Imposition of Agricultural Export Controls Under § 5 of the Export Administration Act of 1979 ( 1980 )

Imposition of Agricultural Export Controls Under § 5 of
the Export Administration Act of 1979
E xport o f agricultural com m odities can be restrained under the national security controls
o f § 5 o f the E xport Adm inistration A ct o f 1979 only if the exports in question
constitute " a significant contribution to the m ilitary potential” o f the im porting
country.
W hether grain exports will contribute significantly to the m ilitary potential o f the Soviet
Union is a question o f fact for the President to determine.
January 17, 1980
T he C oun sel to th e P r e s id e n t
M y D e a r S ir: I am responding to your memorandum of January 14,
1980, regarding the availability of § 5 of the Export Administration Act
of 1979, 50 U.S.C. App. § 2404, as a basis for the imposition of agricul­
tural export controls on exports to the Soviet Union. I agree that there
is sufficient factual basis to conclude that the invasion of Afghanistan
by the Soviet Union threatens the security of neighboring countries,
including Pakistan, and therefore threatens our security as defined by
§ 3(2)(A) of the Act, 50 U.S.C. App. § 2404(2)(A). I also agree that
§ 7(g)(1) of the 1979 Act contemplates that under appropriate circum­
stances the export of agricultural commodities can be restrained under
the national security controls of §5. See 50 U.S.C. App. § 2406(g)(1).
The remaining question is whether exports of grain in the amounts
involved here constitute “a significant contribution to the military po­
tential” of the Soviet Union as required by § 3(2)(A) of the 1979 Act.
The quoted language first appeared in the Export Administration Act
in 1962. Between 1949, when the Export Administration Act was first
adopted, and 1962, the President had been empowered to impose na­
tional security controls over exports based upon a standard of “neces­
sary vigilance over exports from the standpoint of their significance to
the national security.” Act of Feb. 26, 1949, § 2.1
In 1962, the 1949 Act was amended to limit the use by the President
of national security controls. The “national security” ground was refor­
11 n o te th a t th e 1949 A c t, as h as e v e ry am e n d m e n t to it since, sin g le d o u t a g ric u ltu ra l c o m m o d itie s
fo r special c o n s id e ra tio n w ith re g a rd to e x p o rt c o n tro ls . T h e 1979 A c t reem p h asize s th a t h isto ric
c o n c e rn , se ttin g fo rth in § 3 (1 1 ) a p o licy “ to m inim ize re s tric tio n s o n th e e x p o rt o f a g ric u ltu ra l
c o m m o d itie s an d p ro d u c ts ."
i
mulated to authorize export controls “if the President shall determine
that such export makes a significant contribution to the military or
economic potential o f” (emphasis added) a nation to be subjected to
restrictions. This amendment clearly expressed a congressional determi­
nation that the contribution made by any embargoed goods be both
significant and related to either the military or economic sectors of the
foreign country involved.
In 1969, Congress further restricted the “national security” power
over exports by removing, over the objection of spokesmen for the
Nixon Administration, the phrase “or economic” from the language of
what is now § 3(2)(A). This amendment was proposed in a bill cospon­
sored by then Senator Mondale in order to restrict the President’s
power over exports.
The legislative history and evolution of the President’s power to
control exports in the name of “national security” is instructive with
regard to interpretation of the critical language in § 3(2)(A) in two
regards. First, the goods to be embargoed must make a significant—as
opposed to a minimal or marginal—contribution to military potential.
The structure of the 1979 Act and its legislative history suggest that
this significance may be based on either the volume or the nature of
any particular proposed export. Second, this “significant contribution”
must have an articulable factual nexus to “military potential.”
Your memorandum of January 14, without stating a basis for its
conclusion, assumes the basic factual predicate to invocation of § 5.
At the time I wrote my memorandum of January 10,’ none of the
agencies with access to the relevant information had come forward
with facts that would establish a nexus between the grain embargo and
the military potential of the Soviet Union as required under § 3(2)(A).
You now advise that the Deputy Secretary of Defense has concluded
on the basis of intelligence reports and historical experience: (1) That
the denial of grain in the amounts involved here will significantly
undermine public support among the Soviet populace for the Afghani­
stan invasion; and (2) that this deterioration of public support will
undercut the resolve of the Soviet leadership to continue the occupa­
tion of Afghanistan. On this ground the Deputy Secretary of Defense
has determined that these grain shipments make a significant contribu­
tion to the willingness and ability of the Soviet leadership to continue
military operations in Afghanistan, and this resolve on the part of the
Soviet leadership is an essential component of the “military potential”
of the Soviet Union.
* N o t e : In a m e m o ra n d u m d a te d J a n u a ry 10, 1980, th e A tto r n e y G e n e ra l re c o m m e n d e d to th e
P re s id e n t th a t h e re ly o n ly u p o n § 6 o f th e 1979 E x p o rt A d m in istra tio n A c t, a n d n o t u p o n § 5 , in
c o n n e c tio n w ith his im p o sitio n o f a g ric u ltu ra l e x p o rt c o n tro ls . S e c tio n 6 a u th o riz e s e x p o rt c o n tr o ls “ to
th e e x te n t n e c e ssa ry to fu rth e r s ig n ific a n tly th e fo reig n p o lic y o f th e U n ite d S ta te s o r to fulfill its
d e c la re d in te rn a tio n a l o b lig a tio n s.” 50 U .S .C . A p p . § 2405(a)(1). E d .
2
The reason you advance in your January 14 memorandum for invok­
ing § 5 as well as § 6 “when the action is clearly supportable under § 6
alone,” is your judgment that the reliance on national security grounds
will decrease the chances of a significant effort to organize a two-house
veto as the statute provides in the case of § 6 actions. But there will be
a report under § 6 in any event. And if there are to be hearings and if a
resolution of disapproval is to be introduced, as we suspect will happen
in any event, the procedural vehicle will be available. I also understand
that it is your judgment, as well as the general consensus of the other
involved agencies, that such a resolution of disapproval will fail regard­
less of whether we rely on § 6 alone or on both §§ 5 and 6. Therefore it
is difficult for me to understand what strategic advantage is to be
gained by including § 5.
I understand that you have put forward a second argument, which is
not included in your January 14 memorandum, to the effect that Presi­
dent Carter said in the 1976 campaign that he would cut off grain sales
to the Soviet Union only when national security required. But it seems
rather clear from the series of campaign statements that the President in
1976 was not talking in the technical language of the Export Adminis­
tration Act. He clearly served notice at that time that armed aggression
by the Soviet Union which threatened our allies would constitute the
kind of extreme circumstance in which it might be necessary to cut off
the export of grain as well as other goods and materials to the Soviet
Union. Whether the particular action would be taken under § 5 or § 6
of the Export Administration Act was not the issue. The President’s
action of blocking exports in this case is consistent with his 1976
statements.
In sum, the question whether the grain exports at issue here contrib­
ute significantly to the military potential of the Soviet Union is a
question of fact. That question is for the determination of the President,
and if he makes such a determination on the facts of this case he is
authorized to invoke § 5. However, it is my view that the wiser course
is to proceed on the basis of § 6 alone. I believe that the controversy
and debate that will be generated in the Congress over the President’s
invocation of the limited national security authority provided under the
Export Administration Act will unnecessarily cloud the real issue,
which is the decision to cut off these grain shipments to the Soviet
Union.
Sincerely,
B e n ja m in R. C iv ile tti
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