INTELLIGENCE AUTHORIZATION BILL FOR FY-1987 TRANSMISSION TO CONGRESS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89B00297R000300570004-8
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 55
• Document Creation Date: December 23, 2016
• Document Release Date: December 15, 2011
• Sequence Number: 4
• Publication Date: March 17, 1986
• Content Type: MEMO

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17 !'arch 1'86
(b)(3)
(b)(3)
M.EP'ORANDUr1 FOR: E ee Addressees
SUPJECT: Intelligence Authorization Bill for FY-lP'87
Transrrission to Congress
STAT
.l. For your information, attached please find a copy of
the intelligence Authorization Eill for Fiscal Year 19C7 as
approved by the office of M.anagerrent and Fudget and transmitted
to the Congress. The bill was transmitted on 17 eiarch 1927
under cover of transmittal letters from the Director of Central
Intelligence (copies attached). Copies were also provided to (b)(3)
both intelligence oversight committees.
^_ L2 . Should youu have a, Q
uestions,
lease feel free
Attachments:
as statec.
STAT
~I (b)(3)
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 (b)(3)
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STAT
STAT
STAT
STAT
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To authorize appropriations*for fiscal year 1987 for
intelligence and intelligence-related activities of the united
States Government, the Intelligence Community Staff, and the
Central Intelligence Agency Retirement and Disability System,
and for other purposes.
Be it enacted by the Senate and House of Pepresentatives of
the United States of America in Congress assembled, that this
Act may be cited as the "Intelligence Authorization Act for
Fiscal Year 1987".
TITLE I - INTELLIGENCE ACTIVITIES
Authorization of Appropriations
SEC. 101. Funds are hereby authorized to be appropriated
for fiscal year 1957 for the conduct of the intelligence and
intelligence-related activities of the following elements of
the United States Government:
(1) The Central Intelligence Agency.
(2) The Department of Defense.
(3) The Defense Intelligence Agency.
(4) The National Security Agency.
(5) The Department of the Army, the Department of the
Navy, and the Department of the Air Force.
(6) The Department of State.
(7) The Department of the Treasury.
(8) The Department of Energy.
(9) The Federal Bureau of Investigation.
(10) The Drug Enforcement Administration.
Classified Schedule of Authorizations
SEC. 102. The amounts authorized to be appropriated under
section 101, and the authorized personnel ceilings as of
September 30, 1987, for the conduct of the intelligence and
intelligence-related activities of the elements listed in such
section, are those specified in the classified Schedule of
Authorizations prepared by the Committee of Conference to
accompany ( ) of the Ninety-Ninth Congress. That
Schedule of Authorizations shall be made available to the
Committee on Appropriations of the Senate and House of
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Feprd%sentatives`'and to the President. The President shall
provide for suitable distribution of the Schedule, or of
appropriate portions of the Schedule, within the Executive
Branch.
Personnel Ceiling Adjustments
SEC. 103. The Director of.Central Intelligence may
authorize employment of. civilian personnel in excess of the
numbers authorized for fiscal year 1987 under. sections 102 ane
202 of this Act when he determines that such action is
necessary to the performance of important intelligence
functions, except that such number may not, for any element of
the Intelligence Community, exceed 2 per centum of the number
of civilian personnel authorized under such sections for such
element. The Director of Central Intelligence shall promptly
notify the Permanent Select Committee on Intelligence of the
House of Representatives and the Select Committee on
Intelligence of the Senate whenever he exercises the granted by this section. authority.
TITLE II INTELLICEITCE C()P'MtJ!'ITY S^AFF
Authorization of Appropriations
SEC. 201. 'There is authorized to be appropriated for the
Intelligence Community Staff for fiscal year 1987the sum cf.
'$22,938,000.00.
Authorization of Personnel End Strength
SEC. 202.(a) The Intelligence Community Staff is authorizes?.
two hundred and forty six full-time personnel as of September
30, 1987. Such personnel of the Intelligence Community ;'taff
may be permanent employees of the Intelligence Conamunity.Staff
or personnel. detailed from other elements of the United States
Government.
(b) Puring 'fiscal year 1987, personnel of the Intelligence
Community Staff shall be selected so as to provide appropriate
representation from elements of the United States Government
engaged in intelligence and intelligence-related activities.
(c) During fiscal year 1987, any officer or employee of
the United States or a member of the Armed Forces who is
detailed to the Intelligence Community Staff from another
element of the United States Government shall be detailed on a
reimbursable basis, except that any such officer, employee or
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member may be detailed on a nonreimbursable basis for a period
of less than one year for the performance of temporary
functions as required by the Director of Central Intelligence.
Intelligence Community Staff Administered
in Same !Manner as Central Intelligence Agency
SEC. 203. During fiscal year 1987, activities and
personnel of the Intelligence Community Staff shall be subject
to the provisions of the National Security Act of 1947 (50
U.S.C'. 401 et seq.) and the Central Intelligence Agency Act of
1949. (50 U.S.C. 403a.et seq.) in the same manner as activities
and personnel of the'Central .Intelligence Agency.
TITLE III - CENTRAL INTELLIGENCE AGENCY
RETIREMENT AND DISABILITY SYSTEM
Authorization of Appropriations
SEC. 301. There is authorized to be appropriated for the
Central Intelligence Agency Retirement and Disability Fund for
..fiscal year 1987 the sum of $125,800,000.00.
TITLE IV - ADF'INISTRATIVE PROVISIONS PF_LATFD
TO INTELLIGENCE AGENCIES
Classified Record Destruction Schedules
SEC. 401. Section 3203a of Title 44, united States Code,
is amended by adding at the end thereof the following new
subsection:
"(g) The requirement in subsection .(a) of this section
that the Archivist provide notice in the Federal Register
of the list and schedule of records proposed for disposal
shall not apply to those lists and schedules that are
properly classified pursuant to rxecutive Order 12356, or
its successor order.".
...Interlocutory Appeal Authority'
SEC. 402. The National Security Act of 1947 (50 U.F.C.
401 et seq.) is amended by adding after Section 102a the.
following new section:
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"EEC. 102b. In any civil action, suit, or preceec.ing
in which the United States or any officer, employee or agent
thereof is a party, or in which the United States has an
interest, an interlocutory appeal may be taken as of right from
a decision of'any court of the United States, or a judge
thereof, on any evidentiary or discovery matters,
or potentially dispositive motions, if the Director of Central
Intelligence, in prior consultation with the Attorney
General, makes a written finding that an evidentiary or
discovery matter will have an adverse effect on national
security. This finding shall be transmitted to the Attorney
General. In such cases, appeal may be taken upon application
of the Attorney Ceneral to the appropriate courts of appeals,
which shall have jurisdiction of appeals under this provision,
except where direct review may be had in the Supreme Court. A
stay of all proceedings shall be granted pending disposition of
the appeals.".
Protection of Agency Activities
SEC. 403. (a) The Central Intelligence Agency Act of 1949
(50 U.S.C. 403a et seq.) is amended by adding at the end of
Section 16 the following new section:
"SEC. 17. In its discretion, the Agency may, on the
grounds of prior or current alcohol or drug abuse,
deny to or remove from any individual access to classified
information; refuse to hire any applicant for Agency
employment; and terminate, suspend, or place limitations or
conditions on the continued employment of any Agency employee,
notwithstanding any other provisions of law.".
(b) The rational Security Agency Act of 1959 (50 U.G.C. 402
note) is amended by redesignating section 2 as section 2(a),.
and by adding at the end thereof the following new subsection:
"(b) The Secretary of Defense (or his designee for the
purpose) may, in his discretion, on the grounds of prior or
current alcohol or drug abuse, deny to or remove from any
individual access to classified information; refuse to hire an',
applicant for Agency employment; and terminate, suspend, or
place limitations or conditions on the continued employment of
any Agency employee, notwithstanding any other provisions of
law.".
(c) Section 1604 of chapter 83 of title 10, United States
Code, is amended by adding at the end thereof the following new
subsection:
"(f) The Secretary of Defense (or his designee for the
purpose) may, in his discretion, on the grounds of prioror
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curr-eat alcohol or drug abuse, deny to or remove from any
civilian officer or employee of the Defense Intelligence Agency
access to classified information; refuse to hire any applicant
for employment with the Defense Intelligence Agency; and
terminate, suspend, or place limitations or conditions on the
continued employment of any Defense Intelligence employee
notwithstanding any other provisions of law.".
TITLE V - SUPPORT FCR DEFENSE .INTELLIGENCE
COLLECTION ACTIVITIES
SEC. 501..(a) Subtitle A of Title 10, United States Code,
is amended by adding the following new chapter. after Chapter 18:
"CHAPTER 19 - SUPPORT FOR INTFLLIGENCE
SEC. .
391.'
Purpose of this chapter.
392.
Definition.
393..
Authority
to conduct commercial cover.
394.,
Authority
services.
to acquire logistic support, supplies, and
395.
Cversight.
396.
General Prcvision.s.
"SEC. 391. Purpose of this chapter.
The purpose of this chapter is to provide statutory
authority for the Secretary of Defense or the Secretaries of
the t!ilitary Departments to conduct support activities
necessary for authorized and appropriately coordinated
intelligence collection activities of the Department of
Defense.
"SEC. 352. Definition.
a.. "Intelligence collection activities" means the
collection of foreign intelligence or counterintelligence
information by intelligence components of the Department of
Defense..
b.. "Intelligence support activities" means those
activities described in sections 393 and 394, below.
c. "Commercial. cover" means a business entity that is
established solely to conceal the role of an intelligence
component of the Department of Defense as it performs
intelligence collection activities.
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"SEC. 393. Authority to conduct commercial cover.
a. "The Secretary of Defense or the Secretaries of
the Military Departments, after consultation with the
Director of Central Intelligence and the Director of the
Federal Bureau of Investigation, as appropriate, may
establish and conduct commercial entities such as
corporations, partnerships, sole proprietaries, and other
business entities as commercial covers to support
intelligence collection activities of the Department of
Defense, as defined herein. Such commercial entities may
be established only upon written certification by the
Secretary concerned that commercial cover is necessary
to the conduct of authorized intelligence collection
activities.
b. "The establishment and operation of commercial
entities pursuant to this section shall be in accordance
with prevailing commercial practices so long as such
practices are not inconsistent with the purposes of
commercial cover. To this end, laws applicable to federal
appropriations, federal property management, federal
acquisitions, federal employment and government
corporations shall not apply to the establishment and
operation of commercial covers upon the written
certification by the Secretary concerned or his designee
for the purpose that the application of such laws would
risk the compromise of commercial cover.
c. "The Secretary of Defense or the Secretaries of
the Military Departments, or their designees, are
authorized to deposit and withdraw funds appropriated for
the Department of Defense used to conduct commercial cover
and funds generated by the business entities authorized by
this section in banks or other financial institutions.
d. "Funds generated by such business entities may be
used to offset necessary and reasonable expenses incurred
by the commercial cover. As soon as practicable, funds
generated by a commercial cover that are no longer
necessary for the conduct of that commercial cover shall
be deposited in the Treasury of the.ttnited States as
miscellaneous receipts.
e. "Upon the liquidation, dissolution, sale, or other
final disposition of a commercial cover established and
conducted under the provisions of this section, the funds,
after obligations are met, shall be deposited in the
Treasury of the United States as miscellaneous receipts.
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" EC. 394. Authority to acquire logistic support,
supplies,-and services.
a. "The Secretary of Defense or the Secretaries of
the t'ilitary Departments, or their designees, may acquire
any goods, services, property, buildings, facilities, space,
insurance, licenses and any equipment necessary in order to
establish or maintain a commercial cover.
b. "Acquisitions made under the provisions of this
section are to be made utilizing procedures consistent with
prevailing commercial practice so long as such practices
are not inconsistent with the purposes of the commercial
cover. To this end, laws applicable to federal
acquisitions, federal appropriations, federal property
management, and federal employment shall not apply where
the application of such laws would risk compromise of the
commercial cover.
"SEC. 395. General Provisions.
a. "The Secretary of Defense shall. promulgate
regulations to ensure oversight, operational effectiveness,
and accountability of the intelligence support activities
conducted pursuant to sections 393 and 394 of this title.
b. "The Secretary of Defense or Secretaries of the
Military Departments shall ensure that elements of the
Department of. Defense that undertake intelligence support
activities pursuant to this chapter conduct an annual
review and audit of such support activities.
c. "Intelligence support activities authorized under
this chapter shall be protected pursuant to 50 U.S.C.
403(d)(3).
(b) The table of chapters at the beginning of
subtitle A of such title and at the beginning of Part I of
such subtitle are each amended by inserting after the item
relating to chapter 18 the following new item:
"19. Support for Intelligence......... 391".
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TITLE- VI - ENHANCED-FBI CCUNTERINTELLIGENCE
CAPABILITIES
Improved Access to Financial Records in Connection
with Counterintelligence Investigations
SFC. 601. Subsection 1114(a) of the Right to Financial
Privacy Act of'1978 (12 U.S.C. 3414) is amended by adding at
the end of that subsection the following new paragraph:
"(a) (5) Notwithstanding any provisions of federal, state,
local or foreign law to the contrary, a financial institution,
or officer, employee, or agent of a financial institution,
shall provide access to, and copies of, financial records of a
customer that are responsive to a request made by a Government
authority authorized to conduct foreign intelligence or
counterintelligence activities, for purposes of conducting such
activities.
Access to Telephone Toll Records
SEC. 602. (a) Chapter 33 of title 28 is amended by adding
at the end thereof the following new section:
"SEC. 538. Access to Telephone Toll Records
(a) Notwithstanding any provisions of federal,
state, or local law to the contrary, upon receipt of a
certification signed by the Director of the Federal Bureau of
Investigation or a supervisory official of a rank desicnated by
the Director, that the Federal Bureau of Investigation is
conducting a foreign counterintelligence investigation in
accordance with applicable guidelines established by the
Attorney Ceneral of the United States, a communications common
carrier shall produce requested telephone subscriber
information and tell billing record information.
(b) totwithstanding any provisions of federal, state or
local law, at the rec.uest of another agency within the
Intel-ligence.Community, as defined in Executive order 12333, or
successor orders, which request meets the standards contained
in the guidelines referred to in subsection (a), the Federal
Bureau of Investigation is authorized to request telephone toll
record information when the information is relevant to the
intelligence responsibility of such agency, and a
communications common carrier shall produce the requested
telephone subscriber information and toll billing record
information.
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(b) No officer, employee, or agent of the communications
common carrier shall disclose to any person that the Federal
Bureau of Investigation has sought or obtained access to the
subscriber information and/or toll billing record information.
. (d) The Federal Bureau of Investigation is authorized to
disseminate information obtained pursuant to this section to
other agencies within the intelligence Community, as defined in
Executive Order 12333 or successor orders, when the information
is relevant to foreign counterintelligence responsibilities of
such agency."
(b) The table of contents for chapter 33 of title 22,
United States Code is amended by adding at the end thereof the
following:
"538. Access to Telephone Toll Records.".
Access to State and Local
Criminal Records
SEC. 603. (a) Section 9101 of title 5, United States Code is
amended:
(1) in paragraph (1) of subsection (b) by striking out "or"
after "Office of Personnel Management" and by inserting ", or
the Federal Bureau of Investigation" after "the Central
Intelligence Agency;"
(2) in subparagraph (3)(A) of subsection (b) by striking
out "or" after "Office of Personnel Management" and by
inserting ", or the Federal Bureau of Investigation" after "the
Central Intelligence Agency;"
(3) in subparagraph (3)(F) of subsection (b) by striking
out "or" after "Cffice of Personnel Management" and by
inserting ", or the federal Bureau of Investigation" after "the
Central Intelligence Agency;" and
(4) in subsection (c) by striking out "or" after "Cffice of
Personnel Management" and by inserting ", or the Federal Pureau
of Investigation" after "the Central Intelligence Agency."
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W Section 803(a) of title 8 of the Intelligence
Authoriza-ticn Act for Fiscal year 1986 is amended by striking
out "and" after the "the Office'of Personnel ranagement" and by
inserting ", and the Federal Eureau of Investigation" after
"the Central Intelligence Agency".
(c) The amendments made by.this Section of this Act shall
become effective with respect to any inquiry which begins after
the date of enactment of this Act conducted by the Federal
Bureau of Investigation for purposes specified in paragraph
(b)(1) of section 9101 of Title 5.
TITLE VII - DOD ADMINISTRATIVE AND PERSONNEL
IMPROVEMENTS
Extension of Secretary's Termination Authority for
PIA Civilian Personnel
SEC. 701. Paragraph 1604(e)(1) of chapter 83 of title 10,
United States Code, is amended by striking out "1985 and 1986"
and inserting in lieu thereof "1987 and 1928".
Clarification of Defense Mapping Agency Authorities
SEC. 702.(a) Chapter 167 of title 10, United States Core
is amended by adding at the end thereof the following:
2795. Exchange of flapping, Charting and Geodesy
Data with Foreign Nations.
"The secretary of Defense may subject to the requirements
of Section 112b of Title I of the United States Code and the
regulations promulgated thereunder (22 Crr Part 121), and under
such additional regulations as are deemed appropriate,
authorize the Defense Mapping Agency to exchange or furnish
mapping, charting and geodetic data, supplies or services to a
foreign country or international organization pursuant to an
agreement for the production or exchange of such data.".
(b) The table of contents of Chapter 167 of Title 10,
United States Code is amended by adding at the end thereof:
is 2795. Exchange of Mapping, Charting and Geodesy Data
with Foreign Nations.".
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Medical Evacuation Authority for DIA Civilian
Employees Stationed Overseas
SEC. 703'. Subsection 1605(a) of Chapter 83 of title 10,
United- States Code, 'is amended by inserting "(5)" after
"paragraphs (2), (3), (4) " and after "22 U.S.C. 4081 (2), (3
(4)"
"Recycling" of Certain Proceeds
from DoC Counterintelligence Operations
SEC. 704 (a). The Secretary of Defense may authorize
without regard to the provisions of Section 3302 of title 31,
United States Code, use of proceeds from counterintelligence
operations conducted by components of the Military Departments
to offset necessary and reasonable expenses, not otherwise
prohibited by law, incurred in such operations, if the use of
appropriated funds to meet such expenses would not be
practicable.
(b) As soon as the net proceeds from such
counterintelligence operations are no longer necessary for 'the
conduct of those.operations, such proceeds shall be deposited
into the Treasury as miscellaneous receipts.
(c). The Secretary of Defense shall establish policies
and procedures' to govern acquisition, use, management and
disposition of proceeds from counterintelligence operations
conducted by components of the Military Departments, including
effective internal systems of accounting and administrative
controls.
TITLE VIII - (Et?EPAL PROVISICt'S
Increase in Employee Compensation
and Benefits Authorized by Law
SEC. 801. Appropriations authorized by this Act for
salary, pay; retirement, and-other benefits for Federal
employees may be increased by such additional or supplemental
amounts as may be necessary for increases in such compensation
or benefits authorized by law.
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INTELLIGENCE AUTHORIZATION ACT FOR
FISCAL YEAR 1987
SECTION-BY-SECTION ANALYSIS
AND EXPLANATION
INTELLIGENCE ACTIVITIES
Section 101 lists the departments, agencies, and other
elements of the United States Government for whose intelligence
and intelligence-related activities the Act authorizes
appropriations for fiscal year 1987.
Section 102 makes clear that details of the amounts
authorized to be appropriated for intelligence and
intelligence-related activities and personnel ceilings covered
under this title for fiscal year 1987 are contained in a
classified Schedule of Authorizations. The Schedule of
Authorizations is incorporated into the Act by this section.
Section 103 authorizes the Director of Central Intelligence
in fiscal year 1987 to expand the personnel ceilings applicable
to the components of the intelligence Community under Sections
102 and 202 by an amount not to exceed 2 percent of the total
of the ceilings applicable under these sections. The Director
may exercise this authority only when necessary to the
performance of important intelligence functions or to the
maintenance of a stable personnel force, and any exercise of
this authority must be reported to the two intelligence
committees of the Congress.
INTELLIGENCE COMMUNITY STAFF
Section 201 authorizes appropriations in the amount of
$22,938,000.00 for the staffing and administration of the
Intelligence Community Staff.
Section 202 provides details concerning the number and
composition of Intelligence Community Staff personnel.
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Subsection (a) authorizes full-time personnel for the
Intelligence Community Staff for fiscal year 1987, and provides
that personnel of the Intelligence Community Staff may be
permanent employees of the Staff or detailed from various
elements of the United States Government.
Subsection (b) requires that detailed employees be selected
so as to provide appropriate representation from the various
departments and agencies engaged in intelligence and
intelligence-related activities.
Subsection (c) requires that personnel be detailed on a
reimbursable basis except for temporary situations.
Section 203 provides that the Director of Central
Intelligence shall utilize existing statutory authority to
manage the activities and to pay the personnel of the
Intelligence Community Staff. This language reaffirms the
statutory authority of the Director of Central Intelligence and
clarifies the legal status of the Intelligence Community
Staff. In the case of detailed personnel, it '.is understood
that the authority of the Director of Central Intelligence to
discharge personnel extends only to discharge from service at
the Intelligence Community Staff and not from federal
employment or military service.
CENTRAL INTELLIGENCE AGENCY
RETIREMENT AND DISABILITY SYSTEM
Section 301 authorizes fiscal year 1987 appropriations in
the amount of 125,800,000.00 for the Central Intelligence
Agency Retirement and Disability Fund.
ADMINISTRATIVE PROVISIONS RELATED TO
INTELLIGENCE AGENCIES
Section 401 exempts federal agencies that submit classified
record destruction schedules from the requirement contained in
?3303a of Title 44, United States Code, that the Archivist may
approve records disposal requests only after publication of
notice in the Federal Register and an opportunity for
interested persons to submit comments thereon.
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The requirement that the Archivist publish record disposal'
requests -in - the Federal Register was added by ?204 of the
National Archives and Records Administration Act of 1984. Ey
requiring that the Archivist provide notice in the Federal
Register, the public would be given an opportunity to o tain
and comment on the the actual schedule of records proposed for
destruction. While the purpose of the provision, was to give
the public a role in determining what records should be
destroyed, the legislative history makes clear that Congress
did "not intend . . .for such public notice to be a paperwork
burden for any affected parties or to unreasonably delay the
disposal of such records."' H. Conf. Rpt. No 1124, 98th Cong.,
2d Sess., 29-30, reprinted in 1984 U.S. Code Cong. &.Ad. News
3904-3905.
Unfortunately, the requirement for publication' in the
Federal Register-has become a paperwork burden for CIA and NSA
that has unreasonably delayed the disposal of records. The
problem arises because the CIA and NSA record control schedules
submitted to the National Archives and Records Administration
(NARA) are classified confidential or are protected under the
National Security Agency Act of 1959. 'NARA has therefore
decided that'the Federal Register notice concerning classified
records schedules will be limited to the following information:
a) the identity of the requesting agency;
b) the NARA job number assigned to the schedule; and
c).the reason the schedule is excluded from public
disclosure.
Because the CIA and LISA record destruction schedules are
classified or protected by statute and not accessible to the
public, the statutory requirement that the Archivist publish
notice of them in the Federal Register so as to provide the
public an opportunity to obtain them makes absolutely no
sense. Furthermore, this requirement unreasonably delays
approval by the Archivist of NSA and CIA record destruction
schedules since the public is given 60 days-to comment on the
notice in,the Federal Register. Exempting those agencies 'that
submit classified record destruction schedules from the
provision requiring notice. in the Federal Register of requests
to destroy records would expedite the process of approval of
requests to destroy records and not deprive the public of any
information they would otherwise be: entitled to receive. The
unclassified record disposition schedules from any.agency are
not exempt from the publication requirements.
Section 402 amends the National Security Act of 1947 to
permit an interlocutory appeal by the United States from any
decision of a united States court or a judge thereof on any
evidentiary ruling or dispositive motion when the Director of
Central Intelligence certifies that the decision being appealed
will have an,adverse impact on the national security. Recently,
.14
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the 'United States has encountered significant problems in
attempting to perfect interlocutory appeals of several court
decisions. The hallmark of these cases is an attempt by the
plaintiffs to force the United States to submit to civil
discovery and a trial on the merits. The Agency has attempted
to narrowly focus the litigation on the pure legal principles
involved and not on the facts of the case, which, in all
likelihood, will be in dispute. Thus, in such cases, the
Agency has filed motions to-dismiss or for summary judgment
which deal only with matters of law. In those cases where our
motion has been denied, we must choose between litigating the
case on its merits, or seeking an interlocutory appeal of the
order denying our motion. Litigating the case on its merits is
not an attractive option because these cases frequently involve
the disclosure of classified information in a public forum.
Furthermore, in these cases the Agency has taken the position
that as a matter of law, the Director's authority to take
certain personnel action is not subject to legal challenge and,
by submitting to discovery and trial on the merits, our legal
right not to be tried would be fatally undermined.
Given the difficulty in litigating these cases on the
merits, the Agency has attempted to obtain an interlocutory
appeal of the court decision denying our motion to dismiss.
One way to obtain an interlocutory appeal is if the lower court
certifies that the order involves a controlling question of law
as to which there is a substantial ground for difference of.
opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the litigation.
The Court of Appeals may then, in its discretion, permit an
appeal to be taken from such order. See 28 U.S.C. ?1292(b). A
second method for obtaining an interlocutory appeal is by
arguing that the decision of the lower court are collateral
orders appealable under the doctrine of Cohen v. Beneficial
Loan Corportaion, 337 U.S. 541 (1949). That case provides for
an interlocutory appeal if it can be shown that the order of
the lower court was a final disposition of a claimed right
which is not an ingredient of the cause of action and too
independent of the cause itself to require that appellate
consideration be deferred until the case is adjudicated. The
Agency has attempted to employ this doctrine and the
certification procedure in several cases to obtain an
interlocutory appeal. In one case, the Court of Appeals ruled
that an order denying a motion made by the Agency to dismiss a
complaint challenging the Director's statutory authority to
terminate employees was not a collateral order under the Cohen
doctrine. In another case, the likelihood of obtaining an
interlocutory appeal under the Cohen doctrine or the
certification process was so small that a decision was made not
to attempt to proceed with an interlocutory appeal.
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E.aced with the possibility of disclosure of classsified
information in a public forum through litigation of the
underlying grievance and an inability to obtain an
interlocutory appeal of the lower court order denying our
motion to dismiss, the Agency has settled such cases for
hundreds of thousands of dollars. Clearly, the U.S. Government
should not be put into a position of being forced to settle
cases to avoid the disclosure of classified information,
particularly where there is a likelihood that an appellate
court would ultimately vindicate the Director's authorities
after the case had been litigated on the merits in the lower
court.
These problems can be resolved if the United States can
obtain the right to undertake an interlocutory appeal upon a
certification that the national security justifies such an
appeal. It is not intended, however, that the right
established by this section in any way affects the role of the
Attorney General in managing the litigation caseload of the
United States. Additional information regarding this
provision, which cannot be provided in a public document, has
been previously provided to the Senate Select Committee on
Intelligence and the House Permanent Select Committee on
Intelligence.
Section 403 amends the Central Intelligence Agency Act of
1949, the rational Security Agency Act of 1959, and Section
1604 of Chapter 83 of title 10, United States Code, to make
clear that CIA, NSA and DIA can continue to deal with security
problems in the area of drug and alcohol abuse without regard
to the provisions of any other law, rule or regulation. Recent
court decisions, e. g., Whitlock v. Donovan, Civil Action No.
83-3398 (D.D.C. 1984), and rulings by both the Equal Employment
Opportunity Commission and the Merit Systems Protection Board
have suggested that there will be increasing emphasis on
treating alcoholism and alcohol abuse as a handicap protected
under the provisions of the Rehabilitation Act of 1973, as
amended, (29 U.S.C. 701 et seq.) which outlaws handicap
discrimination. See Comprehensive Alcohol Abuse and Alcohol
Prevention Treatment and Rehabilitation Act of 1970; see also
Ruzek v. GSA, 7 AISPB 307. By implication there will likely be
a similar emphasis on treatment of drug abuse as a handicap
with the same protection (Drug Abuse Office and Treatment Act
of 1972 and 43 Op. Atty. Gen. 12). This may very well result
in an increased prospect of litigation whenever CIA, NSA or DIA
determine that drug or alcohol abuse requires the denial or
revocation of security approvals, or the denial or loss of
employment. Not only is there concern about the prospects of
having to litigate these decisions, but there also is a
likelihood that CIA, NSA and DIA will be forced more and more
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to m~'ke accommodations to take into account these "handicaps,"
r.egardles-s of the security consequences of continuing to employ
or clear such persons. In order to avoid 'these additional
administrative and litigation problems, which could
substantially impair the ability of CIA, NSA and DIP. to carry
out their national security missions and functions, this
amendment would clearly authorize CIA, t*SA and DIA to deal with
the security implications of alcohol and drug abuse in the same
manner as in the past. Additional information regarding this
provision, which cannot be provided in a public document, has
been previously given to the Committees.
SUPPORT FOR DEFENSE INTELLIGENCE
COLLECTION ACTIVITIES
Section 501 adds a new chapter 19 to subtitle A of Title 10,
United States Code, authorizing the establishment and conduct of
corporations or other business entities to provide support for
Department of Defense undercover-intelligence collection
activities.
Proposed subsection 391 states that the purpose of proposed
chapter 19 is to provide the SECDEF and the Secretaries of the
Military Departments to establish the. statutory authority
commercial covers to support intelligence collection -
activities.
Proposed subsection 392a defines a new term "intelligence
,collection activities". The use of a new term rather than.the
redefining,of the term "intelligence activities" precludes the
development of two definitions (E.C. 12333 & statutory) for the
same term.
Proposed subsection 392b defines.the term "intelligence
support activities" to.mean the establishment, acquisition and
conduct of commercial cover systems and the. acquisition of
logistical support thereto as described in subsections 393 and
394.
Proposed subsection 392c defines a new term,-"commercial
cover", which is used throughout the proposed Chapter 19 of
this title.
Proposed subsection 393a authorizes the Secretary of
Defense or the Secretaries of the Military Departments to
establish and conduct commercial covers as commercial
entities. In making specific reference to consultation with
the Director of Central Intelligence and the Director of the
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Federal R_ureau of Investigation, this subsection is not
intended in any way to alter or derogate from the
responsibilities and authority of the Chief of Mission to a
foreign country under 22 U.S.C. 3927 for direction,
coordination, and supervision of all U.S. Government employees
in that country (except for employees under the command of a
U.S. area military commander) or from established procedures
for coordination with the Secretary of state in the conduct of
clandestine activities. Subsection 393a further states that
the establishment of a commercial cover requires a finding in
the form of a written certification by the Secretary
responsible for the commercial entity that the commercial cover
is necessary to the conduct of authorized intelligence
collection activities.
Proposed subsection 393b requires that the establishment
and operation of such commercial covers be in accordance with
prevailing commercial practice. Federal statutes that regulate
the establishment and operation of commercial and industrial
type government activities shall not apply to the establishment
and operation of commercial covers conducted, pursuant to this
section when there is a written certification by the Secretary
concerned or his designee that compliance with such statutes
would risk compromise of the commercial cover. It is not
intended that the authorities contained in this section will
relieve the Department of Defense from any requirements of
applicable laws. Any exemptions apply only to the operations
of the commercial cover. Commercial covers must of necessity
conform to standard commercial practices. Compliance with
statutory requirements that govern routine government
procurement and financial transactions would not conform with
such prevailing commercial practices and would flag a
commercial cover entity as being connected with the United
States Government, thus risking the security of the commercial
cover and the underlying intelligence collection activities.
In the past, Congress has exempted the FPI from certain
procurement and financial requirements, e.g., the
Anti-Deficiency Act, 31 U.S.C. 1341, and the Department of
Defense is proposing that similar exemptions be authorized for
intelligence support activities. It is virtually impossible to
foresee and list by citation every statutory requirement that
may be incompatible with intelligence support activities.
Therefore, subsection 393b describes the exemptions
categorically in order to capture and embody all the provisions
that would risk compromising the commercial cover. Such
statutes encompass laws applicable to federal appropriations,
federal property management, federal acquisitions, federal
employment, and government corporations. These categories of
law are defined below.
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"Federal acquisitions" means acquiring real estate, goods
or services for the United States Government. These activities
are principally governed by Titles 41 and 10 of the United
States Code. Title 41 requirements that may be incompatible
with intelligence support activities include:
41 U.S.C. 5 which establishes the requirement to advertise
.proposed purchases and proposed contracts for supplies or
services.
41 U.S.C. 35 which requires the inclusion of contract
provisions such as the Walsh-Healey Act representations and
stipulations.
41 U.S.C. 46 and 48c which establish the requirement to
purchase blind-made products.
41 U.S.C. 255 which limits advance payments to contractors.
41 U.S.C. 253 which requires full and open competition.
Title 10 requirements that may be incompatible with
intelligence support activities include:
10 U.S.C. 2207 which prohibits contracting unless the
contract contains specific provisions.
10 U.S.C. 2276 which makes the contractor's books subject
to Government audit.
10 U.S.C. 2301 which prohibits cost-plus-a-percentage-of-
cost contracts. This section also subjects a commercial
cover to small business set-asides. This may conflict with
prevailing commercial practice.
10 U.S.C. 2304 which limits the use of negotiated pro-
curements. Formal advertisement (sealed bids) may not be
consistent with prevailing commercial practice.
10 U.S.C. 2306 which places restrictions on the kinds of
contracting that may be used. These restrictions may
conflict with prevailing commercial practice. This section
also creates a right to examine all books, records, etc. of
the contractor or subcontractor. This may also identify
the intelligence support activity as a U.S. Government
entity. ?
10 U.S.C. 2307 which prohibits certain advance payments for
property and services. This may conflict with prevailing
commercial practice.
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` TITLB- VI - EPTFAI`'.CED FBI CCUPTTERID'TELLIGENCE
CAPABILITIES
Improved Access to Financial Records in Connection
with Counterintelligence Investigations
SFC. 601. Subsection.1114(a) of the Right to Financial
Privacy Act. of 1978 (12 U.S.C'. 3414) is,amended by adding at
the end of that subsection. the following new paragraph:
" (a) (5) Notwithstanding any provisions of federal, state,
local or foreign law to the contrary, a financial institution,
or officer, employee, or agent of .a financial institution,
shall provide access to, and copies of, financial records of a
customer that are-responsive to a request made by a Governmen t
authority authorized to conduct foreign intelligence or
counterintelligence activities, for purposes of conducting such
activities.
Access to Telephone Toll Pecores
SEC. 602. (a) Chapter 33 of title 28 is arended by adding-
at. the end thereof the-following new section:
"SEC. 538. Access to Telephone Toll Records
(a) Notwithstanding any provisions of federal,
state, or local law to the contrary, upon receipt of a
certification signed by the Director of the Federal.Bureau of
Investigation or a supervisory official of a rank desicnated by
the.Director, that the Federal Bureau of Investigation,is
conducting a foreign counterintelligence investigation in
accordance with applicable guidelines established by the
Attorney Ceneral of the United States, a'communications common
carrier shall produce requested telephone subscriber
information and toll billing record information..
(b) t'otwithstanding any provisions of federal, state or
local law, at the,recuest of another agency within the
Intelligence Community, as defined in Executive order 12333, or
successor orders, which request meets the standards contained
in the guidelines referred to in subsection (a), the Federal
Bureau of. Investigation is authorized to request telephone toll
record information when the information is relevant to the
intelligence responsibility of such agency, and a
communications,common carrier shall produce the requested
telephone subscriber information and toll billing record
information.
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(c) No officer, employee, or agent of the communications
common carrier shall disclose to any person that the Federal
Bureau of Investigation has sought or obtained access to the
subscriber information and/or toll billing record information.
(d) The Federal Bureau of Investigation is authorized to
disseminate information obtained pursuant to this section to
other agencies within the Intelligence Community, as defined in
Executive Order 12333 or successor orders, when the information
is relevant to foreign counterintelligence responsibilities of
such agency."
(b) The table of contents for chapter 33 of title 28,
United States Code is amended by adding at the end thereof the
following:
"538. Access to Telephone Tcll records.".
Access to State and Local
Criminal Records
SEC. 603. (a) Section 9101 of title 5, United States Code is
amended:
(1) in paragraph (1) of subsection (b) by striking out "or"
after "Office of Personnel Management" and by inserting ", or
the Federal Bureau of Investigation" after "the Central
Intelligence Agency;"
(2) in subparagraph (3)(A) of subsection (b) by striking
out "or" after "Office of Personnel Management" and by
inserting ", or the Federal Bureau of Investigation" after "the
Central Intelligence Agency;"
(3) in subparagraph (3) (F) of subsection (b) by striking
out "or" after "Office of Personnel Management" and by
inserting ", or the federal Bureau of Investication" after "the
Central Intelligence Agency;" and
(4) in subsection (c) by striking out "or" after "Office of
Personnel Management" and by inserting ", or the Federal Pureau
of Investigation" after "the Central Intelligence Agency."
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'rb) Section'803(a) of title 8 of the Intelligence
Authorizaticn Act for Fiscal year 1986 is amended by striking
out "and" after the "the Office of Personnel !'anagement" and by
inserting ", and the Federal Eureau of Investigation" after
"the Central Intelligence Agency".
(c) The amendments made by-this Section of this Act shall
become effective with respect to any inquiry which begins after
the date of enactment of this Act conducted by the Federal
Bureau of Investigation for purposes specified in paragraph
(b)(1) of section 9101 of Title S.
TITLE VII - DOD ADMINISTRATIVE AND PERSONNEL
IMPROVEMENTS
.Extension of Secretary's Termination Authority for
PIA Civilian Personnel
SEC. 701. Paragraph 1604(e)(1) of chapter 83 of title 10,
United States Code, is amended by striking out "1985 and 1986"
and inserting in lieu thereof "1987 and 1928".
Clarification of refense Mapping Agency Authorities
SEC. 702.(a) Chapter 167 of title 10, United States Code
is amended by adding at the end thereof the following:
2795. Exchange of Dapping, Charting and Geodesy
Data with Foreign Nations.
"The secretary of Defense may subject to the requirements
of Section 112b of Title I of the United States Code and the
regulations promulgated thereunder (22 CFP Part 121), and under
such additional regulations as are deemed appropriate,
authorize the Defense Mapping Agency to exchange or furnish
mapping, charting and geodetic data, supplies or services to a
foreign country or international organization pursuant to an
agreement for the production or exchange of such data.".
(b) The table of contents of Chapter 167 of Title 10,
United States Code is amended by adding at the end thereof:
is 2795. Exchange of Mapping, Charting and Geodesy Data
with Foreign Nations.".
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IN. Medical Evacuation Authority for DIA Civilian
Employees Stationed Overseas
SEC. 703. Subsection 1605(a) of Chapter 83 of title 10,
United States Code, is amended by inserting "(5)" after
"paragraphs (2), (3), (4)" and after "22 U.S.C. 4081 (2), (3),
"Recycling" of Certain Proceeds
from DoD Counterintelligence Operations
SEC. 704 (a). The Secretary of Defense may authorize
without regard to the provisions of Section 3302 of title 31,
United States Code, use of proceeds from counterintelligence
operations conducted by components of the Military Departments
to offset necessary and reasonable expenses, not otherwise
prohibited by law, incurred in such operations, if the use of
appropriated funds to meet such expenses would not be
practicable.
(b) As soon as the net proceeds from such
counterintelligence operations are no longer necessary for the
conduct of those operations, such proceeds shall be deposited
into the Treasury as miscellaneous receipts.
(c) The Secretary of refense shall establish policies
and procedures to govern acquisition, use, management and
disposition of proceeds from counterintelligence operations
conducted by components of the !'ilitary Departments, including
effective internal systems of accounting and administrative
controls.
TITLE VIII - cEr?EPAL PROVISICI'S
Increase in Employee Compensation
and Benefits Authorized by Law
SEC. 801. Appropriations authorized by this Act for
salary, pay, retirement, and other benefits for Federal
employees may be increased by such additional or supplemental
amounts as may be necessary for increases in such compensation
or benefits authorized by law.
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INTELLIGENCE AUTHORIZATION ACT FOR
FISCAL YEAR 1987
SECTION-BY-SECTION ANALYSIS
AND EXPLANATION
INTELLIGENCE ACTIVITIES
Section 101 lists the departments, agencies, and other
elements of the United States Government for whose intelligence
and intelligence-related activities the Act authorizes
appropriations for fiscal year 1987.
Section 102 makes clear that details of the amounts
authorized to be appropriated for intelligence and
intelligence-related activities and personnel ceilings covered
under this title for fiscal year 1987 are contained in a
classified Schedule of Authorizations. The Schedule of
Authorizations is incorporated into the Act by this section.
Section 103 authorizes the Director of Central Intelligence
in fiscal year 1987 to expand the personnel ceilings applicable
to the components of the Intelligence Community under Sections
102 and 202 by an amount not to exceed 2 percent of the total
of the ceilings applicable under these sections. The Director
may exercise this authority only when necessary to the
performance of important intelligence functions or to the
maintenance of a stable personnel force, and any exercise of
this authority must be reported to the two intelligence
committees of the Congress.
INTELLIGENCE COMMUNITY STAFF
Section 201 authorizes appropriations in the amount of
$22,938,000.00 for the staffing and administration of the
Intelligence Community Staff.
Section 202 provides details concerning the number and
composition of Intelligence Community Staff personnel.
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Subsection ('a) authorizes full-time personnel for the
Intelligence Community Staff for fiscal year 1987, and provides
that personnel'of the Intelligence Community, Staff may be
permanent employees of the Staff or detailed from various
elements of the United States Government.
Subsection (b) requires that detailed employees be selected
so as to provide appropriate. representation from the various
departments and agencies engaged in intelligence and
intelligence-related activities.'
Subsection (c) requires that personnel be detailed on a
reimbursable basis except for temporary situations.
Section 203 provides that the Director of Central
Intelligence shall utilize existing statutory authority-to
manage the activities and to pay the personnel of the
Intelligence Community Staff. This language.reaffirms the
statutory authority of the Director of Central Intelligence and
clarifies the legal status of the Intelligence Community
Staff. In the case of detailed personnel, it is understood
that the authority of the Director of Central Intelligence. to
discharge personnel extends only to discharge from service at
the Intelligence Community Staff and not from federal
employment or military service.
TITLE III
CENTRAL INTELLIGENCE AGENCY
RETIREMENT AND DISABILITY SYSTEM
Section 301 authorizes fiscal year 1987. appropriations in'
the amount of 125,800,000.00 for the Central Intelligence
Agency Retirement.and Disability Fund.
TITLE IV
ADMINISTRATIVE PROVISIONS RELATED TO
INTELLIGENCE AGENCIES
Section 401 exempts federal agencies that submit classified
record destruction,schedules from the requirement contained in
?3303a of Title 44, United States Code, that the Archivist may
approve records disposal requests only after publication of
notice in the Federal Register and an opportunity for
interested persons to submit comments thereon.
13
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he requirement that the Archivist publish record disposal
requests -in the Federal Register was added by ?204 of the
National Archives and Records Administration Act of 1984. Ey
requiring that the Archivist provide notice in the Federal
Re ister, the public would be given an opportunity to o in
and comment on the the actual. schedule of records proposed for
destruction. While the purpose of the provision was to give
the public a role in determining what records should be
destroyed, the legislative history makes clear that Congress
did "not intend . . for such public notice to be a paperwork
burden for any affected parties or to unreasonably delay the
disposal of such records." H. Conf. Rpt. No 1124, 98th Cong.,
2d Sess., 29-30, reprinted in 1984 U.S. Code Cong. & Ad. News
3904-3905.
Unfortunately, the requirement for publication in the
Federal Register has become a paperwork burden for CIA and NSA
that has unreasonably delayed the disposal of records. The
problem arises because the CIA and NSA record control schedules
submitted to the National Archives and Records Administration
(NARA) are classified confidential or are protected under the
National Security Agency Act of 1959. NARA has therefore
decided that the Federal Register notice concerning classified
records schedules will be limited to the following information:
a) the identity of the requesting agency;
b) the NARA job number assigned to the schedule; and
c) the reason the schedule is excluded from public
disclosure.
Because the CIA and VISA record destruction schedules are
classified or protected by statute and not accessible to the
public, the statutory requirement that the Archivist publish
notice of them in the Federal Register so as to provide the
public an opportunity to obtain them makes absolutely no
sense. Furthermore, this requirement unreasonably delays
approval by the Archivist of NSA and CIA record destruction
schedules since the public is given 60 days to comment on the
notice in the Federal Register. Exempting those agencies that
submit classified record destruction schedules from the
provision requiring notice in the Federal Register of requests
to destroy records would expedite the process of approval of
requests to destroy records and not deprive the public of any
information they would otherwise be entitled to receive. The
unclassified record disposition schedules from any agency are
not exempt from the publication requirements.
Section 402 amends the National Security Act of 1947 to
permit an interlocutory appeal by the United States from any
decision of a united States court or a judge thereof on any
evidentiary ruling or dispositive motion when the Director of
Central Intelligence certifies that the decision being appealed
will have an adverse impact on the national security. Recently,
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the Vnited States has encountered significant problems in
attempting to perfect interlocutory appeals of several court
decisions. The hallmark of these cases is an attempt by the
plaintiffs to force the United States to submit to civil
discovery and a trial on the merits. The Agency has attempted
to narrowly focus the litigation on the pure legal principles
involved and not on the facts of the case, which, in all
likelihood, will be in dispute. Thus, in such cases, the
Agency has filed motions to dismiss or for summary judgment
which deal only with matters of law. In those cases where our
motion has been denied, we must choose between litigating the
case on its merits, or seeking an interlocutory appeal of the
order denying our motion. Litigating the case on its merits is
not an attractive option because these cases frequently involve
the disclosure of classified information in a public forum.
Furthermore, in these cases the Agency has taken the position
that as a matter of law, the Director's authority to take
certain personnel action is not subject to legal challenge and,
by submitting to discovery and trial on the merits, our legal
right not to be tried would be fatally undermined.
Given the difficulty in litigating these cases on the
merits, the Agency has attempted to obtain an interlocutory
appeal of the court decision denying our motion to dismiss.
One way to obtain an interlocutory appeal is if the lower court
certifies that the order involves a controlling question of law
as to which there is a substantial ground for difference of
opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the litigation.
The Court of Appeals may then, in its discretion, permit an
appeal to be taken from such order. See 28 U.S.C. ?1292(b). A
second method for obtaining an interlocutory appeal is by
arguing that the decision of the lower court are collateral
orders appealable under the doctrine of Cohen v. Beneficial
Loan Corportaion, 337 U.S. 541 (1949). That case provides for
.an interlocutory appeal if it can be shown that the order of
the lower court was a final disposition of a claimed right
which is not an ingredient of the cause of action and too
independent of the cause itself to require that appellate
consideration be deferred until the case is adjudicated. The
Agency has attempted to employ this doctrine and the
certification procedure in several cases to obtain an
interlocutory appeal., In one case, the Court of Appeals ruled
that an order. denying a motion made by the Agency to dismiss a
complaint challenging the Director's statutory authority to
terminate employees was not a collateral order under the Cohen
doctrine. In another case, the likelihood of obtaining an
interlocutory appeal under the Cohen doctrine or the
certification process was so small that a decision was made not
to attempt to proceed with an interlocutory appeal.
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.Faced with the possibility of disclosure of classified
information in a public forum through litigation of the
underlying grievance and an inability to obtain an
interlocutory appeal. of the lower court order denying our
motion to dismiss, the Agency has settled such cases for
hundreds of thousands of dollars. Clearly, the U.S. Covernment
should not be put into a position of being forced to settle
cases to avoid the disclosure of classified information,
particularly where there isa likelihood-that an appellate
court would ultimately vindicate the Director's authorities
after the case. had been litigated on the merits in the lower
court.
These problems can be resolved if the United States can
obtain the right to undertake an interlocutory appeal.upon a
certification that the national security justifies such an
appeal. It is not intended, :however, that the right
established by this section in any way affects the role of the
Attorney General in managing the litigation caselcad of the
United States. Additional information regarding this
provision, which cannot be provided in a public document, has
been previously provided to the Senate Select Committee on
Intelligence and the House Permanent Select Committee on
Intelligence.
Section 403 amends the Central Intelligence Agency Act of
1949, the National Security Agency Act of 1959, and Section
1604 of Chapter 83 of title 10, United States Code, to make
clear that CIA,, NSA and DIA can continue to deal with security
problems in the area of drug and alcohol abuse without regard
to the provisions of any other law, rule or regulation. Recent
court decisions, e. ., Whitlock v. Donovan, Civil Action to.
83-3398 (D.D.C. 1984), and rulings by both the Equal Employment
Opportunity Commission and the Merit Systems Protection Board
have suggested that there will be increasing emphasis on
treating alcoholism and alcohol abuse as a handicap protected
under . the, provisions of the Rehabilitation Act of 1973, as
amended, (29 U.S.C. 701 et seq.) which outlaws handicap
discrimination.. See Comprehensive Alcohol Abuse and Alcohol
Prevention Treatment and. Rehabilitation Act of 1970; see also
Ruzek v, GSA,. 7 PSSPB 307. By implication' there will l-7ely be
a similar emphasis on treatment of drug abuse as a handicap
with the same protection (Drug Abuse Office and Treatment Act"
of 1972 and .43 Op. Atty. Gen. 12). This may very well result
in an increased prospect of litigation whenever CIA, NSA or DIA
determine that drug or alcohol abuse requires the denial or
revocation of security approvals, or the denial or loss of
employment. Not only is there concern about the prospects of.
having to litigate these decisions, but there also is a
likelihood that CIA, NSA.and DIA will be forced more and more
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to make accommodations to take into account these "handicaps,"
regardless of the security consequences of continuing to employ
or clear such persons. In order to avoid. these additional
administrative and litigation problems, which could
substantially impair the ability of CIA, NSA and DIP. to carry
out their national security missions and functions, this
amendment would clearly authori.ze CIA, NSA and DIA to deal with
the security implications of alcohol and drug abuse in the same
manner as in the past. Additional information regarding this
provision, which'cannot be provided. in a public document, has
been previously given to the Committees.
SUPPORT FOR DEFENSE INTELLIGENCE
COLLECTION ACTIVITIES
Section 501 adds a new chapter 19 to subtitle A of Title 10,
United States Code, authorizing the establishment and conduct of
corporations or other business entities to provide support for
Department of Defense undercover intelligence collection
activities.
Proposed subsection 391 states that the purpose of proposed
chapter 19 is to provide the SECDEF and the Secretaries of the
Military Departments to establish the statutory authority
commercial covers to support intelligence collection
activities.
Proposed subsection 392a defines a new term "intelligence
collection activities". The use of a new term rather than the
redefining of the term "intelligence activities" precludes the
development of two definitions (E.C. 12333 & statutory) for the
same term.
Proposed subsection 392b defines the term "intelligence
support activities" to mean the establishment, acquisition and
conduct of commercial cover systems and the acquisition of
logistical support thereto as described in subsections'393 and
394.
Proposed. subsection 392c defines a new term, "commercial
cover", which is used throughout the proposed Charter 19 of
this title.'
Proposed subsection 393a authorizes the Secretary of
Defense or the Secretaries of the Military Departments to
establish and conduct commercial covers as commercial
entities.. In making specific reference to. consultation with
the Director of Central Intelligence and the Director of the
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Federal Bureau of Investigation, this subsection is not
intended-in any way to alter or derogate from the
responsibilities and authority of the Chief of Mission to a
foreign country under 22 U.S.C. 3927 for direction,
coordination, and supervision of all U.S. Government employees
in that country (except for employees under the command of a
U.S. area military commanders or from established procedures
for coordination with the Secretary of State in the conduct of
clandestine activities. Subsection 393a further states that
the establishment of a commercial cover requires a finding in
the form of a written certification by the Secretary
responsible for the commercial entity that the commercial cover
is necessary to the conduct of authorized intelligence
collection activities.
Proposed subsection 393b requires that the establishment
and operation of such commercial covers be in accordance with
prevailing commercial practice. Federal statutes that regulate
the establishment and operation of commercial and industrial
type government activities shall not apply to the establishment
and operation of commercial covers conducted pursuant to this
section when there is a written certification by the Secretary
concerned or his designee that compliance with such statutes
would risk compromise of the commercial cover. It is not
intended that the authorities contained in this section will
relieve the Department of Defense from any requirements of
applicable laws. Any exemptions apply only to the operations
of the commercial cover. Commercial covers must of necessity
conform to standard commercial practices. Compliance with
statutory requirements that govern routine-government
procurement and financial transactions would not conform with
such prevailing commercial practices and would flag a
commercial cover entity as being connected with the United
States Government, thus risking the security of the commercial
cover and the underlying intelligence collection activities.
In the past, Congress has exempted the FBI from certain
procurement and financial requirements, e.g., the
Anti-Deficiency Act, 31 U.S.C. 1341, and the Department of
Defense is proposing that similar exemptions be authorized for
intelligence support activities. It is virtually impossible to
foresee and list by citation every statutory requirement that
may be incompatible with intelligence support activities.
Therefore, subsection 393b describes the exemptions
categorically in order to capture and embody all the provisions
that would risk compromising the commercial cover. Such
statutes encompass laws applicable to federal appropriations,
federal property management, federal acquisitions, federal
employment, and government corporations. These categories of
law are defined below.
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"Federal acquisitions" means acquiring real estate, goods
or services for the United States Government. These activities
are principally governed by Titles 41 and 10 of the United
States Code. Title 41 requirements that may be incompatible
with intelligence support activities include:
41 U.S.C. 5 which establishes the requirement to advertise
proposed purchases and proposed contracts for supplies or
services.
41 U.S.C. 35 which requires the inclusion of contract
provisions such as the Walsh-Healey Act representations and
stipulations.
41 U.S.C. 46 and 48c which establish the requirement to
purchase blind-made products.
41 U.S.C. 255 which limits advance payments to contractors.
41 U.S.C. 253 which requires full and open competition.
Title 10 requirements that may be incompatible with
intelligence support activities include:
10 U.S.C. 2207 which prohibits contracting unless the
contract contains specific provisions.
10 U.S.C. 2276 which makes the contractor's books subject
to Government audit.
10 U.S.C. 2301 which prohibits cost-plus-a-percentage-of-
cost contracts. This section also subjects a commercial
cover to small business set-asides. This may conflict with
prevailing commercial practice.
10 U.S.C. 2304 which limits the use of negotiated pro-
curements. Formal advertisement (sealed bids) may not be
consistent with prevailing commercial practice.
10 U.S.C. 2306 which places restrictions on the kinds of
contracting that may be used. These restrictions may
conflict with prevailing commercial practice. This section
also creates a right to examine all books, records, etc. of
the contractor or subcontractor. This may also identify
the intelligence support activity as a U.S. Government
entity.
10 U.S.C. 2307 which prohibits certain advance payments for
property and services. This may conflict with prevailing
commercial practice.
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0 U.S.C. 2313 which creates a right to inspect plants and
audit books of certain contractors and subcontractors.
Such an inspection would identify the contracting agency as
a United States Government entity.
10 U.S.C. 2360 which creates a right for students
contracting with the Government to be entitled to be
considered as employees which may identify the contracting
agency as a United States Government entity.
10 U.S.C. 2381 which requires certain measures for
non-negotiated procurements which will identify the
contracting agency as a United States Government entity
(surety bonds, charges, etc.).
10 U.S.C. 2384 which requires supplies furnished to a
military department to be uniquely marked, which will
identify the contracting agency as a United States
Government entity.
10 U.S.C. 2631 which restricts transportation of supplies
to U.S. Flag Vessels. This may conflict with prevailing
commercial practice.
"Federal property management" means the control and use of
federal real and personal property. These activities are
principally governed by Titles 40 and 10 of the United States
Code. Restrictions that may be incompatible with commercial
covers include:
4C U.S.C. 34 which limits the leasing of space in the
District of Columbia.
40 U.S.C. 33a which establishes restrictions on
construction loans for office buildings by Government
corporations.
40 U.S.C. 129 which establishes limits on a Government
corporation's leasing of buildings in addition to the
limitation on rental rates and prohibits the inclusion, in
any lease, of any provision regarding the repair of real
property.
10 U.S.C. 2662 which requires reporting of certain real
estate transactions to Congress 30 days in advance of the
transaction.
10 U.S.C. 2672 restricts agency authority to acquire an
interest in land to $100,000 or less.
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1C U.S.C. 2676 limits authority to acquire land unless
acquisition is expressly authorized by law.
"Federal employment" means restrictions, rights, duties,
and entitlements flowing from Part III of Title 5 of the united
States Code. The intent of this section is to exclude from the
application of Title 5, United States Code, employees of the
commercial cover who are not federal employees occupying
positions within the commercial cover. The restrictions,
rights, duties, and entitlements that may be incompatible with
prevailing commercial practices include:
5 U.S.C. 3101
employees.
5 U.S.C. 5101
employees and
5 U.S.C. 4101
5 U.S..C. 4301
rating system
et seq. which limits the authority to appoint
et seq. which establishes classes of
prescribes levels of pay for those classes.
et seq. which establishes training programs.
et seq. which-establishes a performance
for employees, including minimum due process.
5 U.S.C. 6101 et seq. which establishes a leave and
attendance system.
5 U.S.C. 7101 et seq. which establishes a system for
adverse actions, including removal.
5 U.S.C. 8101 et seq. which provides for insurance and
other entitlements.
"Government Corporations" means a corporation that is owned
by the Federal Government. While commercial covers are not
Government corporations in the classical sense, they
nonetheless meet definitions set out in 31 U.S.C. 9101(1).
Government corporations are principally governed by Title 31 of
the United States Code. Requirements that pertain to
Government corporations that may be incompatible with
commercial covers include:
31 U.S.C. 9102 which requires that each corporation
established or acquired by an agency be specifically
authorized by Congress.
31 U.S.C. 9103 which requires an annual budget submission
to Congress.
31 U.S.C. 9107 which requires Comptroller General's
approval prior to the consolidation of a corporation's cash.
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g31 U.S.C. 9108 which limits, the obligations that may be.
issued by a Government corporation.
It is intended that commercial covers utilize these
exemptions only to the extent that it is necessary, and that
they be conducted in a manner that is generally consistent with
ordinary commercial practice. Adequate safeguards are provided
in the legislation and the Department's own procedures will
further ensure the proper application of the exemptions and the
appropriate use of funds.
Subsection 393c authorizes the deposit and withdrawal of
appropriated and generated funds in banks and other financial
.institutions.
Subsection 393d requires that all proceeds generated by a
commercial cover that are no longer necessary to offset
necessary and reasonable expenses of.the commercial cover,
revert to the U.S. Treasury as miscellaneous receipts.
Subsection 393e requires that funds resulting from a final
disposition of a commercial cover, after all obligations have
been met, shall be deposited in the United States Treasury as
miscellaneous receipts.
Propcsed subsection 394a grants to the Secretary of Defense
or the Secretaries of the Military Departments, or their
designees, the authority to acquire necessary services,
personalty, fixtures, and realty in order to support a
commercial cover.
Proposed subsection 394b requires that acquisitions made
pursuant to subsection 394a utilize procedures that are
consistent with prevailing commercial practice. The subsection
further provides that such acquisitions shall be exempt from
laws governing federal-acquisitions, federal. appropriations,.
federal property management, and federal employment where the
application of such laws would risk the compromise of the
commercial cover. It is not intended that the authorities
contained in this section will relieve the Department of
Defense. from any requiremen.ts of applicable laws. Any
exemptions apply only to the operations of the commercial
cover. For .a discussion of these laws see the analysis above
pertaining to proposed subsection 393b.
Proposed section 395a requires the Secretary of Defense to
promulgate regulations to ensure oversight, operational
effectiveness, and accountability of all intelligence support
activities undertaken pursuant to this. chapter.
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Proposed subsection 395b requires the Secretary of Defense,
or the Secretaries of the Military Departments to ensure that
an annual review and audit is conducted of each. intelligence
support activity.
Proposed subsection 395c makes it clear that all
intelligence support activities undertaken pursuant to this
chapter are'to be protected from unauthorized disclosure as set
forth in 50. U.G.C.. 403 (d) (3) .
ENHANCED FBI CODUTEPINTELLIGENCE CAPABILITIES
Section 601 would amend the Right to Financial Privacy Act
of 1978 (12 U.S.C. ?3401.et. seq.) by making certain of the
special procedures set forth in Section 3414 mandatory.
ection 3414 currently provides that a Government authority
authorized to.conduct foreign counterintelligence
investigations may obtain financial records from a financial
institution by submitting a certification signed by the
supervisory official of a rank designated by the.head of the
.Government authority. However, Section 3414 does not compel
the financial institution to disclose the requested records.
There have been instances wherein financial institutions have
declined to provide records requested pursuant to Section 3414.
Officials of such institutions have stated that they would
produce the requested records only in response to a subpoena.
Although the current number of refusals is not high, certain
major banks have refused to comply with requests for financial
data. Knowledge that these financial institutions will not
comply with requests for financial data has in some cases
deterred the FBI from making the requests. Thus, as long as
Section 3414 is retained in its current form, the FBI and other
government agencies may face the obstacle of a recalcitrant
financial institution in a foreign counterintelligence
investigation. Enactment of this section will ensure that
government agencies involved in foreign counterintelligence
investigations will have access to financial data relevant to
the particular matter being investigated. Congress will
continue to receive notice concerning use of this authority
through existing reporting provisions as set forth in
12 U.S.C. 3421.
Section 602 provides access by the FBI to telephone
subscriber information and toll billing record information from
a communications common carrier, either at its own behest or on
behalf of other intelligence agencies for authorized
intelligence purposes. The need for this provision.has its
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roots in the difficulties that the FBI. encounters in certain
areas of the country in obtaining. telephone toll record
information pursuant to National Security Letters (NSL).
Pursuant to an agreement reached approximately ten years ago
between the Department of Justice and AT&T, NSL's are utilized
in lieu of subpoenas to obtain telephone toll record information
in foreign counterintelligence investigations. However, State
privacy statutes, as well as court and agency decisions, are
causing certain companies, particularly in California, to
refuse-to honor NSLs. Indeed, decisions of the California
Public Utility Commission (PUC) have resulted in no companies
in California honoring NSLs. This section would make it
mandatory for a communications common carrier to produce
requested telephone. subscriber information pursuant to an P'SL
signed by the Director of FBI or a supervisory official
designated by him. This section also permits other agencies of
the Intelligence Community to request that the FBI obtain
telephone toll records when such requests are made in
accordance with applicable guidelines established by the
Attorney General for conducting counterintelligence
investigations. Finally, the section prohibits the disclosure
of a request for toll record information and authorizes
dissemination of information obtained pursuant to this section
to other agencies within the Intelligence Community.
Section 603 would allow access for the FBI to state and
local criminal records for national security purposes similar
to the relief that.was granted to the CIA., DCD, and OPM in the
Intelligence Authorization Act for FY 86. That Act does not
include the FBI.in its provisions, despite the longstanding
responsibilities of the FBI in the conduct of background
investigations. However, the FBI has also faced difficulties
in recent years in obtaining criminal records information from
state and local agencies for purposes of conducting background
investigations, primarily because of state and local
legislation triggered by, and similar to, the Privacy Act..
'An example of the difficulty in.obtaining criminal history
record information for purposes of conducting a backgrcund
investigation can be found in California. The FBI's California
offices have been precluded from access to the California law
enforcement telecommunication criminal justice information
system for the purpose of conducting background investigations
because the California Department of Justice has interpreted
the State's Freedom of Information/Privacy Acts, which prohibit
use of information developed by law enforcement agencies for
other than law enforcement purposes, to exclude background
investigations from the realm of law enforcement purposes.
Even with a release from the applicant, some information on an
applicant has been withheld.
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Other states have similar laws restricting the use.of
criminal record information for employment purposes. To date
these laws have not been interpreted to preclude FDI access to
the, records for the purpose of conducting background
investigations. There is no guarantee, however, that these
states may not someday take a different position. Because the
FBI.is decentralizing its record keeping practices and state
and.local authorities have become increasingly responsible for
the maintenance and dissemination of their criminal records, a
chance in position by these states to deny the FBI these
records could drastically reduce the ability of the.FBI to
obtain, complete criminal record information for background'
investigations.
To address the current problems and potential concerns
stated above, the FBI.should be added to those agencies
entitled under Section 9101 of Title 5, United States Code,
obtain access to state and local criminal history records.
This will ensure that the FBI can adequately fulfill its
responsibilities in conducting background investigations.
TITLE VII
DOD ADMINISTRATIVE AND PERSONNEL IPA ROVF.MEMTS
Section 701 seeks to extend by two fiscal years the
termination authority of the Secretary of Defense with respect
to the employment of any civilian officer or employee of the
Defense Intelligence Agency (rIA). Subsection 501(a) of the
Intelligence Authorization Act for FY 85, P.L. 98-618,
authorized the Secretary of Defense. to exercise the above
termination authority whenever such an action was consideree by
him to be in the best interests of the United States and he
determined that the termination procedures otherwise authorized
by law could not be "invoked in a manner consistent with the
national security." As enacted, paragraph 1604(e)(1) of
chapter 83 of title.10, United States Code, extended this
authority to the Secretary of Defense for fiscal years 1985 and
1986. The regulations which were subsequently written to
implement this authcrity have been finalized within DIA and
they are now in_ the final stages of coordination within the
Department of Defense. The extension of authority is being
.requested so as to allow DIA an opportunity to have two full
fiscal years of experience under the implementing regulations.
.Then, as the end of the extended time.period draws near, a
determination can be made as to whether the termination
authority should be modified and/or enacted into permanent
authority.
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section 702 clarifies and makes permanent statutory
authority-for the Department of Defense, through the Defense
Mapping Agency (DMA), to conduct mapping activities in foreign
countries. Currently, DMA has 185 international executive
agreements with 75 countries concerning the exchange,
collection, and production of mapping data. Some of these
agreements have been in existence since the early 1940's..
Specifically, these agreements permit (1) the exchange of maps,
charts and other geodesic information, (2) co-production and
collection of mapping data, (3) loan of DMA equipment so that
foreign mapping agencies can produce raw data more efficiently
and accurately, (4) training in equipment use by DZIA of foreign
personnel, and (5) access to foreign countries.
DMA finds it necessary to deal with foreign map agencies to
the extent that overhead systems cannot provide accurate
cartographic data. To fill the gap, DMA will send a team to do
what is required to map that area. However, the cost of
sending U.S. personnel has been prohibitive; it is far less
expensive to use local foreign mapping agencies. When local
mapping personnel are used, the U.S. sends them the specialized
equipment and provides the necessary training as set forth in
the executive agreement.
Therefore, the United States saves a good deal of money by
the use of foreign locals rather than sending United States
persons to do the job. In'the exchange, the united States gets
significant raw mapping data as well as access to the territory
of another sovereignty. Over the years this has been a low
cost, reliable and convenient way for DMA to fulfill its
mission. It should also be emphasized that in many instances
this is the "only" way to get mapping data from foreign
countries. In addition to the substantial savings in using
local foreign personnel, it is estimated that the data and
other materials provided to the United States through such
agreements is valued in excess of $80 million annually.
However, the authority of DMA to engage in such executive
agreements with other countries has been called into question.
Technically, DMA lacks explicit statutory authority to engage
in these agreements. Currently it relies exclusively on
executive Constitutional authority as the basis for such
agreements. But changes in statutory law have introduced an
element of uncertainty in ^l'A's reliance on Constitutional
authority. P.L. 97-113 prohibits no-cost loan of defense (PP'A)
equipment. In addition, both the Arms Export Control Act and
the Foreign Assistance Act require foreign governments to
reimburse the Defense Department for any foreign
training. Neither the cost avoidance of using foreign locals
over United States personnel, nor the $80 million valuation of
data provided by foreign countries is calculated as
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reimbursement. In combination these laws render DrA's
exclusive-reliance on the Constitution as the legal basis for
these international executive agreements somewhat uncertain.
To remedy this uncertainty, D14A seeks limited statutory
authority to continue to exchange mapping data, supplies and
services with foreign countries.
Section 703 provides DIA with authority to pay for
necessary medical evacuations of CIA civilian employees
stationed overseas. Section 501 of the Intelligence
Authorization Act for FY84, P.L. 98-215, authorized
allowances and benefits for certain employees of DIA stationed
overseas comparable to those provided to officers and employees
of the Foreign Service serving overseas. However, the
authority to pay the costs or expenses incurred for a medical
evacuation of a civilian employee when there is no suitable
person or facility in the overseas locality to provide the
necessary medical care was not included in the list of benefits
provided by section 501. This authority was reenacted as
Section 1605 of Title 10 by subsection (a) of Section 1302 of
the Department of Defense Authorization Act, 1986,
P.L. 99-145. This authority is not only currently available to
Foreign Service officers and employees, but also to CIA and 17SA
civilian employees (see section 4 of the CIA Act of 1949, 50
U.S.C. 403(e) and paragraph 9(b)(1) of the rational Security
Agency Act of 1959, 50 U.S.C. 402 note, respectively). while
it is fortunate that there is rarely the need to have such an
authority, DIA has experienced necessary medical evacuations of
its civilian employees stationed overseas. Should similar
circumstances arise in the future, payment for medical
evacuation of DIA civilian employees should be handled on the
same basis as for other civilian intelligence and diplomatic
employees similarly situated.
. Section 704 would permit the use of proceeds from military
counterintelligence operations to offset necessary and
reasonable expenses incurred in such operations. .he current
law (31 U.E.C. 3302) can be interpreted to require that funds
paid by a foreign counterintelligence service to a
counterintelligence double agent must be deposited in the U.S.
Treasury. However, the established practice by
counterintelligence components of the U.S. military has been to
recycle those funds and use them for double agent operations.
An opinion by the General Counsel of the Defense Department
advises that the proceeds from double agent operations should
be paid into the Treasury. Legislation is therefore required
to make clear that money paid by foreign counterintelligence
services to our military counterintelligence double agents can
be used to defray reasonable and necessary operational
expenses. Such usage is important to operational security,
maintenance of agent bona fides, and for compensating double
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agents for. legitimate expenses associated with operational
activity.- Section 706 also will avoid having to use
appropriated funds to pay operational expenses that have
previously been defrayed by using money paid to double agents
by foreign intelligence services.
Such an exemption from 31 U.S.C. 3302 was obtained by
Defense counterintelligence components under section 701 of the
Intelligence Authorization Act for FY 1986. Section 705 merely
restates that provision.
Section 801 authorizes the increase of appropriations
authorized by the Act for salary, pay, retirement, and other
benefits for federal employees as necessary for increases in
such benefits authorized by law.
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INTELLIGENCE AUTHORIZATION ACT FOR
FISCAL YEAR 1967
CHANGES IN EXISTING LAW
NOTE: Where apFlicable, changes in existing law are shown as
fellows: existing law in which no change is proposed
is shown in roman; existing law proposed to be struck
is enclosed in brackets; new material is underscored.
INTELLIGENCE ACTIVITIES
Section 101: No substantive change.
Section 102: No substantive change.
Section 103: No substantive change from Section 103 of the
fiscal year 1986 Act.
INTELLIGENCE COMMUNITY STAFF
Section 201: No substantive change.
Section 202: No substantive change.
Section 203: No substantive change.
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7 TITLE III
CENTRAL INTELLIGENCE AGENCY
RETIREP'?NT AND DISABILITY SYSTEM
Section 301: No substantive change.
ADMINISTRATIVE PROVISIONS RELATED TO
INTELLIGENCE AGENCIES
Section 401: Amends section 3303a of Title 44, United
States Code, by adding at the end thereof the following new
subsection:
(g) The requirement in subsection (a) of this
section that the Archivist provide notice in the Federal
Register of the list and schedule of records proposed for
disposal shall not apply to those list and schedules that
are properly classified pursuant to Executive order 12.356,
or its successor order.
Section 402: Amends the National Security Act of 1947
(50 U.S.C. 401 et seq.) by adding at the end of section 102a
the following new section:
SEC. 102b. In any civil action, suit, or proceeding in
which the United States or any officer, employee or agent
thereof is a party, or in which the United States has an
interest, an interlocutory aE eal may be taken as of right from
a decision of any court of the United States, or a judge
thereof, on.any evidentiary or discovery matters, or
potentially dispositive motions, if the Director of Central
Intelligence in prior consultation with the Attorney General,
makes a written finding t at an evidentiary or discovery matter
will have an adverse effect on- t e national securit . This
finding s all be transmitted to t e Attorney General. In such
cases, appeal may be taken upon application of the -Attorney
General to the appropriate courts of appeals, which s all have
jurisdiction of appeals under this provision, except where
direct review may be had in the Supreme Court. __A stay of of
all proceedings shall e grant-or' pending disposition of the
appeals.
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Section 403: (a) Amends the Central Intelligence Act of
1949 (50 U.S.C. 403a et seq.) by adding at the end of Section
15 the following new section:
SEC. 16. In its discretion, the Agency may, on the grounds
of prior or current alcohol or .drug abuse, deny to or remove
from any individual access to classified information, refuse to
hire any applicant for Agency employment, and terminate,
suspen, or place limitations or conditions on the continued
employment of any Agency employee, notwithstanding any other
provisions of law.
(b) Amends the National Security Agency Act of 1959 (50
U . S .C . 402 note) :
1) by redesignating section 2 as section 2(a) and
2) by adding at the end thereof the following new
subsection:
b) The Secretary of-Defense (Or his designee for
the purpose) may, in his discretion, on the grounds of
prior or current alcohol or drug abuse, deny to or
remove from any individual access to classified
information, refuse to hire any applicant for Agency
employment, and terminate, suspend, or place
limitations or conditions on the continued employment
of any Agency employee, notwithstanding any other
provisions of law.
(c) Section 1604 of chapter 83 of title 10, United States
Code, is amended by adding at the end thereof the following new
subsection:
(f) The Secretary of Defense (or his designee for the
purpose) may, in his discretion, on the grounds of prior or
current alcohol or drug abuse, deny to or remove from any
civilian officer or employee of the Defense Intelligence Agency
access to classified information; refuse to hire any applicant
for employment with the Defense Intelligence Agency; and
terminate, suspend, or place limitations or conditions on the
continued employment of any Defense Intelligence employee
notwithstanding any other provisions of law.
31
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SUPPORT FOR DEFEt1SE INTELLIGENCE COLLECTION ACTIVITIES
Section 501: Amends subtitle(a) of Title 10, United States
Code, by adding the following new chapter after Chapter 18:
CHAPTER 19 - SUPPORT FOR INTELLIGENCE
SEC.
391. Purpose of this chapter.
392. Definition.
393. Authority to conduct commercial cover.
394. Authority to acquire logistic support, su plies, and
services.
395. Oversight.
396. General Provisions.
SEC. 391. Purpose of this chapter.
The purpose of this chapter is to provide clear
authority for the Secretary of Defense or the Secretaries of
the Military Departments to conduct support activities
necessary for authorized and appropriately coordinated
intelligence collection activities of the Department of Defense.
SEC. 392. Definition.
a. "Intelligence collection activities" means the
collection of foreign intelligence or counterintelligence
information by intelligence ccmponents of the Department of
Defense.
b. "Intelligence support activities" means those
activities described in sections 393 and 394, below.
c. "Commercial cover" means a business entity that is
established solely to conceal the role of an intelligence
component of the Department of Defense as it performs
intelligence collection activities.
SEC. 393. Authority to conduct connercial cover.
a. The Secretary of Defense or the Secretaries of the
Military Departments, after consultation with the Director
of Central Intelligence and the Director of the Federal
Pureau of Investigation as appropriate, may establish and
conduct commercial entities such as corporations,
partnerships, sole pro rietaries, an other business
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Entities as-commercial covers to support intelligence
collection activities of the-Department of Defense, as
defined herein. Such commercial entities ma be
established only upon written certification y the
Secretary concerned that commercial cover is necessary to
the conduct of authorized intelli ence collection
act ivities.
b. The establishment and operation of commercial
entities pursuant to this section shall be in accordance
with prevailing commercial practices so long as such
practices are not inconsistent with the purposes of
commercial cover. To this end, laws applicable to federal
appropriations, federal property management, federal
acquisitions, federal employment and government
corporations shall not apply to the establishment and
Aeration o commercia covers upon, t e written
certification by the Secretar concerned or his designee
for t e purpose t at the application of suc laws would
risk the compromise of commercial cover.
c. The Secretary of Defense or the Secretaries of the
Military Departments, or their desi pees, are authorized to
deposit and withdraw funds appropriated for the Department
of Defense used to conduct commercial cover and funds
generated by the business entities authorized by this'
section in banks or other financial institutions.
d. Funds generated by such business entities may be
used to offset necessary and reasonable-expenses incurred
by the commercial cover. As soon as practicable, funds
generated by a commercial cover that are no longer
necessary for the conduct of that commercial cover shall be
deposited in the Treasury of the United States as
miscellaneous recei ts.
e. Upon the liquidation, dissolution, sale, or other
final disposition of a commerical cover established and
conducted under the provisions of this section, the funds,
after obligations are met, shall be deposited in the
Treasury of the United States as miscellaneous receipts.
SEC. 394. Authority to acquire logistic support,
supplies, and services,
a. The Secretary of Defense or the Secretaries of the
Military Departments, or their designees, may acquire any
goods, services, property, buildings, facilities, space,
insurance, licenses and any equipment necessary in order to
ester--- Q t c orm~ a
-- --au~atit a commercial cover.
.
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~ b. Ac iiisitions made under the provisions of this
section are to be made utilizing procedures consistent with
prevailing commercial practice so long as such practices
are not inconsistent with the purposes of the commerical
cover. To this end, laws applicable to federal
acquisitions, federal appropriations, federal pro erty
management, and federal employment shall not apply where
the application of such laws would risk compromise of the
commercial cover.
SEC. 395. General Provisions.
a. The Secretary of Defense shall promulgate
re ulations to ensure oversight, operational effectiveness,
and accounts ility of the intelligence support activities
conducted pursuant to sections 393 and 394 of this title.
b. The Secretary of Defense, or Secretaries of the
Military Departments shall ensure that a ements of the
Department of Defense that undertake intelligence su ort
activities pursuant to this c ha ter conduct an annual
review and audit of such support activities.
c. Intelligence support activities authorized under
this chapter shall be protected pursuant to 50 U.S.C.
403(d)(3).
d. "The table of chapters at the beginning of
subtitle A of such title and at the beginning of Part I of
such subtitle are each amended by inserting after the item
relating to chapter 18 the following new item:
19. Support for Intelligence ......... 391.
TITLE VI - ENHANCED FBI COUNTERINTELLIGENCE
CAPAFILITIES
Section 601(a): Amends Section 1114 (a)(1) of the Right to
Financial Privacy Act of 1978 (12 U.S.C. 3414) by adding the
following new paragraph:
(a)(5) Notwithstanding any provisions of federal, state,
local or foreign law to the contrary, a financial institution,
or officer, employee, or agent of a financial institution,
shall provide access to, and copies of, financial records of a
customer that are responsive to a re uest made by a Government
authority authorized to conduct foreign intelligence or
counterintelligence activities, for purposes of conducting such
activities.
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Section 602 (a): Amends Chapter 33 of title 28 by adding
at the end thereof the following new section:
SEC. 538. Access to Telephone Toll Records
(a) Notwithstanding any provisions of federal,
state, or local law to the contrary,
upon receipt of a certification signed by the Director
of the Federal Bureau of Investigation or a
supervisory official of a rank designated by the
Director, that the Federal Bureau of Investigation is
conducting a foreign counterintelligence investigation
in accordance with applicable guidelines established
by the Attorney General of the United States, a
communications common carrier shall produce ,re uested
telephone subscriber information and toll billing
record information and meets the standards to mark
suc a request as set forth in subsection (a).
(b) Notwithstanding any provisions of federal, state
or local law, at the request of another agency within
the Intelligence Community, as defined in Executive
Order 12333, or successor orders, which request meets
the standards contained in the guidelines referred to
in subsection (a), the Federal Bureau of Investigation
is authorized to request telephone toll record
information when the information is relevant to the
intelligence responsibility of such agency, and a
communications common carrier shall-produce the
requested telephone subscriber information and toll
billing record information.
(c) No officer, employee, or agent of the
communications common carrier shall disclose to an
person that the Federal Bureau of Investigation has
sought or obtained access to the subscriber
information and/or toll billing record information
(d) The Federal Bureau of Investigation is authorized
to disseminate information obtained pursuant to t is
section to other agencies within the Intelligence
Community, as defined in Executive Order 12333 or
successor orders, when the information is relevant to
foreign counterintelligence responsibilities of suc
agency."
(b) The table of contents for chapter 33 of title 28,
United States Code is amended by adding at the end thereof the
following:
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538. Access to Telephone Toll Records.
Section 603(a): Amends Section 9101(b) of Title 5 as
follows:
(1) (b)(1) Upon request by the Department of Defense, the
Office of Personnel management, [or] the Central Intelligence
Agency, or the Federal Eureau of. Investigation, criminal
justice agencies...
(2) (b) (3) (A) Upon request by a State or locality, the
Department of Defense, the Office of Personnel lanagement, [or]
the Central Intelligence Agency, or the Federal Bureau of
Investigation shall enter into an agreement...
(3) (b)(3)(B) When the Department of Defense, the Office
of Personnel '+anagenent, [or] the Central Intelligence Agency,
or the Federal Bureau of Investigation" and a State...
(4) (c.) The Department of Defense, the office of Personnel
Management, [or] the Central Intelligence Agency, and the
Federal Bureau of Investigation, shall not obtain...
(b) Amends Title VIII of the Intelligence
Authorization Act for Fiscal Year 1986 as follows:
Sec. 803(a) Within two years after the date of enactment
of this Act, the Department of Justice, after consultaticn with
the Department of Defense, the Office of Personnel Management,
[and] the Central Intelligence Agency, and the Federal Bureau
of Investigation, shall report...
TITLE VII.- DOD ADMINISTRATIVE AND PERSONNEL
IMPROVEMENTS
Section 701: Amends paragraph 1604(e)(1) of chapter 83 of
title 10, United States Code, as follows:
Sec. 1604.
"(e) (1) Notwithstanding any other provisions of law, the
Secretary of Defense may, during fiscal years [1985 and 1986]
1987 and 1988, terminate the employment of any civilian officer
or employee of the Defense Intelligence Agency whenever he
considers that action to be in the interests of the United
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States and he determines that the procedures prescribed in
other provisions of the law that authorize the termination of
the employment of such officer or employee cannot be invoked in
a manner consistent with the national security. The decisions
of the Secretary under this paragraph are final and may not be
appealed or reviewed outside. the Department of Defense. The
Secretary of Defense shall promptly notify the Permanent Select
Committee on Intelligence of the House of Representatives and
the Select Committee on Intelligence of the Senate whenever
this termination authority is exercised.
Section 702 (a): Amends Chapter 167 of title 10, United
States Code by adding at the end thereof the following new
section:
2795. Exchange of Mapping, Charting and Geodesy
Data with Foreign Nations.
"The Secretary of Defense may subject to the requirements
of Section 112b of Title I of the United States Code and the
regulations promulgated thereunder (22 CFR Part 181), and under
such additional regulations as are deemed appro riate,
authorize the Defense Mapping Agency to exchange or furnish
mapping, charting and geodetic data, supplies or services to a
foreign country or international organization pursuant to an
agreement for the production or exchange of such data.
(b) The table of contents of Chapter 167 of Title 10,
United States Code is amended by adding at the end thereof the
following:
2795. Exchange of Mapping, Charting and Geodesy Data with
Foreign Nations.
Section 703. Amends subsection 1605(a) of chapter 83 of
title 10, United States Code as follows:
Section 192. Benefits for certain employees of the Defense
Intelligence Agency
(a) The Director of the Defense Intelligence Agency, on
behalf of the Secretary. of Defense, may provide to civilian
personnel of the Department of Defense who are United States
nationals, who are assigned to Defense Attache Offices and
Defense Intelligence Agency Liaison Offices outside the United
States, and who are designated by the Secretary of Defense for
the purpose of this subsection, allowances and benefits
comparable to those provided by the Secretary of State to
officers and employees of the Foreign Service under paragraphs
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(2), (3), -(4), (5), (6), (7), (8), and (13) of section 901 and
under sections 903, 705 and 2308 of the Foreign Service Act cf
1960 (22 U.S.C. 4025; 22 U.S.C. 4081 (2), (3), (4), (5), (6),
(7), (8), and (13); 22 U.S.C. 4083; 5 U.S.C. 5924(4).
Section 704(a): No substantive changes.
TITLE VIII - GENERAL PROVISIONS
Section 801: No substantive change
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INTELLIGENCE AUTHORIZATION ACT
FOR FISCAL YEAR 1987
COST ANALYSIS
INTELLIGENCE ACTIVITIES
Section 101: Fiscal year 1987 authorizations are contained
in the. Classified Schedule of Authorizations.
Section 102: Cost analysis not applicable.
Section 103: Cost contingent upon exercise of permissive
authority.
TITLE II
INTELLIGENCE COI24UN'ITY STAFF
Section 201: The fiscal year 1987 authorization is
$22,938,000.00
Section 202: Cost analysis not applicable.
Section 203: Cost analysis not applicable.
TITLE III
CEITTRAL INTELLIGENCE AGENCY
RETIRENTN?T AND DISABILITY SYSTEM
Section 301: The fiscal year'1987 authorization is
$125,800,000.00.
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TITLE IV
ADMINISTRATIVE PROVISIONS RELATED
TO INTELLIGENCE AGENCIES
Section 401: Cost analysis. not applicable.
Section 402: Cost analysis not applicable.
Section 403: Cost analysis not applicable.
SUPPORT FOR DEFENSE INTELLIGENCE ACTIVITIES
Section 501: Enactment of this legislation should not
result in any additional cost to the Department of Defense or
the Federal Government.
TITLE VI - ENHANCED FBI COUNTERINTELLIGENCE
CAPABILITIES
Section 601: Cost analysis not applicable.
Section 602: Cost analysis not applicable.
Section 603: Estimated cost of $40,000.00.
TITLE VII - DOD ADMINISTRATIVE PERSONNEL
IMPROVEMENTS
Section 701: Cost analysis not applicable.
Section 702: Cost analysis not applicable.
Section 703: Cost contingent upon necessity to use
prescribed aut ority.
Section 704: Cost analysis not applicable.
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TITLE VIII - GENERAL PRCVISIONS
Section 801: Cost contingent upon necessity to use
prescribed aut ority.
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