WORKING GROUP REPORT ON INTELLIGENCE CHARTER LEGISLATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00988R000200160004-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 31
• Document Creation Date: December 20, 2016
• Document Release Date: November 6, 2007
• Sequence Number: 4
• Content Type: REPORT

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WORKING GROUP REPORT
INTELLIGENCE CHARTER LEGISLATION
NSA review
completed
On February 8, 1380 Senators Huddleston, Bayh, r:athias
and Goldwater, on behalf of the Senate Select Committee on
Intelligence (SSCI), introduced a new comprehensive intelli-
gence Charter bill, "The National Intelligence Act of 1980."
Although the bill was not introduced as a joint Administration-
SSCI product, in very large measure it reflects compromises
and agreements reached between the SSCI staff and the-Intelli-
gence Charter Working Group (represented by its chairman).
The purpose of this report is to list what appear to
the Working Group to be significant differences between the
bill and the draft the Working Group would have recommended.
A list of the key issues is:set out in Section A, together
with the Working Group's recommendations. If the President
approves the Working Group recommendations, these points
will be transmitted to the SSCI as Administration positions,
and the Administration will seek appropriate modification of
the bill in the course of the legislative process.
In addition, a small number of points are still the
subject of disagreement within the Executive Branch. These
points are set forth in Section B of this report for resolu-
tion by the President. An issue paper on each of the issues
within the Executive Branch is attached at Tab A.
The discussions between the Working Group Chairman and
the SSCI staff have been fast-moving in recent weeks. While
the Working Group members have been kept fully informed of
the evolution of the agreed provisions found in the SSCI
bill, there has not been an opportunity for review of the
draft by the Special Coordination Committee of the NSC. Nor
has there been time for a thorough review of the draft in
the light of last-minute compromises reached in order to
reduce the number of issues requiring Presidential resolution.
Consequently, even after determination of the Administration
position on the issues presented in this report, a certain
number of changes, largely technical in nature, may have to
be made in the course of the legislative process- It is not
anticipated that these 'changes would require further decisions
by the President or that they would give rise to major
disputes between the SSCI and the' Ad.ministration.
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annk/ On file NSC release instructions
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State Dept. review DOJ Review
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A. L RE1.2AINING DIFFERENCES BETWEEN THE .DNINISTRATION
AND.T]-3E SSCI
Set forth below are a series of points on which the
Working Group feels that.the Administration should take
exception to provisions of the SSCI bill.
1. Prior Reporting to Congress of Special Activities
The bill requires (section 142) that the two congressional
intelligence committees be kept "fully and currently informed"
of all intelligence activities, including "any significant
anticipated intelligence activities." It also provides
(section 125) that each high-risk special activity and each
category of lower-risk special activity covered by a Presidential
finding shall be considered a "significant anticipated
intelligence activity," thus requiring prior notice, except
that for a period of forty-eight hours such prior notice may
be limited to the chairmen and ranking minority members of
the two oversight committees and the majority and minority
leaders of the two Houses of Congress.
The Working Group recommends that the Administration
take a firm position against any prior reporting requirement
for special activities. The Working Group recommends that
any accommodation 'of the congressional desire for prior
notification of certain categories of major or long-term
special activities be accomplished through legislative
history and not through statutory language. The concepts of
timely notification and the obligation to keep the committees
"currently" informed should suffice to ensure that prompt
notice of significant activities (ordinarily before the
event) is given while retaining necessary Presidential
flexibility, to preserve security in exigent circumstances,
especially when human lives are at stake.
2. Prior Reporting of Other Significant Intelligence
Activities
As the bill is formulated, it .would require prior
reporting to the two intelligence committees of significant
anticipated intelligence collection activities, in addition
to special activities. This requirement, while found in
Executive Order 12036, is not at present embodied in statutory
law. The working Group recommends that the Administration
position be opposed to the inclusion of such a provision
in the Charter bill, even were some form of prior reporting
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to, be accepted for special activities.j Foreign intelligence
collection is a vital aspect of the President's exercise of
his responsibility for the conduct of foreign affairs and
protection of the national security. In contrast to special
activities, intelligence collection is more clearly within
the ambit of exclusive Executive Branch authority. Further-
more, a statutory requirement to report sensitive collection
activities in advance'to the oversight committees would
significantly restrict the flexibility now available to the
President with regard to the collection of intelligence. It
is, in our view, unnecessary to appropriate oversight, given
the extensive oversight powers elsewhere provided to the two
intelligence committees. As with special activities, a
requirement to keep the Congress fully and currently informed
would suffice without excessively impairing flexibility-
3. Absence of Intelligence Source and N'ethod Protection
in the Oversight Process
The bill does not include in the congressional oversight
section (section 142) a key'phrase that the Working Group
considers it essential to insert as a condition to the
Executive Branch's obligation to keep the oversight committees
informed. This is that such obligation should be "consistent
with all applicable authority and duties, including those
conferred by the Constitution upon the Executive and Legisla-
tive Branches and by law to protect sources and methods."
The underlined words are not included in the SSCI bill. The
function of this phrase is to provide authority for withholding
from the oversight committees extremely sensitive information,
such as the true identities of agents or information furnished
by foreign liaison services who do not wish it shared with
the Legislative Branch of our government. Without a clear
statutory basis for protecting such information, the ability
of the intelligence agencies to deal with sources and foreign
governments would be impaired. The information in question
is not of the kind required for proper oversight. Moreover,
the phrase at issue is included in section 3-4 of E.O.
12036. Failure to-include it in the Charter bill, therefore,
would be a retreat for the Executive Branch from present
oversight arrangements.
4. Prohibition on Cover Use of Certain Institutions
The Working Group understands that in the President's
meeting with Senator Huddleston it was agreed that restrictions
on the use of academics, clerics and journalists :.;-ould be
replaced with hortatory language requiring regulations to
protect the integrity of professions in general. The SSCI
bill, however, continues (in section 132(b)) to contain
detailed restrictions on the cover use of United States
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religious, media and academic institutions and exchange
piogra=ms; the hortatory language applies pnly to operational
use of members of the various professions`. The Working
Group feels that the general approach requiring regulations
to preserve the integrity of all professions would take care
sufficiently of both cover and operational use, and accordingly
recommends that the Administration support deletion of the
SSCI bill's detailed restrictions on the cover use of certain
institutions-
While cover use should be kept to an absolute minimum,
circumstances are conceivable in which such use would be. the
only plausible cover available in a situation of the highest
urgency and national importance. A blanket prohibition in'
such circumstances would either ]lead to the loss of essential
intelligence or require the government to engage in unlawful
activity- The Working Group recommends that the Administration
seek deletion of section 132(b) of the SSCI bill.
The SSCI bill contains no general provision permitting
the President to waive restrictions on intelligence activities
in time of war, although there is a limited war-time waiver
provision with respect to the prohibition on cover use of
certain institutions. The Working Group recommends that the
Administration support the inclusion of a general war-time
waiver provision to read as follows:
" (a) The ".President may waive any or all of the
restrictions on intelligence activities set forth in
this Act during any period--
(1) in which the United States is engaged in
war declared by Act of Congress; or
(2) covered by a report from the President
to the Congress under the War Powers Resolution, 87
Stat. 555, to the extent necessary to carry out the
activity that is the subject of the report.
(b) When the President utilizes the waiver
authority under this section, the President shall
notify the Permanent Select Committee on Intelligence
of the House of Representatives and the Select Committee
on Intelligence of the Senate in a timely manner and
inform those committees of the facts and circumstances
requiring the waiver."
Although considerably improved over S. 2525, the SSCI bill
still contains a variety of restrictions and requirements,
both procedural and substantive, whose full impact cannot
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be anticipated or fully understood. In time of ,.ar, these
restrictions and procedures may prove to impede necessary
action, 'forcing the President to choose between danger to
the national security and deliberate violation of the law.
The limited waiver proposed by the Working Group would deal
with these exigent circumstances, while at the same time
preventing any potential abuse by requiring notification to
the two oversight cox-mmittees.
6. FOIA Amendment
The SSCI bill provides (section 421(d)) an exemption
from the Freedom of Information Act for certain CIA opera-
tional and technical files-, except in the case of "first
person" requests by United States persons. This provision,
while acceptable to CIA, fails to provide any relief for the
NSA and other Intelligence Community components that also
have confronted serious problems under the FOIA. The Working
Group prefers the formulation proposed by the Director of
Central Intelligence, under'. which the DCI.w,jould be empowered
to designate operational and technical files not only within
the CIA but in any component of the Intelligence Community,
and thereby exempt such files from the FOIA except in the
case of first person requests. Language for this purpose is
set forth at Tab B. The Working Group recommends that the
Administration support modification of the SSCI bill to'
accomplish this broader FOIA relief.
7. Protection of Identities
.The SSCI bill contains a provision establishing criminal
penalties for disclosure of the identity of an undercover
intelligence officer or agent (Title VII). The provision,
however, would apply only to a person who had authorized
access to classified information and would not cover aiders,
abettors, accomplices or conspirators who knowingly assisted
in the commission of the offense. The Working Group
considers this provision inadequate and recom:aends that the
Administration support a more extensive provision. There is
disagreement, however, between CIA and the Department of
Justice as to the scope of the substitute provision the
Administration should support. An issue paper on this point
is included in Tab A. The Working Group proposes that the
Administration advance whichever of the alternate formula-
tions is chosen by the President.
8. Fore 9n Intelligence Surveillance Act
The SSCI bill contains amendments to the Foreign Intelli-
gence Surveillance Act (PISA) for purposes of including
physical searches in its scope. The Working Group feels that
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the, Administration should not support a legislative proposal
dealing with the FISA without at the same time taking account
of significant inadequacies in the FISA that have become
apparent since.its enactment. The changes required to
remedy these problems are:.
a. modification of the targeting standards to
permit targeting of dual nationals who occupy senior
positions in the government or military forces of
foreign governl-ments, while at the same time retaining
United States citizenship. Frequently the activity-of
such persons when they visit the United States on
official business is not such as to bring them under
the quasi-criminal targeting standard now found in the
FISA. -
b. I?iodification of the targeting standards to
permit targeting of former senior foreign government
officials even if they: are not acting in the United
States as members of a-foreign government or faction.
Again, this problem was not anticipated at the time the
FISA was passed, but various situations have arisen in
which it is clear that a former foreign government
official (such as a deposed head of state) who is
present in the United States may have significant
foreign intelligence information. Under present law
such an official can be targeted only if a member of a
foreign faction or government.
c. Clarification of the FISA to maJ:e it clear
that the Attorney General, in authorizing the limited
category of surveillances not subject to court order,
has the same power as the court to authorize non-
consensual entry of premises to effectuate the surveil-
lance.
d. Extension of the emergency surveillance period
from twenty-four to forty--eight hours. Recent experience
indicates that the twenty-four-hour period is inadequate,
leading to the necessity of delaying implementation of
emergency surveillances.
A classified memorandum from the National Security Agency
setting forth reasons for these changes to the FISA is
attached at Tab C.
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B. DIFFERENULs REQUIRING JESULU'EiUN W,.t'I'1i_t[v am .r1;l:LUTIVE
Attached at Tab A are seven issues papers describing
issues that require resolution by the President and as to
which there is not unanimity among the departments and
agencies represented an the Working Group. These issues
are:
1. Should the provisions imposing criminal penalties
for unauthorized disclosure of identities of intelligence
personnel follow the Justice Department or the CIA version.
.2. Should positive foreign intelligence collection
directed- against United States persons by extraordinary
techniques be authorized only if the court finds that the
intelligence sought is "significant" foreign intelligence.
3. Should CIA and NSA employees serving overseas
receive benefits comparable-. to State Department employees.
4. Should NSA overseas employees be provided special
retirement benefits equivalent to the CIA retirement system.
5. Should the Intelligence Oversight Board be given
express authority to review the internal practices, pro-
cedures and guidelines of the intelligence agencies.
6. Should the bill contain a requirement that entity
heads report to the Intelligence Oversight Board intelli-
gence matters specified by the President.
7. Should the Central Intelligence Agency have statutory
authority to obtain data collected by other entities of the
Intelligence Community, including data obtained by technical
collection systems, for purposes of processing and analysis.
In closing, it should be again emphasized that this
report and the agreed portions of the SSCI bill have under-
gone numerous last-minute changes. Consequently, there may
be further issues internal to the Executive Branch or between
the Administration and the SSCI. In addition, there is the
unavoidable risk that compromises reached under some time
pressure will appear unacceptable to the parties upon later
Daniel B. Silver
General Counsel, CIA
Chairman, Intelligence Charter
Working Group
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Issue 1: Should the provisions imposing criminal penalties
for unauthorized disclosure of i.dentities of intelligence
personnel follow the Justice Department or the CIA version.
There is agreement among the Working Group that the
Charter should contain criminal provisions for the unautho-
rized disclosure of the identities of undercover intelligence
personnel. The version contained in the SSCI bill would
cover only disclosures made by present or former employees
of the United States Government or other persons having
authorized access to classified information and would not
apply to persons who are accomplices or co-conspirators with
such government employees'in bringing about the unauthorized
disclosures. The Working Group is of the opinion that the
Charter provisions should go farther. There is, however,
disagreement between the Justice Department and the CIA as
to the nature of the proposal that should be made. The
Justice Department has proposed a bill for this purpose, a
copy of which is attached. The CIA prefers the bill intro-
duced by the fourteen Members of the House Permanent Select
Committee on Intelligence (H.R. 5615), but with the addition
of certain portions of the proposed Justice Department bill.
The CIA version also is attached.
Justice Department Position:
The Department of Justice supports new legislation to
penalize the unauthorized disclosure of information that
identifies covert intelligence agents. The Justice Department
also believes, however, that such legislation must be effective
in order to achieve those purposes. The criminal provision
proposed by CIA for inclusion in the intelligence Charter
legislation will not, in the opinion of the Justice Department,
be effective and raises serious constitutional as well as
enforcement and prosecution difficulties. An alternative
provision has been proposed by Justice and approved personally
by the Attorney General. Justice believes this alternative
minimizes potential difficulties and provides a meaningful
deterrent and prosecutive basis for harmful disclosures.
Accordingly, the Justice Department's alternative should be
the version included in the Charter legislation that is
endorsed by the President.
The Justice Department version provides criminal penalties
in a variety of situations and covers both employees and
non-employees. It would be a crime under that proposal for
any present or former government employee who has ever had
access as such an employee to information concerning identities
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of covert agents to disclose such information to any unautho-
rized person whether or not the disclosure is based on
official sources, pure speculation, or publicly available
information. This provision in combination with the general
federal conspiracy and accomplice statutes would also provide
a basis for prosecution in appropriate cases of private
persons or publishers acting in concert with former employees
who make unauthorized disclosures.
in addition, the Justice Department's bill would provide
a criminal penalty for any person, whether or not a present
or former government employee, who discloses information
identifying covert agents when such disclosure is based on
classified information.
The Justice Department proposal would minimize the
constitutional difficulties inherent in the CIA version
which would, in addition to:persons covered under the Justice
Department proposal, authorize prosecution of any private
citizen who, without any collaboration with a government
employee or any access to classified information, discloses
publicly available information that relates to the identities
of covert agents. The Justice Department provision does not
require, as does the CIA version, that the disclosure be
made with an intent to impair or impede U.S. foreign intelli-
gence activities. Inclusion of this requirement will make
prosecution excessively difficult and is likely to present
serious evidentiary and "graymail" problems, problems that
are minimized in the Justice approach.
CIA Position:
CIA believes that the Administration should support the
identities provision included in the attached CIA draft,
which incorporates the terms of H.R. 5615, the identities
bill co-sponsored by all the Members of the House Permanent
Select Committee on Intelligence (HPSCI), and also incorporates
the principal provision of the attached Justice Department
bill. The difference between the two versions is that the
CIA version would permit prosecution of a person who did not
have authorized access to classified information, but who
discovered the identity of an undercover U.S. intelligence
officer or agent through any of a variety of means, including
leaks or physical surveillance. This category would include
those ti.:ho are doing the greatest damage at present and who
we believe, but could not prove in a court of law, are in
collaboration with renegade former U.S. Government employees.
Constitutional objections to prosecution without proof that
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the disclosure was based on classified information are fully
overcome by a specific intent requirement under which the
government must prove beyond a reasonable doubt that the
perpetrator acted for the purpose of impairing or impeding
U.S. intelligence activities. It is the CIA's view that no
respectable journalist could have any reason to fear prosecution
under such a statute.
The plain fact is that any statute dealing with the
disclosure of identities necessarily raises constitutional
questions, since it purports to regulate a form of speech.
The real issue is whether this kind of speech can be regulated
because its serious threat to important social issues outweighs
its social utility. We think that the answer to this question
was well stated by the Attorney General in his recent lecture
at Columbia Law School:
The existing law provides inadequate protection to the
men and women who serve our nation as intelligence
officers. They need --.and deserve -- better protection
against those who would intentionally disclose their
secret mission and jeopardize their personal safety by
disclosing their identities. Public comment and criticism
of intelligence activities and specific operations is
proper. revealing the identities of particular intelli-
gence personnel and placing them in danger, on the
other hand, serves no legitimate purpose. Our proper
concern for individual liberties must be balanced with
a concern for the safety of those who serve the nation
in difficult times and under dangerous conditions.
If one accepts that this pernicious activity requires
criminal regulation, it is imperative that any new legislation
enacted be capable of application to the known present
perpetrators of these disclosures. Given investigative
constraints which preclude most means of discovering and
proving connections between those who publish lists of
undercover CIA officers and their suspected sources of this
information, the iiPSCI formulation seems to provide the only.
possibility under which such individuals could be prosecuted
based on their own public activities and expressed intentions.
.The Department of Defense supports the CIA position.
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 APPENDIX -- DEPAR MENT OF JUSTICE BILL
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erg2ged or assistin ~n
`or n
en_cted by
of the United S to ?s .
the Senate
O_ t ie United States Of =t:+erice in Co.n=-:Tess asse. bled, That
To prohibit the disclosure Oi` inf OI'na ? Cn dent? nj
.may b e Cit d as the tt ore! jn me 11Se )Ce ceni,? t_-s
-
=nG House of
Protection Act.."
TI) Co:EI- : e s s ^eYeoy the fol
Suc::es { u1 and of _ Fcf-ent1y ccn:4ucted
_c:ding f _nd ir^ s .
fcM`=yn
'..=e'?-,=~encc acti%r!'-,ies ar e essent_al to the nato 1 security
of the United Stat`s.
Successful and efficient foreign intell e
acti vi t'_es _e_ end in large cart upon conc?2_ pent of'
eL:reen cc,iponents oz t? e ...__..ed .. .. a -e
~ s Ua;; er
^.~ 3 y O+, t `hcse ac t_J'tis _ ;C ce r taro o.
cps and sources of in-Lori.;at__-!on.
() The d sC1Csu e of Si:ch ie~at_ri~J`'~S to
C
'_::-.en ta to the sicc':-ss'u and ec =n`.
cc-:drct O. _i._ei n '_^4eUi nce .,? o11f _~ o
a4` i_v? -'_eS O'_~ -ej.
C= FiN:).N, S
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individuals who have a concealed relationship with
f o: eic-n intelligence components of the United States governimen'
::.ay be exposed to physical danger if their identities are
disclosed to unauthorized ?persons.'.
Sec. 3. Title 18,? United States Code, is a:enc`d by
adding the folic-win- new chapter:
Cr. _7Nf1 -;} E' r OR T-`.7G IN FG 1 n - t ~T ! I C~
:. ~1 = 1 N J! J~1_~~S :~ ~J= C,l JS JS S! ~:. _\ i tJ Y , N J_4 ..~t,E
Sectio 2 900. Def_n? t'io:"!s ;s seo in t?~i? s 'ct Cr (a) "Discloses" :ears to co an'cate, grov'ce,
: _rt, trans-it, con'.ey, pub- _S!), or Ot}7ez `ii se
a'iai lrz le to any u'.'a'.1thor i. ed `.:e_'Son.
unaut32GT'izeci 'ea' s :~'? t oLt` c:'ti?Ors tf,
or : er_ssion pug-st ant to the 'provis=ons of a statute
Or E::ecutive G-nder Cciicerning access tto national sec_u_ itly
in: cn, t;,e c i r?ection of the head of any depart:i:ent or
ag- rc ` '~ rya ?_, row ?i::-,n intel lig-. nc- ac'n ?
es, ardor
G a t! a or. any Un= Ld States court, or a .2S0'ut_G^ a_
t.^.e vntd States S= Sate 'or Fouse of =:ea ntati_es w1hich
~~_'? ?_ r.---s ons'blity for t_ e oversig of ' !te?
~c)
tl .. L',"J .`t agen.`, ?t .ieza .S any _ -esent 7,r ':_,:'-er
-ee cr of a : 'r: ~. ?.7. ? 'T ..- "` - 1
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-:,e oer of the rmed ?;,Saes assigned to duty with an IL ntoil i'cence
gency ~?) whose present or former r el atiOnship +'i tf1 the
'_'1: ? 11 ] ence a envy is Protected by he
Cover or alias identity, or, in the case of a source, is
protected by the use of ? a c an:~estine eans of CoT.-:?unicat on
G. et :] to conceal i_ie relat =G'.'_S'li~ and (i i) ir;_O i s
serv=- " outside the finite= States or has :Jithin the last
L .. ? . ,L L -
Un .,ed C L ,a..`s.
five years ser?:ed o' .,side USA_
1
Znte1? i --nce ~Agency or any o eign i12t eZ ?i~: ce Cc; O?:eri~ of
- o -
~e) tier,.- ~SSif= ein_format ones r-ea ?5 any _ ^?fGr :=i.-Q:]
or =- aria gat n2s cen deter_,i'ec by t:;e . II e States
O': v= 'en executive o- de'r, S: a tote, Or
on, to' _ _^u re protect' on' a gai::st '.;;:_u -c-
re of "atJ-oral seCUr _tt
d C SU _ r _ e for? 2
_ .` _5 0 ;1 5 0_ Y-
S ct_,n 1801 Disc-lo-sure of Intelligence Identities.
(a) r!'oeve=' * . n c ' w ngly di c cses =_,= crna :_?Jn that
co ?_'=_, '.~ _ ?_^.t.__ tes another parson as a covert ent, :1_th
a:. sucon. disclosure Is case.. on C_sii ied
i:!`~_"_ =tton, Or atte^:_its to do so,
Cy a = _ :e o_ not more than
c' _1 ty of an o f nse.
50, 000
-en - Cars, r o n.
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 u _
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1
(c) There is Jurisdiction over an offense under
this section co.mri i tted -outside the United States, if the
individual committing t ;e offense is a citizen of the United
lawfully
;e:, ,anent ; esidence.
ct-ion .802.
admitted to the United States for
Disclosure-of Intelligence Identities by
Government. ~ployees .
Whoever, being or having been an e_r1rloyee. of
the. Up ted States govern,:~ent :pith access to inf or_T,ation
revealing the identities of covert agents, kncw;ngly d'sclcses
infoa,!-,.ation.that correctly identifies anotner person as a
covert agent, cr attempts to do so, i s guilty of an offense.
(b) An offense under this section is punishable
by a fine of not more than $25,000 or imp.: isonment for nog;
amore than five years, or both.
(c) There is jurisdiction over an offense under
thi S section corpj itted outs`de the United States if the
Indiv'?dual coTnitting the offense is a citizen of the
United States or an allen lawfully admitted to t?-,e United States
for oe^ :anent .: esidence.
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CIA PROPOSAL
Unauthorized disclosure of information
identifying certain individuals engaged
or assisting in intelligence activities.
(a) Whoever, having or having had authorized access to
classified information that--
"(1) identifies as an officer or employee of an
intelligence agency,'or as a member of the Armed Forces
assigned to duty with an intelligence agency, any
individual (A) who in fact is or has been such an
officer, employee, or member, (B) whose identity as
such an officer, employee, or member is classified
information; or
"(2) identifies as being or having been an agent
of, or informant or source of operational assistance
to, an intelligence agency any individual (A) who in
fact is or has been such an agent, informant, or source,
and (B) whose identity as such an agent, informant, or
source is classified information, intentionally discloses
to any individual not authorized to receive classified
information any information that identifies an individual
described in paragraph (1) or (2) as such an officer,
employee, or'member or as such an agent, informant, or
source, knowing or having reason to know that the
information disclosed so identifies such individual and
that the United States is taking affirmative measures
to conceal such individual's intelligence relationship
to the-United States, shall be fined not more than
$50,000 or imprisoned not more than ten years, or both.
"(b) Whoever with the intent to impair or impede the
foreign intelligence activities of the United States discloses
to any individual not authorized to receive classified
information any information that--
"(1) identifies as an officer or employee of an
intelligence agency, or as a member of the Armed Forces
assigned to duty with an intelligence agency, any
individual (A) who in fact is or has been such an
officer, employee, or member, (B) whose identity as
such an officer, employee, or member is classified
information; or
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"(2) identifies as being or having been an agent
of, or informant or source of operational assistance
to, an intelligence agency any individual (A) who in
fact is or has been such an agent, informant, or source,
and (B) whose identity as such an agent, informant, or
source is classified information,
knowing or having reason to know that the information disclosed
so identifies such individual and that the States is
taking affirmative measures to conceal such
intelligence relationship to the United States, shall be.
fined not more than $5,000 or imprisoned not more than one
year, or both.
(c) Whoever discloses to any individual not authorized
to receive classified information any information that--
(1) identifies as an officer or employee of an
intelligence agency, or as a member of the Armed Forces
assigned to duty with an intelligence agency, any
individual (A) who in fact is or has been such an
officer, employee, or member, (B) whose identity as
such an officer, employee, or member is classified
information; or
(2) identifies as being or having been an agent
tance
i
l
ource of operationa ass s
t
of,
or
or s
informan
to,
an
intelligence agency any individual (A) who in
fact
is
or has been such an agent, informant, or source,
and
(B)
whose identity as such an agent, informant, or
source is classified information,
knowing or having reason to know that the information disclosed
so identifies such individual, is based upon classified
information, and that the United States is taking affirmative
measures to conceal such individual's intelligence relationship
to the United States, shall be fined not more than $5,000 or
imprisoned not more than one year, or both.
(d) It is a defense to a prosecution under section 501
that before the commission of the offense with which the
defendant is charged, the United States had publicly acknowledged
or revealed the intelligence relationship to the United
States of the individual the disclosure of whose intelligence
relationship to the United States is the basis for the
prosecution.
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(e) No person shall.be subject to prosecution under
subsection (b) by virtue of section 2 or 3 of title 18,
United States Code, or shall be subject to prosecution for
conspiracy to commit an offense under such subsection unless
that person has acted with the intent to impair or impede
the foreign intelligence activities of the United States.
(f) In any prosecution under section S01(b), proof of
intentional disclosure of information described in such -
section, or inferences derived from proof of such disclosure,
shall not.alone constitute proof of intent to impair or
impede the foreign intelligence activities of the United-
States.
(g) -It shall not be an offense under section 501 to
transmit information described in such section directly to
the. Select Committee on Intelligence of the Senate or to the
Permanent Select Committee on Intelligence of the House of
Representatives.
(h) There is jurisdiction over an offense under section
501 committed outside the United States if the individual
committing the offense is a citizen of the United States or
an alien lawfully admitted to the United States for permanent
residence (as defined in section 101(a)(20). of the Immigration
and Nationality Act).
(i) Nothing in this title shall be construed as authority
to withhold information from Congress or from a committee of
either House of Congress.
(j) For the purposes of this title:
"(1) The term 'classified information' means
information or material designated and clearly marked
or clearly represented, pursuant to the provisions of a
statute or Executive order (or a regulation or order
issued pursuant to a statute or Executive order), as
requiring a specific degree of protection against
unauthorized disclosure for reasons of national security.
"(2) The term 'authorized', when used with respect
to access to classified information, means having
authority, right, or permission pursuant to the provisions
of a statute, Executive order, directive of the head of
any department or agency engaged in foreign intelligence
or counterintelligence activities, order of a United
States district court, or provisions of any Rule of the
House of Representatives or resolution of the Senate
which assigns responsibility within the respective
House of Congress for the oversight of intelligence
activities.
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" (3) The term 'disclose' means to comru-r~unicate,
provide, impart, transmit,'transfer, convey, publish,
or otherwise make available.
"(4) The term 'intelligence agency' means the
Central Intelligence Agency or any intelligence component
of the Department of Defense.
"(5) The term 'informant' means any individual
who furnishes or has furnished information to an intelligence
agency in the course of a confidential relationship'
protecting the identity of such individual from public
disclosure.
"(6) The terms 'agent', 'informant', and 'source
of operational assistance' do not include individuals
who are citizens of the United States residing within
the United States.
"(7) The terms 'officer' and 'employee' have the
meanings given such terms by sections 2104 and 2105,
respectively, of title 5, United States Code.
"(8) The term-'Armed Forces' means the Army,
Navy, Air Force, Marine Corps, and Coast Guard.
"(9) T3be term 'United States', when used in a
geographic sense, means all areas under the territorial
sovereignty of the United States and the Trust Territory
of the Pacific Islands.".
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Issue 2: Should positive foreign intelligence collection
directed against United St
ates persons by extraordinary
techniques be authorized only if the court finds that the
1ntellzgence sou ht is "signiicant" foreign intelligence.
Section 221(c) of the SSCI bill permits the special
surveillance court to-authorize the use of extraordinary
techniques (foreign electronic surveillance and foreign
physical search) to be directed at a United States person
for the purpose of positive foreign intelligence collection
if the court finds that "the information sought is foreign
intelligence." This provision is acceptable to all of the
departments and agencies except the State Department. The
State Department wishes to raise the standard so as to
require the court to find that the intelligence sought is
significant foreign intelligence.
State Department Position:
The Department of State believes the word "significant"
should be inserted before the words "foreign intelligence".
This would require that, before the court approves the use
of extraordinary techniques outside the United States to
gather. foreign intelligence from a United States person, the
court must find that. the information sought is "significant
foreign intelligence," not merely "foreign intelligence."
State Department recognizes that, under ?213(b)(1), the
President must make a finding that the foreign intelligence
is essential to the national security, so there is already a
substantial degree of protection. However, the suggested
change gives the court increased responsibility to review
the government's application for a warrant, thereby giving
greater protection against the possibility that the term
"foreign intelligence" will be overbroadly interpreted in
the future. It will also establish the same standard for
review by the court in foreign intelligence as in counter-
intelligence and counterterrorism, ?221(d)(1).
Working Group Position:
There is no reason to change this language, which has
been accepted by the SSCI. Positive foreign intelligence
collection against United States persons cannot be approved
by the court unless the Attorney General certifies that an
appropriate finding was made by the President or the President's
designee. Depending on the type of United States person
involved, ?213 requires a finding by the President that the
intelligence is essential to the national security or by
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the President's designee that it is important to the national
security. These present safeguards render superfluous a
requirement that the court find the intelligence to be
"significant." Moreover, the change sought by the State
Department in effect would invite the court to second-guess
the determination made by the President or his designee.
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Issue 3: Should CIA and NSA employees service overseas
receive benefits comparable to State Department employees.
Several sections of the SSCI bill would have the effect
of equalizing benefits for CIA and NSA employees serving
overseas with those of Foreign Service employees. OYIB
wishes to have these provisions deleted.
OMB Position:
The SSCI bill would provide to CIA and NSA employees
the same allowances and benefits provided under legislation
for Foreign Service employees, this legislation having
traditionally provided the most liberal set of allowances
provided to any group of federal employees. In certain
cases enhancements to Foreign Service benefits and allowances
have been enacted over strong Administration opposition.
While in certain ways they are similar, the Foreign
Service, CIA and NSA are sufficiently different in operations
and types of activities to warrant determination of merit
for benefits and allowances on an individual basis. Further,
automatic extension of the liberal Foreign Service benefits
to CIA and NSA employees would simply serve to accentuate
the inequities which exist between these employees and the
vast majority of federal civilian employees overseas, primarily
those involved in_DoD non-intelligence activities, who do
not receive such liberal benefits. The direct costs of this
provision under current Foreign Service benefits and allowances
we estimate at $3 million annually; if extended to all overseas
federal civilian employees U.S. citizens), the additional
costs would be Further
additions to Foreign Service ene fits and allowances would,
of course, increase these amounts. The intelligence Charter
legislation bill is an inappropriate vehicle for this type
of special pleading.
CIA Position: I ?
Intelligence agency employees serving
typically
under conditions more arduous and angerous. It is anomalous
and unfair for there to be a marked discrepancy in benefits
for overseas service. These discrepancies are harmful to
morale of overseas employees.
T e
opposition of OMB to certain of the benefits of the Foreign
Service is no justification for perpetuating inequalities.
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NSA Position:
NSA considers the situation of its employees to be
comparable to that of CIA employees in this regard.
State Department Position:
All U.S. Government civilian personnel required to serve
abroad for a major portion of their careers in successive
tours in different countries sho~adb~~efz~~tleTheoDethe samer
partment
or as similar as possible, pay
of State, therefore, supports CIA and NSA on this issue.
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Issue 4.: Should NSA overseas employees be provided special
retirement benefits equivalent __to the CIA retirement system.
Section 633 of the SSCI bill would establish a special
retirement system for NSA applicable to employees serving in
certain hazardous or specialized positions overseas. The
benefits are equivalent to those of CIA. ONE objects to
this proposal.
OMB Position:
The SSCI bill would give certain NSA employees substan-
tially enhanced retirement benefits, comparable to those now
received by CIA employees with significant overseas duty.
Employees of NSA are now covered by regular civil service
retirement. The rationale for higher benefits for CIA
employees with overseas duty was the need to provide some
added compensation for hazardous duty and to allow early
retirement. While this may-be appropriate for certain CIA
officers, NSA employment overseas consists
almost exclusively of work at large fixed installations or
non-clandestine employee activities. We do not believe it
is more hazardous than other normal government employment.
Absent such showing, more liberal retirement benefits for
NSA employees would be unfair to other federal employees
and would encourage requests from other government agencies
for similar benefits. Although no recent cost calculations
have been made, estimates in the past have suggested that
it costs the government fully one-third more for early
retirement (age 50/20 years service) than for regular
retirement. This added cost would have to be borne from
additional appropriations, since the normal employee/employer
contributions are, actuarily, insufficient to sustain this
higher payout. The Office of Personnel Management, which
opposes the NSA retirement annuity enhancement, is currently
reviewing the appropriateness and effectiveness of all
special retirement provisions.. It would be premature to
add another special.case prior to completion of this study.
NSA Position:
The proposed special retirement provisions are required
to cover those NSA employees whose duties are in support of
activities abroad and hazardous to life or health or so
specialized because of security requirements as to be clearly
distinguishable from normal civil service employment. The
The proposed provisions would not be a
new retirement system but would be an adjunct to and part of
the existing Civil Service Retirement System with benefits
comparable to those provided under the existing CIA retirement
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provisions. Only specially designated field service meeting
the above parameters would be included. Because of the
conditions of service and the designated activities, not all
employees can anticipate serving the period of time required
in order to qualify to retire under the normal civil service
retirement provisions.
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Issue 5: Should the Intelligence O~_ersightBaard be icy ven
procedures
ex ress authority to review the internal practices,
and guidelines of the intellence agencies.
E.O. 12036 provides that the Intelligence Oversight
Board shall "review periodically for accuracy the internal
guidelines of each agency within the Intelligence Co,-unity
concerning the legality or propriety of intelligence activities,"
as well as reviewing periodically the "practices and procedures
of the Inspectors General and General Counsel with responsi-
bilities for agencies within the intelligence Community for
discovery and reporting to the Intelligence Oversight Board
intelligence activities that raise questions of legality or
propriety." The SSCI bill empowers the Board to inquire
into intelligence activities and report to the President on
questions of legality or propriety, but does not contain-
language analogous to that quoted above. The Board would
like insertion of a provision empowering the Board to "review
the internal practices, procedures and guidelines of entities
of the Intelligence Community concerning the oversight,
legality and propriety of intelligence activities."
IOB Position:
The Board believes that its authority to review and
evaluate the system of Executive Branch oversight Bisressential.
The review function permits the small, part-time
increase the effectiveness of Executive Branch intelligence
oversight by ensuring that the agencies'. internal oversight
mechanisms are adequate. No other agency or official is
responsible for monitoring the oversight system and reporting
to the President on it.
The Board believes that existing oversight responsibilities
should not be eliminated at a time when restrictions are being
relaxed to permit greater operational flexibility. In
addition, the Board's-responsibility for monitoring the
Executive Branch-oversight system is especially important
in making the case that Congress should not exercise detailed
day-to-day supervision of the intelligence agencies. Including
this responsibility in the section on the IOB provides some
assurance to the Congress and the public that the Administration
maintains its commitment to internal intelligence oversight.
Statutory recognition of the additional responsibility
will not limit the President's flexibility with regard to
the oversight system. As with all the IOB powers in the
statute, this authority is subject to the President's pre-
scriptions.
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% orking4Group Position
The language on the Intelligence Oversight Board contained
in the SSCI bill, although reorganized, substantively is
identical to that proposed to the SSCI by the Administration
in June 1979. That language in turn arose from careful
Working Group consideration, extensive interagency negotiations
and express consideration by the SSCI. No last-minute
change is warranted, especially since the Board is given
ample investigative authority under the existing language. of
the SSCI bill.
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Issue 6: Should the bill contain a rrcquirc ment that entity
heads reporto the Intelligence Cti_~rsiaht Board intelligence
matters specified by the President.
As currently drafted the SSCI bill (section 141) requires
heads of entities to report specified matters to the Attorney
General, but does not contain the obligation found in E.O.
12036 to report specified matters to the Intelligence Over-
sight Board. The Board wishes inclusion of such an obligation.
YOB Position:
E.O. 12036 requires reports to the IOB by Intelligence
Community general counsels, inspectors-general, and senior
officials. The inclusion of "senior officials" in the
Executive Order's tripartite reporting scheme ensures that
the Board becomes aware of appropriate matters that do not
come to the attention of either the general counsel or the
inspector general, provides:a vehicle for direct communication
between the Board and the agency heads, and serves to remind
the officials who are ultimately responsible for operational
management of, their oversight responsibilities. --For the-
statute to require general counsels and inspectors general
to report to the Board as specified by the President, while
omitting an equivalent responsibility on the part of entity
heads, reflects an imbalance in the Executive Branch oversight
system and could undermine the valuable practice of "senior
officials" reporting to the Board under the Executive Order.
Inclusion of.a parallel obligation on the part of entity:
heads to report "any intelligence matters as specified by the
President" rounds out the Executive Branch oversight system
while retaining Presidential flexibility.
Working Group Position.
As with the previous IOB issue, the Working Group feels
that this last-minute change..is.not justified.and that the
language carefully worked out by the rdministration at'the
time of its submission to the Committee should be left
unchanged.
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Issue 7: Should the Central Intellicence Agency have statutory
authority to obtain data collected by other entities of the
Intelligence C ommunity, including data obtained by tech al
collection systems, for purposes of processing and analysis.
The SSCI bill provides in section 414(b)(4) that CIA
shall:
(4) analyze foreign intelligence collected by any
entity of the intelligence community, and process such
intelligence as necessary to fulfill its responsibilities
under this Act....
Defense Department Position:
DoD considers section 414(b)(4) is a unilateral CIA
effort to settle something that has involved contention in
the past between the Agency and various elements of the
Department of Defense. CIA has assured NSA orally that appli-
cation of section 414 (b) (4) is not intended to go beyond what
is already covered in a recently concluded CIA/NSA Memorandum
of Understanding on SIGINT matters.. Intelligence elements
of the military services, however, have no comparable memo-
randum with the CIA.
Inclusion of section 414(b)(4) would make it possible
for CIA to demand, with explicit statutory authority, direct
access to raw and. unprocessed technical data collected by
DoD organizations. At present, such requests are subject.
to negotiation between CIA and the collecting agency, and
the outcome is dependent upon a variety of circumstances.
.Such data may reveal sensitive aspects of military operations
which are not solely intelligence operations. Expanding such
knowledge beyond the Department of Defense can only increase
the risk that such operations are compromised, and the safety
of those participating, jeopardized. Further, CIA demands
for such data often conflict with the needs and priorities-.-
of the collecting organization'. Such data often requires ;
highly specialized processing, and there may be a legitimate
difference of opinion with respect to which agency is best
able to provide the quality desired.. Circumstances may also
bear upon the ability of an agency to process such data as
quickly and as reliably as required. In some cases, cir-
cumstances may dictate a shared effort. Defense believes
simply that the processing of raw data should be left to
negotiation between CIA and the collecting agency, and not
settled by statutory fiat.
The Defense Department would prefer that section 414(b)(4)
be deleted since it considers the paragraph serves no useful
purpose.
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At a minimum, however, DoD recommisends the paragraph be
amended.to read:
(4) analyze foreign intelligence collected by any
entity of the Intelligence Community, and with the
concurrence of. the. collecting organization, process.
such intelligence as necessary to fulfill its responsi-
bilities.
CIA Position:-
If CIA is to adequately fulfill its responsibility to
"produce, publish, and disseminate intelligence to meet the
needs of the President, the National Security Council, the
Director of National Intell-igence, and other officials and
departments and agencies" (section 414(b)(5)), it must have
the authority to obtain significant foreign intelligence
collected by other entities of the intelligence Community.
Contrary to DoD's position,: CIA does not seek the right to
initially process intelligence collected by other departments
and agencies, nor to displace-such departments and agencies
as the primary, processors of their intelligence..
CIA does believe it should have the-right to analyze
significant foreign intelligence collected by other departments
and agencies, including the right to process. such intelligence
in a timely fashion after the collecting entity has been
given an opportunity to do so. Processing should not really
be an issue if CIA's right to access is recognized, since
the Agency is willing to subordinate its processing, needs to
those of the collecting entity, provided that CIA is allowed
to process and analyze the data in question in a timely
fashion.
The National Security Act of 1947, 50 U.S.C. 403(e)-
allows the Director of Central Intelligence to obtain intelli-
gence collected by other departments and agencies, "to the
extent recommended by the National Security Council and
approved by the President." While there has been no formal
implementation of the 1947 Act's access provision, CIA has
cited it on occasion in order to obtain intelligence collected
by other entities. It was partly in recognition of CIA's
need for access to such intelligence that the proviso was
added in the 1947 Act charging the DCI with responsibility
"for protecting intelligence sources and methods from unauthorized
disclosure." The real issue reflected in the 1947 Act
provisions, and now at issue again, is whether there should
be an independent entity responsible for performing competing
analysis of significant intelligence collected by other
entities. The necessity for competing analysis has been
recognized by Administration and Congressional officials,
and endorsed by the DCI.
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J
The compromise language propcsed by DoD is not acceptable
because~it would give DoD authority to deny requests for
access to intelligence. In the past negotiation with DOD on
this issue has been unsatisfactory and CIA has either been
denied access to DoD-collected intelligence, or has received
such. intelligence only after extended delays. The provision
in the SSCI bill was acceptable to the Committee and should
be retained by the Administration.
It would be an acceptable compromise to require the
concurrence of the Director of National Intelligence, as.
opposed to the collecting organization, for CIA to process
foreign intelligence collected by other entities of the
Intelligence Community.
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FOIA AI~.E?H) ENT
"The Director shall be responsible for the protection
from unauthorized disclosure of intelligence sources and
methods and shall establish for departments and agencies
minimum security standards for the management and handling
of information and material relating to intelligence sources
and methods. In furtherance of the responsibility of the
Director to protect intelligence sources and methods, infor-
mation in files maintained by an intelligence agency or
component of the United States Government shall be exempted
from the provisions of any law which require publication or
disclosure, or search or review in-connection therewith, if
such files have been specifically designated by the Director
of Central Intelligence to-be concerned with: The design,
function, deploymnent, exploitation or utilization of scientific
or technical systems for the collection of foreign intelligence
or counterintelligence information; Special activities and
foreign intelligence or counterintelligence operations;
Investigations conducted to determine the suitability of
potential foreign- intelligence. or,counterintelligence, sources;
Intelligence and.security - liaison- arrangements, or information
exchanges with' foreign' governments or their intelligence or
security services; Provided that requests by American citizens
and permanent resident aliens for information concerning
themselves, made pursuant to Sections 552 and 552a of title
5, shall be processed in accordance with those Sections.
The provisions of this Section shall not be superseded
except by a provision of law which is enacted after the date
of this Amendment and which specifically repeals or modifies
the provisions of this Section."
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