LETTER TO HONORABLE STROM THURMOND FROM WILLIAM J. CASEY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP83M00914R001900170029-7
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 10
• Document Creation Date: December 20, 2016
• Document Release Date: February 21, 2007
• Sequence Number: 29
• Publication Date: December 22, 1981
• Content Type: LETTER

Approved For Release 2007/02/21: CIA-R DP83M00914R001900170029-7
The Director of Central Intelligence
b shington,DC20505
Honorable Strom Thurmond, Chairman
Committee on the Judiciary
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman:
82 DEC 0b
The Committee on the Judiciary recently reported S. 1630,
the Criminal Code Reform Act of 1981, recommending favorable
Senate action. I share the view of the Committee and the
Administration that the nation needs a comprehensive revision
of the federal criminal code, but I am concerned that the
provisions of S. 1630 appear to have been developed without
sufficient consideration of their effect on the ability of
the Intelligence Community to carry out its mission.
I am sure that the Committee on the Judiciary intended
no detriment to the conduct of legitimate foreign intelligence
activities, but the provisions of S. 1630 do not clearly
reflect that intention. The lack of a definitive statement on
the relationship between the proposed criminal code and the
conduct of intelligence activities, combined. with the proposed
code's expansion of extraterritorial federal criminal juris-
diction, gives rise to uncertainties which could seriously
impair our intelligence efforts. Moreover, under S. 1630
.as reported by the Committee, an intelligence officer engaged
in legitimate intelligence activities would be able to rely
only on prosecutorial discretion and on the common law defense
of exercise of public authority to shield him from criminal
liability. Our nation's intelligence officers should not be
put in such a position.
Sections 201(b)(1)(B) and 204(i) of S. 1630 establish,
for the first time in federal criminal law, general extra-
territorial jurisdiction over the conduct of nonmilitary
federal public servants outside the United States for the
purpose of performing official duties. Offenses defined
with domestic circumstances in mind may therefore apply in
vastly different circumstances to the activities of public
servants abroad. For example, the offenses of Theft
(section 1731), Trafficking in Stolen Property (section 1732),
Receiving Stolen Property (section 1733), and Executing a
Fraudulent Scheme (section 1734), when combined with the new
general extraterritorial jurisdiction provision, could be
construed to prohibit federal public servants abroad engaged
 Approved For. Release 2007/02/21 : CIA-RDP83M00914RO01900170029-7
in the collection of foreign intelligence from clandestinely
acquiring foreign documentary materials or other property
of foreign intelligence value. Similar problems arise with
respect to the relationship of other sections of the Bill
to the new general extraterritorial jurisdiction over the
conduct of federal public servants. I should also note that
provisions of the proposed.crim;inal code could be misconstrued
to apply in those limited circumstances in which foreign
intelligence activities are properly conducted in the United
States.
Comprehensive revision of the criminal code provides
the opportunity for an explicit statement that the conduct
of legitimate intelligence activities does not give rise to
criminal liability, and that the Congress does not intend
enactment of the new code to require agencies of the
Intelligence Community to apply American criminal law
standards throughout the world in the collection of foreign
intelligence. I strongly recommend, therefore, that S. 1630
be amended by adding at the end of the Bill the following
new section:
"PART KK--EFFECT ON INTELLIGENCE ACTIVITIES
SEC. 731. Nothing in title 18, United States Code,
or any other federal criminal statute shall be
construed to create criminal liability for the
conduct of intelligence activities by a federal
public servant that are authorized and conducted
in accordance with the Constitution and applicable
federal statutes, Executive orders, presidential
directives, and departmental or agency regulations,
which regulate the conduct of intelligence activities."
I would emphasize that this provision would protect
.intelligence officers whose activities are both authorized
and conducted in accordance with the Constitution and the
well developed, detailed body of statutes., Executive Orders,
and implementing procedures regulating the conduct of.
intelligence activities. The provision would not protect an
intelligence officer engaged in an improper intelligence
activity, nor would the provision itself authorize any
intelligence activity.
In addition to proposed section 731 which will assure
harmony between the criminal code and federal law governing
the conduct of intelligence activities, several other
amendments to S. 1630 are needed to protect federal interests
related to intelligence activities. Section 1205 of the
Bill provides only partial protection against unauthorized
disclosure of diplomatic codes and communications, and several
sections of the Bill which protect certain federal public
servants and foreign visitors from violent crime fail to
protect intelligence personnel. I have enclosed proposed
amendments to strengthen these sections.
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I believe that one final, and crucial, modification
of S. 1630 should be made. The Bill should provide more
effective criminal sanctions against espionage and
unauthorized disclosure of intelligence information.
My staff is studying this issue thoroughly, and I will
.be forwarding my recommendations on this matter to you
separately.
I appreciate very much the opportunity to express my
views on this important legislation. I look forward to
enactment of a comprehensive federal criminal code which
will comport with the nation's need for an effective
Intelligence Community.
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Amendments to S. 1630
...Section 1205
Disclosing.a Foreign,Diplomatic Code or Correspondence
Amendment (pagination of S. 163 as introduced)
On page 52, strike Section 1205 and substitute:
"1205. Disclosing A Diplomatic Code or Communication
(a) OFFENSE.--A person commits an offense'if he,
with'out,lawful authority, willfully publishes or
otherwise discloses-
(1) any diplomatic code.or any..information or
matter prepared in such.code; or
(2) any information or matter intercepted while
in the process of transmission between a foreign
government and its diplomatic missions
to which access was obtained as a federal public servant.
(b) DEFINITIONS.--As used in this section--
(1) 'information' includes any property from which
information may be obtained;
(2) 'intercept' has the meaning-set forth in
section 1526(d); and
(3) 'federal public servant' includes any officer or
employee of the United States or of any department or
agency thereof, or of any corporation or institution
the stock of which is owned in whole or in part by
the United States or which is established by the
United States to act on its behalf, members of the
armed services and contractors of the United States.
Government and their employees."
Explanation
Section 1205 of S. 1630 is seriously deficient in
comparison to the corresponding existing statutory provision,
18 U.S.C. 952, which protects against disclosure of both
foreign government diplomatic codes and communications and
United States diplomatic codes and communications. The
proposed amendment will carry forward the existing statutory
protection for both foreign and United States codes and
communications. Disclosure of foreign diplomatic codes and
communications severely damages the ability of the United
States to collect foreign intelligence since foreign nations
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will change their codes and methods of communications
immediately upon suspecting that the United States has
access to.them. The United States has an equally grave
interest in deterring disclosure of its own diplomatic
codes and communications to assure that it can conduct
foreign-policy effectively and avoid foreign government
intelligence efforts directed at' the United States.
The proposed amendment represents an advance over
existing 18 U.S.C. 952 in two respects: (1) it penalizes
disclosure of intercepts of foreign government diplomatic
communications with its diplomatic missions outside the
United States as well as those located in the United
States, and (2) it. includes within its ambit contractors
and their employees who have access to diplomatic codes or
communications in the course of. their work for the United
States. The amendment retains the current exclusion in
18 U.S.C. 952 of disclosures made with lawful authority.
 Approved For Release 2007/02/21 : CIA-RDP83M00914R001900170029-7
Amendments totS. 1630
.Protection of Intelligence Personnel
Amendments'(pagination of S. 1630 as introduced)
[1 - Murder, Manslaughter, Negligent Homicide, Maiming,
Aggravated Battery, Battery, Menacing, Terrorizing]
On page 96, line 2 AND page 98, line 10, after the phrase.
"an employee of the United States Probation System," appears,
insert:
"an officer or employee of any department or agency
within the Intelligence Community (as defined in section
3.4(f)?of Executive Order 12333, December 4, 1981, or
successor orders) not already covered under the terms
of this subparagraph,".
On page 96, line'19 AND page 98, line 27, strike the word "or".
On page 96, after line 21 AND on page 98, after line 29,
insert:
"(I) a person given entry into the United States for
permanent residence pursuant to the provisions of
section 7 of the Central Intelligence Agency Act of 1949
(50 U.S.C. 403h); or.
(J) a person certified by the Director of Central
Intelligence or his designee to be present in the United
States under the auspices of any department or agency
within the Intelligence Community (as defined in section
3.4(f) of Executive Order 12333, December 4, 1981, or
successor orders);".
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[2 - Kidnapping, Aggravated Criminal Restraint, Criminal
Restraint]
On page 102, line 8 after the phrase "an employee of the United
States Probation System," appear' s, insert:
"an officer or employee of any department or agency within
the Intelligence Community (as defined in section 3.4(f)
of Executive Order 12333, December 4, 1981, or successor
orders) not already covered under the terms of this
subparagraph,".
On page 102, line 16, strike the word "or".
On page 102, after line 18, insert:
"(H) a person. given entry into the United States for
permanent residence pursuant to the provisions of
section 7 of the Central Intelligence Agency Act of 1949
(50 U.S.C. 403h); or
(I) a person certified by the Director of Central
Intelligence or his designee to be present in the United
States under the auspices of any department or agency
within the Intelligence Community (as defined in section
3.4(f) of Executive Order 12333, December 4, 1981, or
successor orders);".
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[3 - Arson, Aggravated Property Destruction, Property
Destruction]
On page 108, line 20 strike the word "or", and after line 21
insert:
"(F) a person given entry into the United States for
permanent residence pursuant to'the provisions of
section 7 of the Central Intelligence Agency Act of 1949
(50 U.S.C. 403h); or
(G) a person certified by the Director of Central
Intelligence or his designee.to be present in the United
States under the auspices of any department or agency
within the Intelligence Community (as defined in section
3.4(f) of Executive Order 12333, December 4, 1981, or
successor orders);".
 Approved For Release 2007/02/21 CIA-RDP83M00914R001900170029-7
Explanation
The proposed amendments provide federal criminal
jurisdiction for certain acts of violence directed at
three categories of persons:
(1) United States intelligence personnel engaged in
the performance of official duties,
(2) aliens admitted to the United States under the
Central Intelligence Agency Act of 1949 because of
their critically important contributions to the-national
intelligence mission, and
(3) foreign nationals temporarily present in the United
States under the auspices of a department or agency
within the Intelligence Community to further U.S.
intelligence objectives.
Federal criminal jurisdiction for acts of violence directed
at these categories of persons is lacking both under current
federal law and under S. 1630, despite the clear and
compelling federal interest in protecting these people and
prosecuting crimes directed at them.
Under the proposed amendment crimes constituting murder,
manslaughter, negligent homicide, maiming,_,aggravated
battery, battery, menacing, terrorizing, kidnapping,
aggravated criminal restraint, or criminal restraint would
fall within federal criminal jurisdiction if the target of
such crimes were a U.S. intelligence officer or employee
engaged in official duties, an alien permanently admitted to
the U.S. under the CIA Act for his contribution to U.S.
intelligence objectives, or an alien temporarily in the U.S.
to assist a department or agency within the Intelligence
Community. In addition, the crimes of arson, aggravated
property destruction, and property destruction would fall
within federal criminal jurisdiction if the target of such
crimes. were an alien permanently admitted to the U.S. under
the CIA Act or an alien temporarily in the U.S. to assist a
department or agency within the Intelligence Community.
The Senate passed a similar version of this amendment
as section 510 of S. 1127, the Intelligence Authorization
Act for FY 1982. Subsequently, the House-Senate Conference
Committee deleted the provision from the legislation at the
insistence of the House conferees due to a jurisdictional
dispute between the House Permanent Select Committee on
Intelligence and the House Judiciary Committee.
 Approved For Release 2007/02/21 : CIA-RDP83M00914R001900170029-7
The Director of Central Intelligence
Washington. D 0.20505
Honorable Barry S. Goldwater, Chairman
Select Committee on Intelligence
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman:
The Committee on the Judiciary recently reported S. 1630,
the Criminal Code Reform Act of 1981, recommending favorable
Senate action. I share the view of the Committee and the
Administration that the nation needs a comprehensive revision
of the federal criminal code, but I am concerned that the
provisions of S. 1630 appear to have been developed without
sufficient consideration of their effect on the ability of
the Intelligence Community to carry out its mission. .
purpose of performing official duties. Offenses defined
with domestic circumstances in mind may therefore apply in
vastly different circumstances to the activities of public
servants abroad. For example, the offenses of Theft
(section 1731), Trafficking in Stolen Property (section 1732),
Receiving Stolen Property (section 1733), and Executing a
Fraudulent Scheme (section 1734), when combined with the new
general extraterritorial jurisdiction provision, could be
construed to prohibit federal public servants abroad engaged
put in such a position.
Sections 201(b)(1)(B) and 204(i) of S. 1630 establish,
for the first time in federal criminal law, general extra-
territorial jurisdiction over the conduct of nonmilitary
federal public servants outside the United States for the
I am sure that the Committee on the Judiciary intended
no detriment to the conduct of legitimate foreign intelligence
activities, but the provisions of S. 1630 do not clearly
reflect that intention. The lack of a definitive statement on
the relationship between the proposed criminal code and the
conduct of intelligence activities, combined with the proposed
code's expansion of extraterritorial federal criminal juris-
diction, gives rise to uncertainties which could seriously
impair our intelligence efforts. Moreover, under S. 1630
as reported by the Committee, an intelligence officer engaged
,in legitimate intelligence activities would be able to rely
only on prosecutorial discretion and on the common law defense
of exercise of public authority to shield him from criminal
liability. Our nation's intelligence officers should not be