
Allegations regarding U.S. military or CIA involvement in the arms flow
also appear to be false. The CIA has categorically denied these charges,
and personnel who looked into them have confirmed that no evidence of
any CIA involvement was found. With regard to the allegation that
General Boyd made a secret deal with the Bosnian Muslims in Gornyi
Vakuf, Ambassador Holbrooke testified that he was with General Boyd on
that trip and that there were no secret discussions at all, adding: "I
am here again today, under oath, Mr. Chairman, to assure you that the
stories were obviously not true. Had they been true, we would have been
in violation of the law, and we don't do that sort of thing." The
Committee was unable to track down every possible manner in which CIA or
other U.S. personnel might have encouraged arms flows, however, without
engaging in a much lengthier investigation.
The Department of Defense investigated the Tuzla allegations, both as
part of a NATO investigation and for U.S. policy makers. While the
documentation of that investigation is scant, its conclusions -- as
reported both to the public and, in private briefings, to U.S. officials
-- were that there was no air activity that would suggest arms
deliveries and certainly no U.S. involvement. DoD and CIA documents on
the Tuzla incidents that the Committee has seen, as well as the
recollections of both CIA analysts and senior Defense Department
officials, strongly support the conclusion that there was no U.S. role
in any clandestine military airlifts.
Regarding Military Professional Resources of Alexandria and the Galvin
team, the Committee asked the Intelligence Oversight Board what the
Board was able to determine about reports of former U.S. military
officers engaging in military support activity in Bosnia and Croatia.
The IOB responded that it had heard reports of U.S. private citizens
engaging in military support activity in Bosnia or Croatia, but found no
U.S. Government nexus to those people. General Galvin's 15-man
fact-finding mission was accused of engaging in training, but the Board
found no evidence of that. This issue was also discussed with numerous
witnesses who appeared before the Committee. No one was able to provide
any evidence supporting European allegations of covert military support
activity by any of these individuals. It must be noted that Military
Professional Resources of Alexandria has received a contract to train
and equip Bosnian-Croat Federation forces.
The Committee has seen no documentation of Executive branch inquiries or
investigations in this matter, however, and has not conducted a full
investigation of its own. The Committee has heard an allegation that at
least one former U.S. military person who hired himself out as a
free-lance trainer in Bosnia may have convinced U.S. personnel, falsely,
that he was a U.S. intelligence employee and thereby obtained unusual
access within the U.S. Embassy in Sarajevo. CIA has stated -- as did
several interviewees -- that the U.S. Government has no relationship
with that individual.
The Committee asked several interviewees about allegations from United
Nations and UNPROFOR troops that there were armed military personnel
dressed in American uniforms and U.S. special forces personnel operating
in Bosnia. These included an incident in which a Canadian officer
observed "U.S. military personnel off-loading an American aircraft."
These reports have not been substantiated. A possible explanation for
the sighting of U.S. special forces personnel was provided by Lt.
Colonel Richard Herrick, a former U.S. Defense Attache in Zagreb, who
once made a duty-related visit to the Bosnians in his uniform -- which
has a Special Forces badge -- and ran into some UNPROFOR personnel
there. Soon thereafter, there was a rumor of a U.S. Special Forces
officer training Muslim forces.
Committee staff asked General Wesley Clark, former Director of Strategic
Plans and Policy on the Joint Staff, whether he knew of any U.S. Navy
policy, or even latitude, before the Nunn-Mitchell amendment went into
effect, not to search suspect vessels in the Adriatic that were bound
for ports associated with arms flows to Croatia or the Bosnian Muslims.
General Clark denied this in the strongest terms and specifically
recalled that he had reviewed the blockade instructions in November
1994, in preparation for the entry into effect of the Nunn-Mitchell
amendment, and that there had been no leeway for selective enforcement
in the instructions. He was confident that, had there been such
selective enforcement,, he would have known about it. He also firmly
believed that U.S. allies would not have stood for such selective
enforcement before November 1994.
The Committee did not review U.S. Navy documentation or interview
officers who participated in the blockade in 1994, so it cannot resolve
the conflict between Admiral Boorda's reported comments and General
Clark's recollection. One possible explanation for the comments that
Admiral Boorda reportedly made is that after a few ships were seized,
very few vessels entered the Adriatic with arms bound for Croatia or the
Bosnian Muslims. Thus, while the naval blockade apparently continued to
cover all ships suspected of carrying arms to the former Yugoslavia,
its impact was probably felt differentially by the Serbian side. Perhaps
Admiral Boorda was only trying to make that point.
In sum, the Committee found no tangible evidence that U.S. military
forces or the CIA provided material support or training to Croatia or to
the Bosnian Muslims. The Committee cannot be totally sure, however, in
light of the limited documentary record and the Committee's inability to
locate and interview personnel who investigated various allegations.
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.
Section 503(e) of the National Security Act defines "covert action" as
"anactivity or activities of the United States Govemment to influence
political, economic, ormilitary conditions abroad, where it is intended
that the role of theUnited States Govemment Will not be apparent or
acknowledged publicly." Certain activitiesare 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. 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 theintelligence
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.
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 ofState 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 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, , 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.
ADDITIONAL VIEWS OF DISSENTING SENATORS JOHN GLENN, RICHARD H. BRYAN AND BOB GRAHAM
We oppose the Committee Report on U.S. Actions Regarding Iranian and
Other Arms Transfers to the Bosnian Army, 1994-1995 because we disagree
with the analysis contained in this Report. The evidence developed by
the Committee inquiry to date clearly indicates that there was no covert
action related to the transfer of Iranian arms to Bosnia.
Certainly, United States diplomatic actions surrounding the situation in
Bosnia were not routine. This difficult situation was compounded by
what may have been excessive secrecy in the Executive Branch regarding
its policy towards Bosnia, a failure to keep Congress formally informed
of an emerging United States policy, and a failure of the Executive
Branch to keep adequate records of its activities and decisions. While
the Committee Report examines these issues, we do not agree with the
Report's analysis on the question of whether a covert action occurred,
and the conclusion that United States officials went beyond "traditional
diplomatic activity."
NO COVERT ACTION
Section 503(e) of the National Security Act defines "covert action" as
"an activity or activities of the United States Government to influence
political, economic, or military conditions abroad, where it is intended
that the role of the United States Government will not be apparent or
acknowledged publicly." Certain activities are exempted from the
definition, including "traditional diplomatic or military activities."
Our analysis of the facts as collected by the Committee clearly indicate
that the activities of the Administration did not constitute covert
action under this definition.
TRADITIONAL DIPLOMATIC ACTIVITY
The Committee Report states 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." While the public's definition of
the term "traditional diplomatic activity" can be disputed, the Senate's
understanding of this term is clear. We rely on the definition in the
Senate Report on the Fiscal Year 1991 Intelligence Authorization Bill.
(Senate Report 102-85, pp. 45-46) This definition describes precisely
the exchange between Ambassador Galbraith and President Tudjman when it
defines the term as "the use of diplomatic channels or personnel to pass
messages and conduct negotiations between the United States and other
Governments or foreign entities."
Moreover, Committee witnesses who addressed this issue
consistentlydescribed the exchange as traditional diplomatic activity.
For example:
Morton Halperin, former Department of Defense and National Security
Council official: "... the action here was standard diplomatic
activity..."
Lloyd Cutler, former counsel to President Carter and President Clinton: "...this was, at most, a diplomatic communication."
John Deutch, Director of Central Intelligence: "In my judgment it was a
secret diplomatic exchange, which happens a million times a day... "
The Honorable Peter Galbraith, Ambassador to Croatia: "This was ... in my view, purely a diplomatic exchange... "
The Honorable Strobe Talbott, Deputy Secretary of State: "... we felt
this to be at the time a genuinely and purely diplomatic exchange, a
confidential diplomatic exchange."
The Committee's lengthy inquiry into this issue clearly shows that no
covert action occurred in relation to the Iranian arms transfers to
Bosnia. Because covert action was one of the fundamental issues to be
addressed when this inquiry was requested by then-Senate Majority Leader
Robert Dole, we do not understand why the Committee failed to make a
judgment on this issue.
ADDITIONAL VIEWS OF SENATOR JOHN KERRY
In undertaking an inquiry into the matter of Iranian arms shipments to
Bosnia, the central question facing the Senate Select Committee on
Intelligence was whether or not U.S. Government officials had engaged in
an unauthorized covert action to encourage those shipments. The
Committee could not reach agreement on this point and the Committee
Report fails to answer this critical question. By not taking a stand on
the issue of covert action the Report sows doubt where none should
exist, and leaves a strong impression that the activities of U.S.
diplomats may have crossed the line into the realm of covert action. The
facts as outlined in the Report clearly indicate that the U.S. policy
of not objecting while Iranian arms flowed to Bosnia was not a covert
action.
While the Report takes no position on the issue of covert action, it
concludes that the events surrounding the delivery of the "no
instructions" message to President Tudjman were "not traditional
diplomatic activity." The Report bases this conclusion primarily on the
substance of the policy rather than the activities associated with
delivering the message. The Report describes the episode as "not
traditional diplomatic activity" because the "no instructions" message
meant that the United States in effect turned a blind eye to activity
that violated a United Nations Security Council resolution and because
that activity involved Iran, a country sanctioned under U.S. law.
Certainly the policy of standing mute while Iranian arms flowed to
Bosnia had significant ramifications and was highly unusual both in
substance and in execution. The United States normally does not and
should not condone violations of U.N. Security Council resolutions, and
three successive U.S. administrations have attempted to isolate Iran for
its support of international terrorism. Actions contrary to these
public policies contained notable risks and consequently they cannot be
considered part of normal, everyday U.S. diplomacy. However, by stating
categorically that this exchange was "not traditional diplomatic
activity" the Report could lead readers to the false conclusion that it
was covert action -- a conclusion I do not support.
The term "traditional diplomatic activity" is not defined in statute.
The Report purports to use it as it "is understood by most Americans"
rather than in a specific legal context. The term is used, however, in
Section 503 of the National Security Act of 1947. This Section defines
covert action and specifically excludes "traditional diplomatic
activity" from the definition. Since the Report uses the term in the
context of an analysis of possible covert action, readers might
incorrectly assume that the Report has concluded that the actions of
U.S. diplomats in this case are not covered by the legal exemption for
"traditional diplomatic activity."
Although I disagree with the tone of the Report regarding covert action,
I endorse its findings concerning the inadequacy of communication
between Executive branch agencies, and between the Executive branch and
Congress. Much of the confusion and suspicion surrounding events in
Croatia and Bosnia in 1994 could have been avoided if the Defense
Department and the Intelligence Community had participated in the
decision making process leading up to the "no instructions" response. At
the very least, State Department and National Security Council
officials should have adequately explained the decision to their
counterparts in these other agencies.
As the Report points out, the failure to keep Congress completely
informed limited our ability to responsibly debate and legislate on the
Bosnia issue. Congress cannot fulfill its responsibilities when critical
information is not shared. Additionally, the Administration should have
consulted with the Congress and explained the risks associated with the
tacit acceptance of Iran, one of the world's most dangerous states, as.
the supplier of arms. The two branches of government must act
cooperatively on matters affecting our national security. James Risen
and Doyle McManus, "U.S. OKd Iran Arms for Bosnia, Officials Say,"
Angeles Times , April 5, 1996, p. Al.
2. As far as the Committee can determine, the U.S. Government did not
implement any of the arms flow ideas explored by the J-5 in this
meeting.
3. The "no instructions" decision of April 1994, which is discussed
later in this report, was to have U.S. Ambassador Peter Galbraith tell
the President of Croatia that he had no instructions regarding U.S.
reaction to the proposed resumption of Croatian transshipment of arms --
mostly from Iran -- to the Bosnian Muslims.
4. See, however, the Committee's discussion later in this report of applicability of the National Security Act of 1947.
5. See, for example, Tim Weiner and Raymond Bonner, "Gun-Running in the
Balkans: C.I.A. and Diplomats Collide," The New York Times , May 29,
1996, p. Al; and Walter Pincus and David B. Ottaway, "Hill Panels May
Enter Controversy Over CIA Action on Croatia Envoy," The Washington Post
, June 2, 1996, p. A12.
6. Since the Executive branch never formally approved any covert
action program to help the Bosnian Government, there was also no
notification of Congress pursuant to section 503 of the National
Security Act of 1947.
7. The law does not define "traditional diplomatic activities". The
Senate Report on the Fiscal Year 1991 Intelligence Authorization bill
(which contained the amendments to Title V ofthe National Security Act
of 1947 adding the definition of covert action) states that
thisexception in the definition includes: the use of diplomatic channels
or personnel to pass messages and conduct negotiations between the
United States and other governments or foreign entities. Traditional
diplomatic activities, in this context, include activities long
understood and accepted to be diplomatic in nature, including the use of
private citizens as intermediaries. They do not include activities that
cannot reasonably be considered to be diplomatic in character, despite
characterizations by some administration officials, such as the covert
sales of arms to Iran. Such an operation went well beyond the
traditional and accepted definition of diplomacy because of the means
employed (e.g., financial transactions). This language does not answer
the question of whether U.S. actions regarding the "no instructions"
policy constituted traditional diplomatic activities. Clearly not every
use of diplomatic channels or personnel to pass messages is exempt from
being judged a covert action under the law. A diplomatic conversation in
which, for example, a third party is given instructions for undertaking
a covert action on our behalf is not exempt from the definition merely
because it is implemented by a diplomat.
8. Intelligence Authorization Act, Fiscal Year 1991, Conference Report,
House of Representatives Report No. 102-166, 102nd Cong, 1st Session,
July 25, 1991, p. 28.
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