INTELLIGENCE CHARTER LEGISLATION - TITLE I

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86-00101R000100030002-9
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 38
• Document Creation Date: December 12, 2016
• Document Release Date: August 12, 2002
• Sequence Number: 2
• Publication Date: March 23, 1978
• Content Type: MF

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DDA 78-1231/1
23 March 1978
MEMORANDUM FOR: Legislative Counsel
ATTENTION
FROM
SUBJECT
Assistant Legislative Counsel
Assistant for Information, DDA
Intelligence Charter Legislation - Title I
REFERENCE : Multiple addressee memorandum from
Jr., dtd 17 March 1978, Subject: S. 2525 -
Proposed Intelligence Charter Legislation - Title I
Issues Paper (OLC 78-0399/33)
1. We have reviewed the issues paper forwarded as an attachment
to reference and find that we are in general agreement with the posi-
tions taken. We do have a few comments, some on sections of Title I
which have not been covered in the issues paper and a few on items
already discussed in the OLC analysis.
2. In Section 104(12) (p. 12), the term "department or agency" is
defined to include any "wholly owned corporation" of the U.S. Government.
We question whether this definition may be perceived to be in conflict
with the definition of the term "proprietary" which appears in Title IV,
Section 403(b) (p. 179). It may be that our purposes are best served
by having proprietary corporations covered by the Title I definition
but there may be times when such inclusion would be inappropriate. We
defer to OGC on the question.
3. We understand that the definition of "intelligence method" in
Section 1.04(17) (p. 14) is to be modified so as to cover "intelligence
activities" including "special activities." Is it possible that we also
need to expand this definition to include those unique support activi-
ties upon which CIA relies to carry out its foreign intelligence mission?
4. In Section 104(24)(C) (p. 18) reference is made to the "consoli-
dated cryptologic program." Althoug
h not an uncommon term in budgetary
C> 0
and senior management circles, the so-called "CCP" is not widely known
to the rank and file of CIA. Perhaps it should be defined.
STAT
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5. In Section 104(30) (p. 20) we support the addition of a ref-
erence to "foreign power or organization" to the paragraph on U.S. media
organizations. We wondered, however, if we should take this a step fur-
ther and refer as well to "control or direction by private citizens of a
foreign country." This same comment applies to Section 104(31)(D) (p. 21)
6. Section 113(e) (p. 25) requires that the Director and Deputy
Director be compensated from "funds appropriated to the Office of the
Director" while Section 113(f) authorizes a commissioned officer serving
as Director or Deputy Director to receive the difference between his
regular military compensation and compensation due him as Director or
Deputy Director. Is the difference payable to come from Office of the
DNI funds?
7. Section 113(h) (p. 26) line 25, refers to compensation at "rates
provided by subsection (e)," but subsection (e) contains no rates.
8. In Section 114(m)&(n) (p. 32), as in Section 421(j) in Title IV
(p. 191), the terms "separate" and "terminate" are used. We commented
on the confusion that could arise from the use of these two terms in
paragraph 20 of our memorandum of 11 March covering Title IV.
9. Section 114(o) (p. 33) provides for reemployment of terminated
employees. To repeat a point previously made, an employee terminated
for security reasons should not be reemployed in a position which involve
access to classified intelligence information. We should not give the
Chairman of the Civil Service Commission authority to effectively negate
a decision by the DNI to deny an individual access to information about
intelligence sources and methods. (The same point applies to Section
421(j) (4) (p. 192) of Title RT.)
10. In Section 116(a) (p. 35) provision should be made for compen-
sating Assistant Directors of national intelligence who may be commis-
sioned officers for differences between the military and Agency
entitlements.
11. In Section 121(a) (p. 38), OLC proposes the addition of a new
subparagraph (S) on reprogramming. We concur in the subparagraph with
one exception; we believe that the Director's reporting responsibility
should be more limited, not covering "all" reprogrammling. A dollar
threshold should be established so as to obviate a need for reporting
minor reprogramming involving only a few thousands of dollars. (See
OLC Issue No. 38.)
12. On Section 122(a) (p. 40), we would like to emphasize, as we
did in speaking about Section 425(a) on page 196 of Title IV, that it
is cost effective to conduct CIA activities under a single annual
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appropriation. We realize that the authorizing language in Section
122(a) will not preclude a single-year appropriation.
13. In Section 122(b) (p. 40) the DNI's certification authority
is not limited to any particular appropriation, leading to the possible
interpretation that his certification authority extends to funds appro-
priated to any entity of the intelligence community. Is this the
intent?
14. In Section 135(a)(8) (p. 62) the term "htunan rights" appears.
In your Issue No. 70, you assert that "there is no commonly utilized or
acceptable concept of what are 'human rights. "' We suggest that given
the administration's heavy emphasis on this subject in its public pro-
nouncements on foreign policy, it might be preferable to drop this item
from our statement of.issues or, at most, to limit ourselves to a
request for a definition of the term.
15. Section 151(e)(1) (p. 78) calls for a quarterly report to the
Oversight Board by the Inspector General and General Counsel of each
entity of the intelligence community. Elsewhere in the issues paper,
efforts have been made to limit reporting to semi-annual or annual
reports or to reports rendered "in a timely manner." We suggest that
semi-annual reports to the Oversight Board would be sufficient.
16. Section 152(c) (p. 88), in its last sentence, requires the
maintenance of an index of the record of legal authorities and published
regulations and instructions in the Office of the Federal Register.
This would appear to be a pro forma requirement which would serve little
purpose. Such an index would have to be classified (this is reflected
in the provision for Director-approved security standards for storage)
and would probably, therefore, only be available to the oversight com-
mittees and the Oversight Board. These organizations, when in need of
such information, would turn not to the Office of the Federal Register
but to CIA and the other entities of the intelligence community. The
maintenance of such an index would be both burdensome and useless. This
position is at odds with the one proposed in paragraph 27 of your
"Technical Suggestions" for Title I.
17. Section 152(d) (p. 88) should be recast to incorporate the
language which appears in the Federal Records Act, specifically Title
44 U.S.C. 3101, where Federal agencies are required to make and preserve
records containing "adequate and proper documentation." The following
language is recommended:
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(d) The Director shall make and preserve records con-
taining adequate and proper documentation regarding
the national intelligence activities of the United
States consistent with guidelines established by
the Administrator of General Services; and the head
of each entity of the intelligence community shall
make and preserve records containing adequate and
proper documentation, consistent with GSA guidelines,
regarding the intelligence activities of such entity.
18. Section 1S2(f) (p. 89) would have every entity of the intelli-
gence community provide the oversight committees with "all rules, regu-
lations, procedures, and directives issued to implement the provisions
of this Act." The flood of paper which would be generated by this
requirement boggles the mind. Clearly, every regulation and directive
issued by this agency would. qualify under the phrasing of Section 152(f).
We strongly recommend that this requirement be deleted from the charter
legislation. Similarly, we would propose the deletion of the requirement
that every waiver of an Agency regulation or directive be reported. Such
a requirement could burden the committees with a great deal of unnecessary
detail.
19. The rest of the comments made in the Title I issues paper have
our concurrence. Both that paper and the one on Title II were very well
done, by the way, and those who participated in their preparation should
be congratulated for the excellence of their staff work on these complex
issues.
ILLEGIB
STAT
cc: AD/M-NFAC
OGC
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ODP
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OP
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OTR
SSA/DDA
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 DDA 78-1231
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OLC 78-0399/33
17 March 1978
MEMORANDUM FOR: puty Director for Administration
Deputy Director for Operations
Deputy Director for Science and Technology
Director, National Foreign Assessment Center
General Counsel
Comptroller
Inspector General
STAffROM:
SUBJECT:
REFERENCE :
Assistant Legislative Counsel
S. 2525 - Proposed Intelligence Charter Legislation
Title I Issues Paper
NFAC-729-78, 23 February 1978, from AD/M-NFAC,
Subject: Intelligence Charter Legislation
1. Attached are three papers identifying issues and positions there-
on for Title I of the intelligence charter legislation: (a) the
first, most important and longest paper identifies all the significant
issues in Title I; (b) the second paper contains less significant
issues, many of which are technical and non-substantive matters; and
(c) the final, one-page paper lists a few general issues pertaining
to the entire bill which came to mind in the context of reviewing Title I.
2. In compiling this material, we have endeavored to identify all
significant issues in Title I taking into account our own careful review
of the bill and material received already from your components. In
addition, where appropriate, we have included explanatory remarks and
specific amendatory language. In this way, even though it has taken
a good deal of time to prepare the material, it is hoped that your
coordination responsibility can be satisfied more efficiently. In
reviewing this material, therefore, please comment only as to significant
issues that in your opinion should be but are not included or on those
issues with which you have a serious disagreement.
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3. Admiral Turner has directed that Agency comments on the
legislation be submitted to the D/DCI/RM no later than 28 March 1978.
We are compiling a coordinated Title IV paper based on comments
received already from your components. In addition, you have been
provided an issues paper on Title II. In addition to this Title I
material, there are a relatively small number of issues in Titles V
(FBI) and VI (NSA), on which you will be receiving short papers on
Monday, 20 March. It is therefore necessary that you provide your
coordination, as indicated above, on this Title I material no later
than COB Thursday, 23 March 1978. Thank you.
STAT
cc:
nrrT
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S. 2525 - TITLE I ISSUES
PURPOSES
1. ?103(4)--The "Purposes" section should deal separately with
responsibility to provide intelligence to Executive and Legislative
Branches.
2. ?103(4)--The qualitative phrases "accurate, relevant and
timely" should be deleted.
3. ?104(1)--The term "Acting Attorney General" should be
included in definition of "Attorney General (consistent with definition
in 5311).
4. ?104(3)--The ~refix "tele-" should be deleted from
"telecommunications' so as to bring audio countermeasures
within the definition.
5. ?104(5)--The definition of "counterintelligence" should not be
limited to "foreign government" but should include "foreign persons,
organizations and powers. "
6. ?104(9)--The definition of "cover" should be amended to include
any other person associated with the" CIA.
7. ?104(10)--The last word of the definition of "departmental
intelligence" should be "value" not "purpose, " in order to Fuard against
the possibility of departments deciding intelligence is not 'national"
merely because there is no "policy making purpose. "
8. A definition for "employee" should be added between ?104(12)
and (13) (pickup definition from 5 U.S.C. 5921(3)).
9. ?104(16)--It is recommended that subparagraphs (G) [Federal
Bureau of Investigation], (I) [Treasury], (J) [Drug Enforcement Agency]
and (K) [Department of Energy] be taken and combined in one subparagraph
and made subject "to the extent determined by the President,. as may
be engaged in intelligence activities, " as done in (M), to avoid problems
of delineating what components are "intelligence" and which are not
(i.e., to avoid bringing an entire service, such as the Secret Service or
DEA, into the IC).
10. ?104(17)--The definition of "intelligence method" is inadequate;
the definition should include "any means by which foreign intelligence, counter-
intelligence or counterterrorism intelligence is collected, retained,
processed, analyzed or disseminated, whether by human, technological
or other means'; the "vulnerability" or "likelihood of compromise'
are not appropriate or workable criteria for defining or delimiting a
"method. "
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11. ?104(18)--The term "intelligence-related activity" must be
addressed either by definition [here] or in substantive provisions
elsewhere in the Act so as to ensure that the Director has the authority
to review such activities (this is the important issue); it would seem
clearer to spell it out in the definitions section.
12. ?104(19)--The term "intelligence source" is inadequately
defined; the true sense of the term is that it "means any person.,
organization, document, or technical or other means which provides
foreign intelligence, counterintelligence or counterterrorism intel-
ligence"; pegging the definition to concepts such as "vulnerability"
or "likelihood of compromise" are not appropriate or workable
criteria for delimiting a "source. "
13. ?104(22)--The qualifier "primarily" should be deleted from
the definition of "national intelligence" so as to avoid insofar as possible
disputes concerning the '"primary" or multiple purpose for which the
intelligence is produced.
14_. ?104(30)--The definition of "United States media organization"
is too broad. What is the scope of "public dissemination"? Is the
phrase "any organization producing and distributing films or ... tapes"
intended to cover just news media, or all film or tape companies?
The latter interpretation would be unacceptable.
--The appropriate limitation should be that a "United States media
organization" should not include an organization "controlled or directed
by a foreign power or organization" rather than "a government of a
foreign country" as the definition now reads.
15. ?104(3l)--There are serious problems with the definition of the
term "United States Person":
--re "permanent resident aliens, " the definition should be couched
in terms of a presumption that such alien is not a U. S. person if
the alien is residing outside the U. S. ,- until information-is obtained which
establishes that the alien has resided outside the U. S. continuously
for less than one year or until information is obtained which indicates
an intent on the part of such alien to return to the U. S. as a permanent
resident alien;
--re "unincorporated association, " the definition should exclude
associations not directed or controlled by a foreign power or organiza-
tion (i. e., insert "and which is not directed or controlled by a foreign
power or organization" between "residence" and "except"; and
--re "'corporation, " the limitation should be to a corporation
""not controlled or directed by a foreign power or organization"
vice "a government of a foreign country' as presently worded.
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GENERAL AUTHORITIES
16. 5111(a)--It is recommended that the term "national intel-
ligence activities" be changed to "intelligence activities" and end
the relevant provision at that point. The present wording authorizes
only national intelligence activities; "intelligence activity" includes
"foreign inte ligence activities, " which the entities of the IC must be
authorized to conduct.
17. ?111(b)--The same change as recommended for ?111(a),
supra, (i.e., read ... intelligence activities. ), should be made
here so as to avoid unnecessarily delimiting authority to conduct foreign
intelligence; this change assumes the definition of IC is changed as
recommended in item 9, supra.
DESIGNATION OF "NATIONAL" ACTIVITIES
18. ?112--This section should be amended so as to clarify the
relationship between the "Intelligence Community" as defined in
?104(16) and the "National Intelligence Budget" as. defined in ?104(24).
One method woud be to add a new paragraph (G) to ?104(24) to the
effect that the "national intelligence budget" will also include those
programs picked up in paragraph 104(16)(MVI); ?112 then should be
rewritten to include only a requirement that the determinations in
?104(16)(M) and ?I04(24)(G) would be made annually based on
recommendations by the DNI.
DNI AND DEPUTY DNI
19. ?113(a)--This subsection establishes the "Office of the Director
of National Intelligence" (O/DNI); the relationship of this new Office
to the CIA, or indeed, to the Executive Office of the President, needs
to be clarified. It should be specified that the O/DNI is an
"independent establishment" _(i, e., clearly separate from the CIA)..... ...
Also, it should be specified that the O/DNI shall assist the Director
in carrying out.. the Director's funC.tiogs.under. this _.Act-
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20. ?113(a)--The following should be added at the end of this
subsection: "and shall perform such tasks as the Director may
from time to time assign or delegate. " This clarifies the Director's
authority to delegate his duties. (This comment depends in part on
the disposition of the recommended changes to ?117, infra )
21. ?113(a)--It should be specified that the Deputy Director,
like the Director, is in the Office of the Director; add the following
to the second sentence of this subsection after the parentheses: "in
the Office of the Director.
DUTIES AND AUTHORITIES OF THE DNI
22. ?114(b)--It is recommended that the following responsibility
of the DNI be added to paragraph (3): "[and] shall coordinate counter-
.terrorism activities conducted by entities of the Intelligence Community
with other departments and agencies. "
23. ?114(d)--The Director's responsibility to head the CIA
should be stated in clearer terms, i. e. , "the Director shall head the"
CIA instead of "shall act as the Director" of the CIA. Moreover,
this responsibility shoIITE-e made subject to the provisions of ?412(a)
in addition to ?117 (as provided now in the language of ?114(d)). (See
separate comments on ??117 and 421, infra.) Further, the words
"within the Office of the Director" should e inserted following "of
such staff" to clarify the location of these persons. Finally, a comma
should be inserted after the word "Agency" in order to make clear that
the ?117 [and ?412(a) limitation applies only to heading the CIA.
24. ?114(j)--It is not appropriate that the Director's responsi-
bilities to coordinate liaison relationships and to report liaison agree-
ments (if so required), as specified in paragraphs (2) and (3), be subject
to "consultation with the Secretary of State` as provided in ?114(j).
The maximum extent to which the authority the Secretary of State should
extend would be as to consulting on the formulation of policies (paragraph
(1)).
25. ?114(j)(3)--The very fact of mentioning in the statute that
liaison relationships--particularly proposed relationships --be reported
to the Congress will have a serious negative impact on the willingness
and ability of foreign services to enter into relationships with- the U.S.
Government. Paragraph (3) should be deleted; the general congressional
reporting requirement, in ?152(a), should be kept in mind. The maximum
extent to which reporting on liaison agreements should extend should
be to those intelligence agreements that might fall within the purview
of the Case Act (1 U.S.C. 112b); such a provision should specify that
the reporting will be in lieu of reporting to other committees of Congress
under the Case Act.
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26. ?114(1)--The phrase ", subject to the provisions of this Act,"
should be deleted. Inclusion of this phrase is confusing in that it impliedly
limits the Director's present sources and methods authority (which is
not subject to any statutory caveats), and arguably weakens that authority
in terms of any reporting under this Act, particularly vis-a-vis the
Congress and even possibly as to other agencies and departments.
27. ?114(l)--Take the last sentence of this subsection and make
a new subsection which would read: "With due regard to the Director's
responsibility to protect intelligence sources and methods, the
Director shall take such steps as are_.necessary,. consistent with.
applicable laws and executive orders, to ensure proper classification
and declassification of intelligence information and material. " This
change makes clear that the extent of the Director's responsibilities to
protect sources and methods and to ensure appropriate classification
and declassification are compatible. Under the language proposed here,
for example, unclassified information would be protected if the informa-
tion would disclose _a sourc.e or. a. method.
28. ?114( )--A new subsection should be added here, similar
to that in ?421(g) protecting the names, organization, etc. , of the CIA
from disclosure, but applicable to the Office of the DNI.
29. ?114(m)--The Director's authority to appoint, promote and
separate personnel, for purposes of Title I, should run only to the
Office of the DNI; this subsection should be amended to.reflect this
limitation. Insofar as the Director may head the CIA, or carry out
any functions pertaining to the CIA, the Director will pick up
corresponding authority for CIA personnel in Title IV (5421(j)(1)).
30. ?114(m)--The following language should be inserted in this
subsection after "United States Code, "including, but not limited to
provisions... " This additional language makes clear that the Office of
the Director is i1either _sub_jeQt
.to_provis ons_of the comp etitiye service.
nor to provisions elsewhere in Title V relating to other categories of
persons. It might also be adviseable to add language making explicit
that employees are in the excepted service.
31. ?114(n): "Employees of contractors" should be specifically
included in this subsection, relating to the Director's authority to
terminate employment or security clearances.
32. .5..114(m) and (n): The separation/ termination authorities
contained in these two subsections appears to be sufficient- -terminations
for reasons of "national security" is absolute according to. subsection (n);
the separation authority for other purposes is exerciseable without
regard to any provisions of Title 5, United States Code, according to
subsection (n). Separation pursuant to subsection (n) arguably would
be subject only to such due process as provided by law or regulation;
essentially, DNI regulations providing for non-national security
terminations.
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33. ?114(o)--The second sentence of this subsection allows
employees in the Office of the DNI to be placed in the competitive
service if they are terminated, but only if they have served in the
Office for one year. Since this provision grants a benefit to employees
who are not in the competitive service, it should not be addressed to
all those serving in the Office of the Director, but rather to all those in
the excepted service who were employed in the Office of the DNI; this
amen ment would, for example, include employees of the CIA terminated
after serving less than one year in the Office of the DNI.
ASSISTANT DIRECTORS
34. ?116(a)--It is not clear that the Assistant Directors, like
the Director and the Deputy (as suggested, supra) are in the Office of
the DNI. The following rphrase should be inserted in the first. sentence
of this subsection after ' Intelligence": "in the Office of the Director. "
35. ?116(a)--Here, as in ?113(a), there should be an explicit
statement--to be added at the end of the first sentence of this subsection--
that the Assistant Directors "[and] shall perform such functions as the
Director may from time to time assign or delegate." This strengthens
recognition of the Director's power to assign or delegate his functions.
ADVISORY COMMITTEES
36. ?116(c)--This subsection, in conjunction with ?703, revokes
the Agency's exemption from provisions of the Federal Advisory Committee
Act and would make exemptions contingent on a specific waiver which
in turn must be reported to the oversight committees. The reasons
behind the present statutory exemption from the Advisory Committee
Act, based on the need for secrecy and incompatibility with public
participation, have not changed since enactment of that Act, and
there should continue to be an exemption from the Act for the CIA
[and the Office of the Director]. Therefore, this subsection and ?703
should be amended to reflect that the Agency's exemption from the
Advisory Committee Act remains, and that the Office of the Director
also is exempted. The amendment would necessitate also that provision
be included for compensation for members of any advisory committees,
since such authority is contained in the Advisory Committee Act htself
and an exempted agency must therefore have independent authority to..
compensate.
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SPLITTING DNI FROM IIEA.D OF AGENCY
37. ?117--This section relates to "transfer" of the Director's Agency
responsibilities by the President to the Deputy or an Assistant Director.
Since the President already has authority to transfer responsibilities
under the Reorganization Act, and since an agency head--here the
head of the CIA--has implicit or explicit (as recommended be clarified,
supra) authority to delegate functions (as opposed to severing one's self
completely from the responsibility, for. such functions), this section is con-
fusing and unnecessary. Its inclusion raises questions as to the extent
of the Director's power to delegate authority to manage the CIA.
If the provision is included, then its application as discussed in the
preceding paragraph should be clarified. The section should be amended
to read as follows (in order to clarify that the authority goes only to
a complete severing of the roles of DNI and head of the CIA, as opposed
to delegation by the DNI to a subordinate of such functions):
"Sec. 117. (a) The President is authorized to transfer
responsibility of the Director to act as head of the Central
Intelligence Agency to any person serving as the Deputy
Director or as an Assistant Director of National Intelligence if--
(1) such person is not a commissioned officer of
the Armed Forces whether in active or retired status;
(2) the President notifies the Congress in writing of
the proposed transfer and specifically identifies the officer
or employee to whom such responsibility is to be
transferred; ... " [continue as in S. 2525].
BUDGET AND APPROPRIATIONS
38. ?121(a)--This subsection does not contain authority for the
Director to review and approve the reprogramming of intelligence funds.
Rather than leave this as an issue to be considered- -and..possibly.rejected
in the context of each authorization,- the-authority as contained in
section 1-602(f) of E.O. 12036, modified to reflect the budget terminology
in S. 2525, should be added as .a.new paragraph (5)-to this subsection
as follows:. . O?L
"(5) The Director shall have full and exclusive authority
to review and approve reprogramming of national intelligence
budget funds within entities of the intelligence community, in
accordance with guidelines established by the Office of Management
and Budget, and the head of such entity of the intelligence
community shall consult with the Director before any proposed
reprogramming. The Director shall inform the [oversight
and appropriations] committees of/all uch reprogramming on
a timely basis. "
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This matter might also be addressed by strengthening subsection
121(c) so as to provide the Director authority to ensure that budget
decisions by entities of the Intelligence Community not adversely
affect the approved intelligence budget.
39. ?122(a)--The requirement in this subsection that intelligence
activities cannot be carried out unless funds for such activities have
been authorized by the Congress allows for the possibility of multi-
year authorizations up to three years. The question-has been raised
whether this flexibility is desirable in budgetary procedures.
41. ?122(a)--This subsection reads that no funds maybe appropriated
to carry out any intelligence activity by any entity of the Community
unless funds "for such activity" have been previously authorized. It is
more appropriate, and more in keeping with the confidential nature
of intelligence funds, to have the authorization relate to "such entity
of the intelligence community" rather than to "such activityy" (i. e. , the
authorization runs to the "entity" rather than the "activity ').
41. ?122(b)--This section contains the Director's unvouchered
funds authority. Use of this authority, is made contingent on three
factors: (1) a determination by the Director that such action is
necessary in the interest of the national security; (2) funds may be
so expended only for activities authorized by law [this should be clarified
to read "lawful activities" to remove any confusion that activities must
be "authorized" by "law"); and (3) reporting on a quarterly basis to the
oversight committees. Title IV (?425(b)) provides similar authority
for the Director of the Agency. Title IV in addition provides that
funds made available to the Agency may be expended 'notwithstanding
the provisions of any other law, IT and provides for a Contingency
Reserve. The question for purposes of Title I is whether the Director
as DNI needs any additional expenditure authority?
The basic question, perhaps, is whether the Director as DNI (as
opposed to the situation in which the DNI may continue as Had of the
Agency) needs such unvouchered funds authority in the first instance.
In other words, is it necessary that any entity other than the CI@
be empowered to expend funds in such a manner?
Finally, if this authority remains, reporting to the Congress on
this specific issue should be on an annual rather than a quarterly. basis.
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AUDITS AND REVIEWS
- 42. ?123(a)--It is inappropriate to authorize the Comptroller
General of the U. S. to conduct, in addition to "financial" audits and
review, "program management audits and reviews" as provided
in this subsection. For reasons of security, and since there now exists
a thorough congressional oversight procedure to review intelligence
programs, this authority for the Comptroller General should be
deleted from ? 123(a).
43. ? 123(a)--Requests for audits of intelligence funds should be
only upon the request of the oversight committees. This would ensure
appropriate security and would establish more clearly the proper over-
sight role of these committees.- Therefore, the word "only" should
be inserted in the last sentence of this subparagraph before ", upon. IT
44. ?123(d)--Based on the amendment suggested in the preceding
paragraph that would require all audit requests to come through the
oversight committees, this subsection should be deleted. Such amend-
ment also would make clear that the Comptroller General does not have
power to audit intelligence activities independent of the congressional
oversight committees.
45. ?123(e)--The criteria for invoking the Director's authority to
exempt certain activities from audit should be more specifically focused
than this subsection presently provides. The standard should relate to
protecting intelligence sources and methods. The first sentence of this
subsection should be amended to read: "... (1) determines such exemption
to be necessary to protect intelligence sources and methods, .. "
4.6. ? 123.(e)--Reporting to the Congress of the Director's exercise
of his audit exemption authority should be only, and specifically, to
the two intelligence oversight committees, rather than to "appropriate
committees" as this subsection provides;-it should be amended accordingly.
Also on the matter of reporting, the "reasons for granting it" [the
exemptions should not be required to be reported;- this language should
be deleted from- clause "(2)" in this subsection. Reporting to the Congress
on "reasons" for the exercise of a specified authority would cause
problems as to the degree of detail that would have to be reported.
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PROCEDURES RELATING TO SPECIAL ACTIVITIES
AND CERTAIN COLLECTION PER TIO NS
47. ? 131--This section prescribes procedures and requirements
applicable to reviewing, approving and reporting on special activities
in support of national foreign policy objectives and the following two
categories of clandestine collection activities: (a) clandestine collection
activities of exceptional importance or sensitivity that require review
by the National Security Council prior to initiation, and (b) those
collection activities which, because of their extreme importance or
sensitivity, require not only review by the National Security Council
but the personal approval of the President prior to initiation. The
President is charged with establishing standards and procedures to
provide the criteria by which clandestine collection activities shall
be placed in either of the two categories. Subsection 131(c) lists five
criteria or considerations that the National Security Council must
"carefully and systematically" consider in reviewing any special
activities or clandestine collection activity. Thes.e factors include,
among others, the justification for the proposed activity, the likelihood
that the objective of such activity would be achieved by other means,
and the legal implications of the proposed activity. The President
in turn would be required to make a written finding addressing four
elements prior to the initiation of any special activity or any clandestine
collection activity which, according to the criteria established by the
President, requires personal approval. Furthermore, the National
Security Council must review annually each and every on-going special
activity and each and every on-going clandestine collection activity
which requires either NSC review or Presidential approval prior to
initiation; no such activity could be continued after such annual review
.unless reapproved acccording to the same criteria applicable to the
initial activity. The Director of National Intelligence would be required
to report the facts and circumstances of each activity subject to the
requirements of this section to the two intelligence oversight committees
of the Congress prior to initiation of the activity, except that in extraordinary
circumstances and upon a specific finding by the President, the reporting
may he 48 -hours after the. initiation of the activity, but only if the President
certifies that prior notification would have been harmful to the United
States. The intelligence oversight committees, moreover, would be
informed of any "significant change"' in any activity subject to the re-
quirements of this section and of any "significant change in the factors"
that would be taken into account in deciding on and approving any such
activity. The Director would also be required to submit a written
semi-annual report to intelligence oversight committees on all activities
subject to the requirements of his section. Section 131 also specifies
that only the CIA or the armed forces of the United States during
any period of war may conduct special activities; provision is made,
however, for other departments and agencies to support the CIA in
conducting approved special activities if the President makes a finding
that such support is necessary.
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The detailed description of the provisions in section 131 is included
here to suggest the problems with legislating precise and detailed
requirements regarding sensitive intelligence activities. Overall,
the procedures and requirements in section 13-1 are unacceptable
because they overstep the appropriate bounds of congressional over-
sight of activities, carried out under the authority of the President,
which are extremely sensitive in nature. Moreover, the detailed
procedures would tend to be, if not completely unworkable in practice,
extremely time consuming and difficult to implement. Specific re-
commendations are included below.
. .48.. ?131--The scope of this-section should be limited to special- -
activities in support of national foreign policy objectives. A statute
that would require, as the section presently does, that the Executive
in -e fect define- or--categorize clandestine collection-activities in terms
of - degrees of sensitivity -or:-importance- would simply be unrealistic - -
and entirely arbitrary. In effect, by their very nature all clandestine
collection activities are important and are sensitive to one degree
or another. It would -be. artificial to require that according to -a specific -
listing of factors--certain activities which are deemed more sensitive
or very much. more sensitive- than others be subject to different review,
approval and reporting requirements. If the intent of the legislation
is to guard against characterizing activities as other than. "special -
activities" in order to avoid- the special finding and reporting require-
ments, when-in fact such an activity might be a special activity, then
the legislation.presu~poses an inappropriate characterization of the
Executive Branch. 'Special activity" is a -defined term and the
legislation certainly will contain provisions -regarding findings for special
activities and for reporting such activities to the oversight committees;
it is impossible to define in a public document such as -a statute,, other
than by euphemism, what "special activities" really are. It would not
seem inappropriate to require in this section that the President establish
procedures and requirements for determining what foreign intelligence
activities constitute "special- activities" and for providing these to the
intelligence--oversight committees. - A procedure that would require
l) establishingcr-iteria-. (2)'making the -criteria available to the oversight -
cpxnXn ttees,,.,~3).-re-qu.ir ng_that._the.N ationalseeu_rity-council. and the
President review and approve each special -activity, and (4) reporting
such activities to the oversight committees, would afford clearly adequate
oversight of special activities and safeguards against possible abuse.
Establishing additional specific andclearly defined subcategories, as
it were, of other clandestine activities would seem merely to confuse
an area that in the first place does not lend itself to precise definition.
49 y 131.(b)(2)--The requirement in this paragraph that standards or
--
procedures (and changes thereto) established to implement the requirements
of this section, be submitted to the oversight committees before their
effective date, is a procedure in the nature of prior approval of Executive
Branch requirements and procedures, and therefore oversteps the bounds
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of acceptable congressional oversight. This paragraph should require
that the standards or procedures established by the Executive to imple-
ment the requirements of this section shall be submitted to the two
intelligence oversight committees either in a timely manner after their
promulgation or after a particular number of days after they have become
effective (e. g. 60 days). This procedure is in accord with the appropriate
oversight function of congressional committees, in that it requires
the Executive to provide the Congress with the standards and procedures
that implement a congressional mandate, and affords the oversight
committees full opportunity to object and, through the normal process
of Executive-Legislative give and take, full opportunity to seek changes.
50. ?131(c)--This subsection requires that the National Security
Council or the President, in reviewing any activity subject to the
requirements of this section, shall consider in a "careful and systematic"
manner five specific factors. Mandating by legislation the manner in
which certain functions are to be performed--e. g., carefully and
systematically--is simply inappropriate and, in point of fact, questions
as to whether or not such a charge has been met would be unverifiable.
If it is necessary that such factors as those enumerated in this subsection
be included in the legislation, then at a minimum consideration by the
National Security Council or the President should be predicated upon
a submission by the Director of National Intelligence (or the- Director
of the Central Intelligence Agency .if different from the DNI), since
the CIA is the only Federal department or agency that in peace time
can conduct special activities. (Special provision could be made for
a submission from the Secretary of Defense if a special activity is
to be conducted during time of war by the armed forces.)
d1. ?131(d)--This subsection requires a written Presidential finding
before any special activity may be initiated and specifies four tests which,
in the opinion of the President, must be satisfied before the special
activity may be approved. In the first place, requiring a. written record,
particularly one containing detailed information concerning the special
activity, in a Presidential document, would give rise to risks that are
incompatible with the very nature- of special-activiti:es:- Special activities,
by their very definition, are sensitive U. S. Government activities conducted
so as to avoid identification with the Government. Written findings
detailing the President's decision-making process as to each special
activity necessarily means that there will be documentary evidence--
evidence therefore susceptible to dis closure-- directly establishing that
the activity was approved and sanctioned by the highest levels of the U. S.
Government. If the Congress insists on requiring a written finding,
then the degree of detailed information that must be included in that
written finding should not be legislated; it would be acceptable, also,
though not desirable, that the President take into account certain
enumerated factors in making his finding (the Hughes-Ryan Amendment
does this). As to the four specified considerations listed in this subsection,
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the first, that the activity be "essential to the national defense or .. .
foreign policy" is unnecessarily restrictive.- This consideration should
require that the activity is "necessary to the national security of the
United States. " Also, the fourth consideration, that "the circum-
stances require the use of extraordinary means, " is simply redundant
and therefore unnecessary.
52. ? 131(e)--Consistent with the discussion regarding section 131
generally, supra, this subsection regarding findings and approval of
sensitive destine collection activities should be deleted.
53. ?1.31(f)--Again,. consistent with the recommendations regarding
?131 generally, supra, this subsection regarding annual review of activities
subject to the requirements of this section by the National Security
Council, should be limited to special activities.
54.. ?131(g)--Rather than prior notification to the oversight committees
by the Director regarding special activities, as provided in this subsection,
--such . notification should.be. made. _''','ina..timely.manner. " :Requiring by.
statute prior notification to the Congress of activities conducted pursuant
to valid Presidential authority, even, though provision is made for sub-
sequent notification in extraordinary circumstances, goes well beyond
existing statutory provisions regarding such notification and infringes
on the prerogatives of the Executive. Despite-the fact -th.at.this
subsection does contain words to the effect that it does not constitute
any requirement for the prior approval. of the.Congress, the subsection
is in the nature of a procedure that. anticipates prior congressional approval.
This subsection, like those immediately preceding, should be amended so
as to include within its purview only special activities and not clandestine
collection activities, to be consistent with the recommendations noted
in the comments on section 131 generally, supra. -
55. ?131(h)--This subsection would require notification to the. Congress
in the same manner as required for the initiation of any activity subject
to the -requirements of.this -section n- any.. case in which there is a
"significant change" .in the activity. Without further specification, a
.determination,as to-whether -there has -been a, "significant" change in
-an activity;- is elusive and ambiguous-... It would: perhaps be more
appropriate to require that the two oversight committees be notifhed
in any case in which there is a significant change in a special activity
which, at -the determination of. .the_President,_.changes- the nature..of. the.......
special activity. This subsection should also be amended so-as to include
only special activities and not clandestine collection activities, consistent
with the recommendations concerning the scope of this section generally,
as discussed supra.
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56. ?131(i)--This subsection would require reporting to the Congress
in any case in which there was "significant change" in the factors that
would have to be considered in making the initial determination regarding
an activity subject to National Security Council and Presidential review
and approval as specified in subsection 131(c).. As noted in the
comments to that section, supra, it would be difficult enough to determine
the manner in which the listed considerations would be taken into account
in making an initial determination; to require further that the activity
be monitored to determine when a "significant change" in any one of the
factors has occurred, is completely unrealistic. In the first place the
enumerated considerations themselves are amorphous and in large
part subjective determinations to begin with; evaluating the degree of
change in any one of the factors and requiring constant monitoring of the
factors would not only be unnecessarily burdensome but unworkable.
This subsection should be deleted.
57. ?131(j)--Overall, this subsection, which limits authority to
conduct special activities to the CIA or to the armed forces in time of
war, is acceptable. The further provision that other agencies and
departments may support he conduct of a special activity, however,
is made contingent on a determination by the President that such
support is necessary. Support for special activities generally
are in the nature of working-level considerations, and simply do not
rise to the level of activities necessitating Presidential review.
The determination as to whether support by other agencies and
departments is necessary to the conduct of a special activity should
be made by the Director of National Intelligence or by the Director of
the Central Intelligence Agency if different from DNI; the subsection
should be so amended. This subsection further requires "prompt"
notification to the oversight committees of any such finding. Again,
there seems to be no good reason why such a finding is so important
that the notification to the oversight committees ought to be other than
"in a timely manner, " and the subsection should be so amended.
58. ?131(k)--This subsection, which requires the National Security
Council to maintain records of all written Presidential findings under
this subsection, necessarily presupposes- that there shall be written
Presidential findings. As recommended in the comments to subsection
131(d), supra, there is serious question as to whether it would be
appropriate to require written findings in the case of special activites.
It would seem more appropriate, therefore, to amend the subsection to
require that the National Security Council maintain records of NSC
and Presidential determinations regarding all activities considered
subject to the requirements of this section.
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59. ?131(1)--This subsection, requiring the Director of National
Intelligence to. report semi-annually to the oversight committees on
.all activities subject to the requirements of this. section, is completely.
unnecessary. Even if all the recommendations concerning other subsections
of section 131, as detailed supra, were adopted, the oversight committees
still would be notified in a timely manner. of all activities and of all changes
in any special activity which in effect changed the nature of that activity,
and of any determination by the Director as to support by other depart-
ments and agencies for any special activity. Furthermore, the National
Security Council would be required to review annually all ongoing special
activities. The only apparent additional reporting requirement that would
appear necessary or reasonable would be that the Director should report
annually--as opposed to a written semi-annual report--to the oversight
committees regarding the annual National ,Security Council review of
all ongoing special activities and on those specifically approved for
continuation. This subsection should be amended to reflect this
consideration.
RESTRICTIONS ON USE OF CERTAIN INDIVIDUALS
60. 513 2(a)- -Paragraph (2) should be modified so as to make clear
that only programs funded by the Government which are designed to
promote educational or cultural affairs "through international exchanges"
are included within the scope of programs, the participation in which
would preclude the paid use for intelligence purposes of an individual.
Furthemore, subparagraph (2)(B), which would prohibit payment to
individuals subject to this subsection for intelligence information
acquired while the individual was participating in the specified program
and while the individual was traveling or temporarily residing abroad,
should be deleted. There appears to be no valid reason why the
Government should not be able to obtain intelligence information acquired
by individuals participating-in certain programs, so long as any payment
is made or other valuable consideration given to the individual after he
.or she is -no longer participating in the program and traveling. or tem-
porarilY- --- residiftg abroad. Any restriction on use of U. S. persons
participating i:n these programs should be limited to'that period of time
during which they are actually ?participating in,thc..pr.ogranz.and chile
they are abroad.
61. ?132(a)--Subparagraph (3)(B) prohibits the paid use of any
individual other than an openly acknowledged officer, employee or
.contractor of an entity of the Intelligence Community, who "regularly
contributes" material to "United States media organizations. " Even
though this paragraph was changed to reflect the fact that certain
employees of the Intelligence Community may themselves contribute
to "United States media organizations, " the paragraph still extends
too broadly and could be construed to prohibit the Government from
paying, for intelligence purposes, employees, officers, contractors,
or employees of contractors if they are not "openly acknowledged"
(i. e. , if they are under cover). This subparagraph should be deleted;
subparagraphs (A), (C) and (D) already include all individuals who
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would have any substantial relationship with United States media
organizations. There seems to be no valid reason for including within
this class of individuals- -who, after all, would not be available for
paid intelligence use--persons who do nothing more than contribute to
periodicals or other media.
62. 513 2(a)(4)-- Regarding the prohibition in this paragraph on
distribution within the United States of media material, the term
"support" should be changed to "authorize, "'since the former term
could be construed so broadly, for example, that merely bringing
a copy of a magazine into the United States without publicly acknow-
ledging U. S. Government support would be prohibited.
63. ?132(x)(6)--This paragraph prohibits the use of any U. S.
religious organization or any U. S. media organization for cover purposes
or related activities. The basic issue raised is why the Government
should be prohibited from using United States religious or media
organizations merely for the purpose of establishing, furnishing or
maintaining cover for its officers, employees or agents. Use of such
organizations for cover purposes for U. S. Government intelligence
employees or agents is not and should not be construed as "tainting"
these organizations since the purpose is to provide cover for the
Government rather than use of the organizations for intelligence
purposes. It is recommended, therefore, that this paragraph be amended
so as to prohibit use of U. S. religious organizations or media organizations
for the purposes of establishing, furnishing or maintaining cover unless
the consent of appropriate officials of those organizations is obtained.
64. ?132(c)--This subsection requires that no United States
person may provide operational assistance in the conduct of any clandestine
intelligence activity unless such person is first informed of the nature
of the assistance and of any reasonably anticipated risks. The subsection
further requires that the person "voluntarily consent" to providing such
assistance. Given the fact that this subsection applies to all elements
of the Intelligence Community and concerns all United States persons
not associated with the Intelligence. C ammunity, the restriction as to
obtaining the voluntary consent of such person may be unduly restrictive.
As written it raises questions concerning whether or not certain persons
who agree to provide operational assistance on the basis of pressure or
other form of restraint may be determined not to have provided such
assistance in a purely voluntary manner. It is therefore recommended
that this last requirement be deleted from this subsection.
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65. ?132(d)--This subsection should be amended to require, in lieu
of providing the intelligence oversight committees with regulations to
carry out the provisions of this section 60 days before taking effect,
that the reporting be made either "in a timely manner" or within a certain
number of days after such regulations or amendments become effective.
Such amendmen-would avoid problems relating to inappropriate
congressional involvement in the internal workings of the Executive
Branch, as discussed supra.
66. ?132(e)--The scope of this subsection allowing for voluntary
-contacts and voluntary exchanges of information between the Intelligence
Community and persons referred to in subsection (a) is too narrow.
As regards relationships between the Intelligence Community and other
persons; the "authorization's should not be limited to the category of
persons referred to in subsection (a) of this section; at a'minimum
it should extend to persons referred to in both subsections (a) and
M. Since the language of this subsection, however, states that "nothing"
in the entire section shall be construed to prohibit voluntary contacts
or exchanges of information with entities of the Intelligence Community,
then the clearest method of avoiding placing a limitation on such a
reverse authority, " would be to simply drop the language `f referred
to in subsection (a)" and thereby state simply that nothing in this
section -shall-prohibit the specified contacts with entities of the_
Intelligence Community. In addition, this subsection should specifically
include, as non-prohibited activities; "for] other overt, non-operational
relationships" (this would include, for example, Agency translators
who are also members of the clergy). Finally, this subsection should
allow that payment of necessary expenses to persons referred to in
subsections (a) and (b) are not prohibited by this section. This. subsection
should be amended so as to ..reflect these recommendations.
67. ?132(f)--For reasons as discussed supra as to subsection 132(e),
this subsection should be amended to remove the limitation that it extends
only to persons referred to in subsections (a) or (b) of this .section: _
Therefore, the following should be deleted from this subsection: "described
in-subsection {a) or (b).
RESTRICTIONS ON COMBATANTS
68. ?133--This section concerns restrictions on the use of "combatants"
in foreign countries. The section includes a requirement that the intelligence
oversight and the foreign relations committees of both Houses of Congress
be notified in advance of the assignment of a combatant in any foreign country
by any entity tie Intelligence Community other than during a period of
declared war. The subsection provides that, upon a written notification
by the President to the effect that extraordinary circumstances prohibited
prior notification, the notification may come after the activity is initiated.
However, for reasons discussed supra as to section 131 reporting requirements,
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this statutory requirement for prior notification to the Congress of
activities conducted under legitimate Presidential authority is not
acceptable. The reporting requirement in this section, therefore,
should be amended so as to require that the four named committees
shall be notified "in a timely manner" of any proposed assignment
of combatants as designated by this section.
To clarify the scope of permissible assignment of combatants,
the following language should be added to subsection (c) in the first
sentence after "as a combatant except": "according to subsection (a)
or (b) or... "
The definition of "combatant" in subsection (d) continues to be
problematic. Since the appropriate limitation on assignment of com-
batants should be contingent on the intent or purpose behind such assign-
ment, it is recommended that the last sentence of this subsection be
amended to read as follows: "Such term does not include military
or technical advisors or other persons assigned to the foreign country
for purposes other than participation in hostilities. "
69. ?134--This section relates to prohibitions on assassination of
foreign officials. So as to avoid potential problems that might arise
as to the killing of a foreign official under circumstances such that the
assailant did not know the victim to be a foreign official within the
definition of this section, it is recommended that the following
language be inserted in subsections (c) and (d) immediately before
the phrase "while such official is": "knowing such person to be a
foreign official... " This amendment, for example, would remove as
a situation constituting an "assassination of a foreign official, "a
barroom brawl which a U. S. officer or employee killed another person
who, unbeknownst to the U. S. person, was a "foreign official. "
There appear to be other problems related. to the scope of this
section. For example, in subsection (e), exception. is made for a
killing during any period of war or in a situation covered by the war
powers resolution; this exception should also include the situation covered
specifically by section 133, supra, concerning non-military combatants
in foreign countries. There may also be a problem in this context relating
to non-combatants who kill foreign officials in the course of their duties.
Whether or not this situation would present a problem, however, would
seem to depend on the applicability of the particular elements of the
offense enumerated in subparagraphs (c) and (d) supra. (and as recommended
be amended as noted supra); i. e., that the assailan Kt new the victim to have
been a foreign official, and that the foreign official was killed because
of the official's position or political views. The applicability of other
defenses, such as self defense would also be relevant for these purposes.
The further limitation in paragraph (e)(2) that the exemption for
war time or other combat situations be applicable only "against
an official of" the country in which the combatants have been
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 introduced or with Fwh' he t d
since them' iQay Fry we el sbee {in t e confexrof6 ~ u 0an ex rAao3r~ nary,
situation, an official of another country supporting or allied with
the particular country at issue in which case it would be no less appro-.
priate to allow the killing of such official from another country as
to permit the killing of an official from the country at issue. The
definition of "foreign official" in paragraph (f)(2) should be amended
so as to exclude either directly or implicitly, international terrorist
activities organizations.
Finally, care must be taken regarding this section to ensure that
the killing of a foreign official in the extraordinary situation involving,
for example, the protection of the U.S. President or other U. S. official
would not constitute a Federal offense under this section; it is important
to consider this particular question in the context of the scope. of the
elements of the offense enumerated in subsections (c) and (d), as discussed
supra.
70. ?135--This section enumerates eight specific categories of activities
which may not be conducted as "special activities. " It is recommended
that the language "or is likely to result in--" in the preamble to subsection (a)
be deleted, as imposing an unrealistic and largely subjective condition on
conducting certain activities which, although not specifically prohibited,
may at some point or in some manner result in action that is specifically
prohibited. Several of the terms used in this section present problems
in terms of their definition and, therefore, their scope. For example:
it is unclear what would constitute "mass destruction of property";
there is no commonly acceptable definition of a "democratic government";
and there is no commonly utilized or acceptable concept of what are
"human rights.
Consistent with discussions supra concerning prior reporting to the
Congress of regulations to implement particular sections of this legisla-
tion, subsection (b) should be amended so as to require that the regulations
formulated and implemented by the Director in furtherance of this section
shall be transmitted to the two intelligence oversight committees either
"in a timely manner" or within a set period of time after implementation
(e.g., 60 days).
71. ?136--The scope of this section as to Presidential waiver of
otherwise applicable restrictions or prohibitions on certain activities
should extend to cover all the activities enumerated in subsection 135(a)
with the possible exception of item (7), "the torture of individuals. "
It would seem inappropriate in this bill, relating to intelligence activities,
to address issues concerning restrictions on activities the President
may authorize in time of war or national emergency. The reporting
requirements contained in this section include provision for prior
notification to the "appropriate committees of Congress, " in a manner
similar to other provisions of this title discussed in this paper. Based
on recommendations and the reasons therefor outlined elsewhere in this
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paper, it is recommended that these reporting requirements relate to
reporting to specifically named committees "on a timely basis" rather
than prior to initiation of the activity.
72. ?137--The reach of this section, concerning restricting the
authority of any entity of the Intelligence Community to do indirectly
through a foreign government or organization that which the entity
is prohibited from conducting directly, is unclear. The prohibition
should extend to those activities which are prohibited by this act or
any other applicable U. S. law. The language of subsection (a), therefore,
should be amended to read, after the phrase "engage in any activity, "as
follows: "which is prohibited by this act or any other applicable U. S. -law.
Consistent with recommendations and discussions in this paper regarding
prior notification to the oversight committees, the term ' prior"
before "notification to..." in this subsection should be deleted.
73. ?138-=The first-sentence of. subsection (a) of this section, con-
cerning the applicability. of all laws, orders and regulations on conflicts
of interest to officers and employees of the Intelligence Community, is
simply unnecessary and should be deleted. This-whole area of conflicts
of interest regarding Federal employees currently is in a state of flux,
with both Legislative and Executive Branch initiatives currently under
study. In order to make section 138 consistent with the probable scope
of these initiatives,. subse-ction :(a) should be amended to reflect that
the concern is not so much with granting authority to exempt employees
and officers from conflicts of interest requirements, but rather to allow
waiver of reporting and public availability of conflicts of interest reports
or information, so as to protect, for example, information concerning
employees under cover. Furthermore, since the Civil Service Commission
almost certainly would play a key role in any general conflicts of interest
legislation or regulations, it would -seem not inappropriate to add the
Civil Service Commission by name at the end of the second sentence
of subsection (a) after the "Attorney General, " as an entity with which
the Director should consult and receive policy guidance from in the
formulation of regulations to implement laws and orders on conflicts
of interest.
The scope of the waiver authority for the Director of National
Intelligence or the head of any Intelligence Community entity could
be limited as discussed supra by inserting the following language in
the third sentence of subsection (a) after the phrase "deems such action
necessry": "in order to maintain the cover of any such officer or
employee as provided by the provisions of this Act" (specific cover
authority is found in sections 421(a)(9) and 621(a)(12)). With the waiver
authority so limited, there would seem to be no need for requiring,
as in the third sentence of subsection (a), that the waiver authority.
may be exercised only with the "written approval of the Attorney
General, " and it is therefore recommended that this language be
deleted. The final requirement in this sentence
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of subsection (a) relates to notification to the intelligence oversight
committees before any waiver under this subsection is to be made;
such a requirement for prior notification is not only inappropriate
but would seem not to be at all necessary if the waiver authority
were limited as recommended supra. It is therefore recommended
that this reporting provision be amended so as to require only that
the Director of National Intelligence shall report periodically to the
two intelligence oversight committees on use of this waiver authority.
74. ?138(b)--The final clause of this subsection relates to informa-
tion concerning conflicts of interest filed with the General Counsels
of entities of the Intelligence Community not being subject to the
Freedom of Information Act or other laws requiring disclosure. The
need for such a provision is not clear, since the waiver authority in
subsection (a) would be utilized for the sole purpose of avoiding public
disclosure or other requirements that would result in disclosure of
cover information. Inclusion of the provision raises the question
as to whether all other information would be subject to the Freedom
of Information Act and other disclosure requirements.
75. ?139--A provision should be added to this section that would
exempt from the need for obtaining special approval to contract without
disclosing the sponsorship of the Intelligence Community, those trans-
actions carried out pursuant to the terms of the Economy Act. In
other words, Economy Act transactions should not require ;special
approval pursuant to the procedures under section 139 in order to
disguise the sponsorship of the Central Intelligence Agency or other
entities of the Intelligence Community.
76. ?141--This section provides an elaborate mechanism whereby
the President is required to establish standards and procedures to
categorize counterintelligence and counterterrorism activities as to
degrees of sensitivity which would then be either reviewed by the National
Security Council prior to implementation or reviewed by the National.
Security Council and approved by written finding by the President as
to the more sensitive of these activities. The section, in terms similar
to the provisions contained in section 131 supra, further provides for
prior review by the intelligence oversight committees of standards and
procedures established under this section, and of each counter-
intelligence or counterterrorism activity subject to the requirements
of this section. The section, moreover, requires that "careful and
systematic consideration" be' given to Executive Branch review
and consideration of each activity subject to the requirements of this
section; that significant changes in any activity or in the facts considered
in reviewing activities be reported to the intelligence oversight committees;
and that the Attorney General shall submit a semi-annual report to the
intelligence oversight committees on all on-going counterintelligence
and counterterrorism activities subject to the requirements of this section.
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As discussed supra regarding section 131, it is recommended against
requiring by statute that the Executive be required to differentiate as
between the sensitivity or importance of particular categories of
activities in order to determine which review and reporting require-
ments would be applicable. It is therefore recommended, as regards
this section,. that the requirements go no further than to establish that
the National Security Council shall review any proposed counterintel-
ligence or counterterrorism activity which, pursuant to standards and
procedures established by the President, is of sufficient sensitivity or
importance to require such review. The statute should not require addi-
tional Presidential review of such of these activities that are "most"
sensitive or important. As to the reporting requirements under this
section, reporting to the intelligence oversight committees should be
"in a timely manner, " both as to reporting on the standards and pro-
cedures (or, in the alternative, within 60 clays after such standards
or procedures have become effective) and as to reporting on the
activities themselves. In addition, reporting on changes in activities
should be required only in those instances in which there has been a
change in the character or nature of the activity, and the requirement
for reporting on significant changes in the "factors" to be considered
in reviewing the activity should be deleted. The requirement for a semi-
annual report on all on-going counterintelligence or counterterrorism
activities should be amended so as to provide that the Attorney General
shall report annually, based on consultation with the Director of National
Intelligence as to activities conducted abroad, to the two intelligence
oversight committees. -
77. ?151(f)--This section concerns the responsibilities of the
Attorney General to report to the Intelligence Oversight Board, the
President, the Director of National. Intelligence, the heads of the
appropriate entities of the Intelligence Community, the inspectors
general and genera]. counsels of entities of the Intelligence Community,
and the intelligence oversight committees of the Congress. In order
to avoid conflict with the role of the Attorney General as the Government's
chief law enforcement -officer, and so as not-to infringe on the scope of
the Attorney General's prosecutorial discretion, the preamble to this
subsection should be amended to read as .follows: "(f) with due regard
to the investigative and prosecutorial responsibilities of the Attorney
General, the Attorney General shall--"
78. ? 151(h)--It is not clear, as provided by this subsection, how
heads of entities of the-Intelligence Community and the inspectors
general and general counsels of those entities could (or should)
all have "primary" responsibility for "insuring the legality and propriety
of the activities of" each entity. Since the oversight responsibilities
of the heads of each--entity and of the general counsels and inspector
generals of each entity are specifically enumerated in other sub-
sections in this section, subsection (h) would seem redundant and
therefore unnecessary.
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79. ?151(i)--The requirements in subparagraph (1)(B) relating to
reporting by the heads of entities of the Intelligence Community to the
intelligence oversight committees-of the Congress .should be: amended
to provide a more workable and realistic procedure. This subparagraph,
therefore, should be amended--so as to read: "(B) report, on a semi
annual basis, to the permament select committee.. and the select
committee... a summary of matters reported to the Attorney General
and the Oversight Board pursuant to clause (A) of this paragraph;
and .. '.'._.
515-1(i)--Paragraph (i-){2?) concerns responsibilities- of the
Attorney General to report to the President, the Oversight Board,
the Director of National Intelligence, the heads of any entity of the
Intelligence Community-
so concerned, and the intelligence oversight
committees on matters described in paragraph (1)(A).of this subsection.
In. consideration of the prerogatives of the Attorney General regarding
the scope of the Attorney General's investigative and prosecutorial
authority, it is recommended that the-.language contained in subparagraph
(B) of this paragraph.--"with due regard to the investigative and prosecutorial
responsibilities of the Attorney General"--be moved to modify the entire
paragraph. So amended, the preamble to paragraph (2) of subsection (i)
would read: "(2) With due regard to the investigative and prosecutorial
responsibilities of the Attorney General, the Attorney General shall--"
81. ? 152 (j.)--Paragraph (1) of this subsection, regarding officers
or employees reporting on possible violations of laws, orders, rules,
etc., appears to be somewhat overdrawn. Employees and officers
would be required to report "any evidence of any possible violation
of Federal law by any officer or employee of any entity o the
Intelligence Community" to "the inspector general, general counsel,
or head of such entity` (emphasis added). ..It would seem more appropriate
to couch this subsection in terms of "nothing in this section shall be
construed to prohibit any employee or officer of any entity of the
It
Intelligen.c.e _Commu nity.frrom reporting- .any-possible -violation
...
In the alternative, there must be some de minin us:standard":applicable
required-: to-report. A..requirem- ent that officers or--e ni-ployees report _.
on any possible violation of Federal law would seem appropriate. As
to possible violations of Executive Orders, Presidential directives
,
Presidential-memoranda, or any -rule, :-regulation or policy of any entity
of the Intelligence Community, requirement should properly be limited
to reporting only-on possible serious violations. This would remove
as.. a statutory burden on officers or employees of the Intelligence Community -
the requirement -that they report on even the most insignificant possible
violation of any directive, rule, regulation, policy, etc. It is recommended
that this paragraph be so amended.
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It seems inappropriate to include as among matters on which officers
or employees would be required to report, possible violations of the
"policy" of any entity of the Intelligence Community. Generally
speaking, an agency's "policy" is nowhere set down in precise
directive statements; policies do not lend themselves to easy deter-
mination as to whether or not in every instance an agency or indeed
any officer or employee thereof is in accord with the overall policy.
A requirement that each officer or employee of any entity of the
Intelligence Community report whenever he or she suspects a "policy"
is being or may be violated, would seem entirely unworkable and
inappropriate; moreover, an agency's "policy" necessarily does and
should to a certain extent change over time. It is therefore recommended
that the term "policy" be deleted from this paragraph as among the
enumerated items on which employees or officers would be required
to report violations.
82. ?151(j)--Subparagraph (3)(B) in essence requires that the
Attorney General ensure that no adverse action is taken against
whistle blowers on account of their whistle-blowing activity. Despite
its appropriate intent, this provision seems to be drawn a bit too broadly.
Take, for example, the hypothetical case involving an officer or
employee of an entity of the Intelligence Community participating
in a particularly sensitive intelligence activity, who uncovers
"evidence" that he or she believes indicates that the activity is a
possible violation of a law, a directive, an order, a memorandum
or a regulation, and so reports pursuant to this subsection. The
language of subparagraph (j)(3)(B) could be construed to prohibit the
head of the agency or department conducting such sensitive intelligence
activity from taking any personnel action regarding that individual
if the action could ben any way be considered "adverse personnel action, "
even to the extent of not allowing the head of the entity to take that
individual off of the particular project. Such a situation could be
problematic in that the efficiency and indeed the chances for success
of the intelligence activity could be damaged by having to retain an
employee who, on the basis of whatever evidence he or she deems
appropriate, has determined that the activity may possibly be unlawful
or improper, despite the fact that the activity in fact was neither
unlawful nor improper.
At a minimum, the provisions of this subparagraph should extend
only to ensuring that officers or employees are not subject to adverse
personnel action solely on account of their good faith reporting. It
is therefore recommended that the relevant provision of this subparagraph
be amended to read as follows: "shall be subject, solely on account
of the reporting of such information or evidence... "
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83. ?151(k)--The essence of this subsection is to require the head
of each entity of the Intelligence Community to transmit an annual report
to the intelligence oversight committees identifying and describing any
intelligence activities conducted. during the preceding year which, in the
view of the head of the entity, constituted a violation of any constitutional
right, of any U. S. law, or which the head of the entity believes constituted
a violation of any Executive Order, Presidential directive, or Presidential
memorandum. Assuming that the preceding subsections in section 151
contain requirements and procedures for reporting on violations and
improprieties, including responsibilities for heads of entities of the
Intelligence Community, then this subsection is redundant and therefore
should be deleted.
CONGRESSIONAL OVERSIGHT
84. ?-152(a)---This subsection establishes the general parameters
within which congressional oversight of the Government's intelligence
activities and organization shall be conducted. In order that this
important provision be in- accord fully with. applicable constitutional
and statutory limitations, it is recommended that the prefatory
language be amended to read as follows: (a) Under such procedures
as the President may establish and consistent with applicable authorities
and duties, including those conferred by The Constitution upon the
Executive and Legislative Branches and by law to protect -intelligence
sources and methods, the Director of National Intelligence and the
head of each entity of the Intelligence Community, with respect to
the in activities of that entity, shall--" This language is
consistent with that contained in section 3-4 of Executive Order 12036,
with technical changes designed to bring it into conformity with the
language of this bill.
85. ? 152 (b )- Rather than require, as provided in this subs-ection,
yet another written annual report to the intelligence oversight-committees--
in this case a review of all intelligence activities of each entity of the
Intelligence Community--it is recommended. that this subsection be
amended so as to-require that the-head of each entity "shall- report
at least annually to" the intelligence 'oversight committee s. Such a
report,. in the nature ofan. annual overview, would seem to be, the,
appropriate subject for an oral report rather than what would likely
turn out to be an extremely lengthy and probably extremely sensitive
written report.
86. ?152(e)--This subsection should be amended to read: "The
Permanent Select . Committee of .the House-.of Representatives and the
Select Committee an'-Intelligence'of the-- Senate shall b-e` furnished copies
of all records schedules which the entities of the Intelligence Community
are required by law to furnish to the Archivist of the United States,
including any modifications, amendments, or supplements thereto, and
any requests for authority to dispose of records regarding national
intelligence activities or the activities of such entities, at such time
as these schedules and modifications, amendments, or supplements
thereto, are provided to the Archivist. "
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 87. ~P~K@ -~Pl~i ~~~@ d~i9 o Y fi ~ ~d 9Q QQ3Q@4 z~re that
reports by the intelligence oversight committees to their respective Houses
shall be consistent with and with due regard to authorities and duties,
including those by law, to protect intelligence sources and methods.
88. 5153(b)--This subsection requires that no information or material
provided to the intelligence oversight committees that is either classified
or submitted by the Executive Branch under a request that it be kept
confidential, shall be made public other than pursuant to the provisions
of the resolutions establishing the intelligence oversight committees.
In order to make certain that all intelligence sources and methods
are so protected, it is recommended that the following language be
inserted immediately following the phrase "request that such informa-
tion or material be kept confidential": "or intelligence sources and
methods... "
89. ?153(c)--Paragraphs (1) and (2) of this subsection establish that
the intelligence oversight committees shall adopt regulations governing
the availability to other committees and members of information pro-
vided to the oversight committees by the Executive Branch. It is
recommended that both paragraphs--paragraph (1) relating to the
House committee and paragraph (2) relating to the Senate committee--
be amended to require that the regulations shall be in accord with
security arrangements approved by the Director of National Intelligence;
the paragraphs would read in relevant part: "The committee shall,
under such regulations as that committee shall prescribe, and in
accord with security arrangements approved by the Director of National
Intelligence, make any information... available... " It is further
recommended that there be an additional paragraph in this. subsection.
to the effect that the. requirements and procedures established in
paragraphs (1) and (2) shall, with respect to the oversight committees,
supersede and be in lieu of the rules of the respective House concerning
the furnishing of information described in this section to other members
and committees. Such an amendment, for example, would, for purposes
of access to Executive Branch information provided the House oversight
committee, replace the provisions of House Rule XI, which relates
to accessibility of committee records and attendance at committee
meetings and hearings.
PUBLIC REPORT
90. 5154--The appropriateness of requiring by statute, as in this
section, that the Director of National Intelligence shall provide an annual
.
unclassified report to the public on. intelligence activities is .not. at all
certain. In the first place, it would seem that, if intelligence informa-
tion is to be appropriately protected from disclosure, there would be
little substantive or relevant information that could be included in such.
an unclassified report. It is therefore recommended that this section
be deleted. Even without the report that would be required pursuant to
this section, there is more than a sufficient number of reports that
will have to be prepared under this title. If the requirement in this
section for an annual report remains, then the limitations on information
that may be included in the report should be amended to include intelligence
sources and methods specifically; the final portion of this section, therefore,
would read: "of the names of individuals... , or intelligence sources or 11
method, kppro edf F-or Relnease
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S. 2525, TITLE I - TEGF IICAL SUGGESTIONS
1. Section 104(6), (7), (14)--no need to have separate sub-paragraphs
for."analysis ";rather, combine "collection, retention, processing, and
dissemination" and "analysis."
2. Section 104(10), (22), (29)--these terms should include "analysis."
3. Section 104(27)--define term "special activity" vice "special
activity in support of national foreign policy objectives" and include
underlined provision in the definition itsel f, since throughout the Act,
only the term "special activity" is used.
--substitute "retention" for "correlation"
--insert "foreign" before "intelligence" in penultimate line of definition
4. Section 111(a)--Th.is subsection provides the basic authority for
entities of the Intelligence Community to conduct national intelligence
activities "under the direction of the" NSC. Amending this language to
read, "subject to the direction of the National Security Council" would
avoid creating uncertainty regarding the organizational status of the CIA
and the other entities of the Community that could arise from interpre-
tation of the term "under the control of" the NSC. (See also discussion
of sections 113 [O/DNI] and 411 [CIA].)
5. Section 111(c)--add "retaining," after "collecting" and insert
"analyzing" instead of "'evaluating" to make this consistent with other
provisions in the title.
6. Section 113(b)--Insert "additional" between "six" and "years"
at the end. of the third sentence, in order to clarify.
7. Section 113(g)--The last sentence is not clear as to whether an
Assistant DNI would also act as Acting DDNI whenever the DDNI is serving
as Acting DNI. This could be clarified by adding at the end of the
sentence the following: "or while the Deputy Director is serving as
Acting Director."
8. Section 113(h)--The reference to subsection (e) in the penultimate
sentence should be to subchapter II of chapter 53 of title 5, U.S. Code
(as specified in section 702 of this Act).
9. Section 114(e)(3)--Delete everything after the first "United
States." The specific reference that follows, to "collection...
utilizing human sources," is unnecessary since the Director is already
granted coordination authority for all clandestine collection outside
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10. Section 114(f)--The Director should have responsibility for
producing all national intelligence. Insert "all" directly before
"national intelligence. " T he clause "including... analyses" should be
deleted since its inclusion impliedly grants the Director authority over
only those specified categories of production.
11. Section 114(f)(l)--Delete the terms "accurate, relevant, and
timely" as not appropriate to mandate by legislation.
12. Section. 114(f)(2)--The modifiers "any" before "diverse points,"
"fully" after "presented," "carefully" after "considered" and "clearly"
before "expressed" should be deleted. Use of such qualitative. terminology
only confuses the issues, tends to create issues where none exist and
could lead to needless disputes over whether the precise terms of the
statute have been met.
13. Section 114(g)(1)(2) and (3)--For the sake of clarity, (1) and
(2) should be combined. Moreover, the addition of "establish procedures
to..." at the end of the introductory clause in (g) would tighten the
language further. Finally, (3) should be amended to read: "(2) insure
access ...national intelligence collected or produced by the intelligence
community that is relevant to that entity is authorized...responsibilities."
14. Section 114(h)--Add "analyzed" after "collected" and add
"retained" after "produced"' in order to conform to other similar
provisions.
15. Section 114(k)--Insert "the Director determines" between "which"
and "can" to clarify that the Director makes such determination.
16. Section 114(q)--The authority granted the DNI in this subsection
to review support activities should be clarified as follows: "In order to
carry out the Director's duties under this title, the Director is authorized
[vice "shall" or "may"] to review all the intelligence and intelligence-
related activities of the Government and all activities in support of
intelligence and intelligence related activities."
1.7. Section 121(a)--The phrase ", after approval of such budget,"
lacks clarity as to which "approval is referenced; this phrase should be
amended to read ", after approval by the President of such budget."
18. Section 121(a)(1)--Delete the term "various" before "entities
of the..." The term is unnecessary.
19. Section 131--Move subsection (b) down to (d) and renumber paragraphs
(c) and (d) as (b) and (c) respectively.
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2
 ecti 20. App qX&&L ?r I he f' a "'"'Tt
%I~ dart
as follow e ee... sou e
verified whether the concept of degrees of murder according to Federal
law is applicable.
21. Section 134(e)--It is recommended that the following language
be deleted from the final line of this subsection since it is redundant:
"as an official of the United States."
22. Section 136(f)--"(A)" should be inserted immediately following
"(2)" at the beginning of that paragraph.
23. Section 141(a) and section 142(a)--For purposes of clarification,
the following language should be inserted in the second sentences of both
of these subsections immediately following "subsection (b)_ the National
Security Council": "shall be defined to include a subcommittee which..
In addition, regarding the representation of the Central Intelligence
Agency on these subcommittees, it is recommended that the language following
"the Federal Bureau of Investigation," be amended to read as follows:
"a representative of the Central Intelligence Agency,..."
24. Section 142(b)--For purposes of consistency and clarity, it is
recommended that the word "international" be inserted before the word
"organizations" and after the phrase "furnish to such foreign governments
and" in paragraph (b) (4) of this subsection.
25. Section 151--The respective roles of the Intelligence Community
general counsels and inspector generals are lumped together in this
section in such a way that the appropriate responsibilities of each
are not clear. In particular, paragraph (d) (5) should. be amended to
read as follows: "(5) review periodically the practices and procedures
the inspectors general of entities of the Intelligence Community designed
to discover and report on, and general counsel procedures to report to
the inspectors general for investigations of intelligence activities
that raise questions of legality or propriety." In addition, paragraph (e)(4)
should be amended to read as follows: "(4) formulate practices and procedures
as applicable to the appropriate discovery and reporting responsibilities
of the respective inspectors general, general counsels concerning intelligence
activities that raise questions of legality or propriety;"
26. Section 15I(j)--As it appears in subparagraph (3)(A), the term
"paragraph" should be changed to "subsection."
27. Section 152(c)--The final sentence of this subsection relating to
maintenance of records in the Office of the Federal Register should be
amended so as to make clear that the "National Archives and Records Service"
and the "General Services Administration" are not intended as additional
records repositories. In other words, inclusion of these two entities
mean only that the Office of the Federal Register is in the National
Archives and Records Service which in turn is in General Services
Administration. For purposes of clarity, therefore, the final. sentence
of this subsection should be ar?ended to read: "An index of each. such
record shall be maintained in the Office of the Federal Register under
security standards approved by the Director."
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28. Section 1S3--The language of paragraphs (c) (1) and (2)
should, insofar as possible, be identical. The following language
which appears in paragraph (2) but not in paragraph (1) should be added
to paragraph (1) at the same place as it appears in paragraph (2): "to
protect the confidentiality of such information."
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S. 2525 GENERAL ISSUES
1. All definitions throughout S. 2525 should be consolidated in one
place--Title I.
2. It must be clarified as to whether references throughout S. 2525
to "this Act" have applicability only to the particular title in which
the references appear if the particular title is provided with a "short
title" or whether the references apply to the entire Act (i.e., all seven
titles).
3. In each and every instance in which a requirement for prior
reporting to the Congress is required by this title--despite the
recommendations of this Agency--the'following caveat should be included:
"the foregoing provision shall not constitute a condition precedent to
the initiation of any such ... activity."
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