RESPONSE TO CHAIRMAN SSCI'S LETTER DTD 10 AUG 84

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP95B00895R000200060005-3
• Release Decision: RIPPUB
• Original Classification: S
• Document Page Count: 29
• Document Creation Date: December 21, 2016
• Document Release Date: October 31, 2008
• Sequence Number: 5
• Publication Date: August 13, 1984
• Content Type: MEMO

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13 August 1984
MEMORANDUM FOR: General Counsel
FROM: Executive Assistant to the DDCI
SUBJECT: Response to Chairman, SSCI's Letter,
dtd 10 Aug 84 (attached)
The DDCI would like you (OGC in coordination with OLL) to prepare a
response including the following points:
position in the DDO was created to ensure that
ega advice was an integral part of policy formulation in
the DDO.
-- Person in this position reports to the General Counsel as do
all our lawyers.
Nothing legalese, please -- polite but direct and to the point.
STAT
STAT
cc: ExDir (for information)
DDO ( for information)
/5/OLL (for coordination)
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BARRY GOLDWATER, ARIZ., CHAIRMAN
DANIEL PATRICK MOYNIHAN, N.Y.. VICE CHAIRMAN
JAKE GARN. UTAH WALTER 0. HUOOLESTON. KY.
JOHN H. CHAFEE. R 1. JOSEPH R. RIDEN, JR., DEL
RICHARD G. LUGAR. IND. DANIEL K. INOUYE. HAWAII
MALCOLM WALLOP. WYO. PATRICK J. LEAHY. VT.
DAVID DURENBERGER. MINN. LLOYD BENTSEN. TEX.
WILLIAM V. ROTH. JR.. DEL. SAM NUNN. GA.
WILLIAM S. COHEN. MAINE
HOWARD H. BAKER. JR., TENN.. EX OFFICIO
ROBERT C. BYRD. W. VA.. EX OFFICIO
ROBERT R. SIMMONS, STAFF DIRECTOR
GARY J. SCHMITT. MINORITY STAFF DIRECTOR
August 10. 1984
The Honorable William J. Casey
Director of Central Intelligence
Central Intelligence Agency
Washington, D.C. 20505
I "cct:iiv^ F?er!;;try
i -~
Thank you for your letter of Jul 26, 1984, regarding the
appointment of to be Deputy Director of
the CIA's Office of Legis ative Liaison and the reassignment
of to be "Counsel to the Directorate of
Operations."
STAT
STAT
I know that) lhas had prior experience in legisla- STAT
tive liaison work, particularly in connection with Intelligence
Community budget matters. This should prove to be extremely
valuable. I congratulate you on what appears to be an
excellent appointment.
Also, I am pleased with the selection ofl and
am happy to know that he will continue to be involved in the
effort to enact S. 1324, our FOIA bill. has
rendered yeoman service in this area. I know that he is
eminently qualified for his new position. However, this
appointment does give rise to some concerns which I want to
,share with you.
Bill, concern about maintaining a strong Office of General
Counsel at the Agency dates back to the Rockefeller Commission.
I think it is very important that the CIA not create the
perception that the Directorate of operations is seeking to
function without the benefit of legal advice from the
General Counsel. The Committee staff has been assured
informally that the intent is to have report
directly to, and be guided by the legal views of, the
~lnited ~tate,~ senate
SELECT COMMITTEE ON INTELLIGENCE
WASHINGTON, D.C. 205 10
184-
STAT
STAT
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The Honorable William J. Casey
August 10, 1984
Page Two
General Counsel. If this is the case, I see no problem, and I would
only suggest that this crucial relationship be made explicit in any
announcement or comment that the Agency might make on the appointment.
The last thing we need right now is to resurrect an issue that was laid
to resj ars ago.
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1n(d1gncc Agm,
2 6 JUL 1984
The Honorable Barry M. Goldwater
Chairman
Select Committee on Intelli
United States Senate 9ence
Washington, D.C. 20510
Dear Mr. Chairman:
This is to advise you that
Deputy Director of the
been reassi Office .of Le the
fined to be Counsel the DirectotoLiaison, has
Operations. to the Direrate of
The new Deputy Director
Liaison will be of the Office
Chief of urLegislative
the Audit Staff. who is currently the
months tou know,= has been working
some urgentllp the SSCI to craft legislation to p many
problems y needed relief to the CIA provide
Information Act appears under the FOIA, from the
Since the CIA current
I harm asedpears to be well aloe
the other to continue to work With ward enactment,
en concerned
Bill th
committees in both Houses to SSCI and
I understand that al phases of the t see this
Information legislative process.
Act will are still very good that the CIA
Congress, and I a pass before the adjournment of this
uch needed egispareciate your continued support
muchided to l e This letter also beifor this
Chairman Mo is also being for
Sincerely,
Director William J. Casey
of Central Intelligence
/ DCI
EXEC
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1
,
10 August 1984
OLL 84-2730
Mr. Robert R. Sin mx n
Staff Director
Select Committee on Intelligence
United States Senate
Washington, D.C. 20510
Dear Rob:
I gather from continuing conversations between our two staffs
that some ambiguity remains with respect to
assignment and title in the Directorate of Operations.
To attack the issue directly, it does not mean that the DDO
now has his own General Counsel, separate and apart from the Office of
the General Counsel. Official Agency legal opinions can and will
only cane from the Agency's Office of the General Counsel.
Since the mid-1970's, the General Counsel has had one of his
lawyers detailed to the DDO to assist in day-to-day deliberations
and counsel regarding Executive Order guideline implementation,
POIA and Privacy Act responses and the like. As you know, for the
vast several years, was the assigned lawyer.
will take over from) who has been reassigned.
Give grade and experience, we considered it
appropriate to give the title of Counselor to the DDO.
Sincerely,
Charles A. Brig
Distribution:
Orig - Addressee
Director, Office of Legislative Liaison
1 - Clair George, DDO 1 - C/Liaison/OLL
1 - Stan Sporkin, GC 2"- C/Legislation/OLL
1 _ CDO/OGC 1 - OLL Subject
1 - D/OLL Chrono 1 - OLL Chrono
1 - DD/OLL D/OLL:CABriggs;jms (10 Aug 84)
STAT
STAT
STAT
STAT
STAT
STAT
STAT
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10 August 1984
OLL 84-2731
Mr. Thomas K. Latimer
Staff Director
Permanent Select Committee
on Intelligence
House of Representatives
Washington, D.C. 20515
I gather from continuing conversations between our two s fs
that some ambiguity remains with respect to
assignment and title in the Directorate of rations.
To attack the issue directly, it does not mean that the DDO
now has his own General Counsel, separate and apart from the Office of
the General Counsel. Official Agency legal opinions can and will
only came from the Agency's Office of the General Counsel.
Since the mid-1970's, the General Counsel has had one of his
lawyers detailed to the DDO to assist in day-to-day deliberations
and counsel regarding Executive Order guideline implementation,
POIA and Privacy Act restonses and the like. As you know, for the
past several years,
will take over from'
was the assigned lawyer.
who has been reassigned.
Given) (grade and experience, we consider it
appropriate to give him the title of Counselor to the DUO.
Sincerely,
manes, A. tirzggs
Director, Office of Legislative Liaison
STAT
STAT
STAT
STAT
STAT
STAT
Distribution:
Orig - Addressee
1
- C/Liaison/OLL
1
- Clair George, DDO
1
- C/Legislation/OLL
1
- Stan Sporkin, GC
1
- OLL Subject
1
- CDO/OGC
1
- OLL Chrono
STAT
1
-
D/OLL:CABriggs;jms (10 Aug 84)
1
- DD/OLL
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OLL 84-2826
7 August 1984
IQ
198
1~A~G
MEMORANDUM FOR: Director, Office of Legislative Liaison
Deputy Director, Office of Legislative Liaison
Legislation Division
Office of Legislative Liaison
SUBJECT: Legislative Developments in 98th Congress and
Outlooks for 99th Congress
OVERVIEW
The Legislation Division was successful in achieving a
number of legislative objectives in the 98th Congress. The
major legislative initiative of this Office during this
Congress has been the effort to obtain relief for the Agency
from the Freedom of Information Act. We are guardedly
optimistic that we can obtain passage of the FOIA bill during
this legislative session. Even if we fall short of this goal,
we still have made significant progress towards enactment of
this legislation in the 99th Congress. The Division was also
successful in continuing to secure amendments to legislation
which otherwise would have adversely impacted the Intelligence
Community, particularly in the context of the 1984 State
Department Authorization Act. The annual Intelligence
Authorization Acts have continued to be utilized as vehicles
for obtaining enhancements of Agency and Intelligence Community
statutory authorities. Unfortunately, both the 1984 and 1985
Intelligence Authorization Bills became embroiled in a partisan
debate over the Administration's policies in Central America.
In the 99th Congress,
the major issues will include supplemental retirement
legislation, and covert
action in general, and if it does not pass this Congress,
relief from the Freedom of Information Act.
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FOIA RELIEF LEGISLATION
The major legislative initiative of this Office has been
the effort to obtain relief from the FOIA. This effort
actually began several years ago, but it was only during the
past year that major strides were made toward enactment of this
legislation. The first milestone occurred last year when
attorneys from this Office, after intensive negotiations,
reached an agreement in principle with the ACLU over the types
of Agency records that should be exempt from the FOIA and the
limited circumstances under which exempted records would
nevertheless be searched. Senator Goldwater then introduced
legislation which reflected this agreement. A hearing was held
by the SSCI in June of 1983 at which time the DDCI presented
the Agency's case. Following the hearing, the Office prepared
answers to over 100 follow-up questions and participated in the
drafting of the Committee report to accompany the bill.
Attorneys from this office also worked closely with the staff
of the SSCI in modifying certain provisions of the bill to
satisfy the concerns of key Senators on the SSCI. All these
efforts paid off when the SSCI in October unanimously reported
out a modified version of the original Goldwater bill. While
the ACLU did indicate general support for the Goldwater bill,
they promised to attempt to "improve" the bill when it reached
the House. In November the bill was unanimously passed by the
Senate.
In the House, several Congressmen introduced legislation
similar to that which was passed in the Senate. A hearing was
held by the HPSCI in February on these bills, and the DDCI
again made a strong plea for enactment of FOIA relief
legislation. Following the hearing, attorneys from this Office
met with representatives of the ACLU and HPSCI staff in an
effort to reach an agreement over the specific formulation of
the bill and accompanying report. After intensive
negotiations, an agreement was reached and the HPSCI
unanimously reported out an amended bill on 1 May and referred
it to the House Committee on Government Operations for further
consideration. On 10 May, the Executive Director presented the
Agency's case at a hearing on the FOIA relief bill held by the
Subcommittee on Information, Justice and Agriculture of the
House Government Operations Committee. Although the hearing
went well, the Chairman of that Subcommittee, Glenn English,
decided to hold up consideration of our bill because of the
adverse publicity surrounding CIA
and concern that CIA would abuse the authority to
withhold records created by the bill. After meeting with the
DDCI, Congressman English was finally persuaded to take action
on our bill. On 25 July, his Subcommittee recommended full
Committee approval of the bill. Favorable action by the full
Government Operations Committee occurred on 31 July. It is
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expected that the bill will reach the full Houses
consideration during the week of 10 September.
In sending the FOIA relief bill to the House floor,
Congressman English attached an unrelated amendment that could
jeopardize enactment of our bill. This amendment would
prohibit the government from using the Privacy Act to justify
withholding records requested under the FOIA. Since the Agency
has never withheld records pursuant to this justification, this
Agency would not be affected by Congressman English's
amendment. The DOJ, however, has used this argument to withhold
records requested under the FOIA ; they have indicated to us
that they would be willing to torpedo the entire bill, rather
than have the English amendment enacted into law. When the
House version of the FOIA relief bill reaches the Senate, there
is a distinct possibility that Senators sympathetic to the DOJ
position will prevent the bill from being considered under the
unanimous consent procedure of the Senate. Because of the rush
of other business at the end of the Session, this will probably
ensure the death of the FOIA relief bill for this Congress. To
avoid this possibility, it will be necessary for the DCI to
secure agreement from the Attorney General not to seek to kill
the FOIA relief bill. Should such an agreement not be
forthcoming, the option does exist to appeal the issue to the
President.
While this office remains cautiously optimistic on the
prospects of passage of our FOIA relief bill, there is a
possibility that we will fall just short of our goal. If
enactment of this relief legislation does not occur this year,
the Agency will attempt to secure passage in the next
Congress. In view of the bipartisan consensus on the need for
this legislation, there is a strong probability that the Agency
will be successful in the next Congress.
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In the
fall of 1983, Rep. Wyche Fowler introduced three bills that
addressed the subject of congressional oversight of Agency
covert action activities. These bills attempted to establish
more detailed statutory standards that the President must meet
before initiating such activities, and would have provided the
two Intelligence Committees with veto authority with respect to
major covert actions undertaken by the Agency. A broad range
of witnesses testified in opposition to these bills and no
action was taken with respect to these initiatives during this
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INTELLIGENCE AUTHORIZATION ACT
During the 98th Congress, the Agency was successful in
utilizing the annual authorization process as a vehicle for
expanding and improving various Agency and Intelligence
Community authorities.
a) Fiscal Year 1984 Act (P.L. 98-215). The Intelligence
Authorization Act for fiscal year 1984 became law on
9 December 1983. The legislation provided funding for
the design and construction of the new Headquarters
building and authorized appropriations to pay for the
construction of highway improvements associated with
the new building. The legislation also eliminated the
senior military billet allocation problem with respect
to the ICS by providing that the rank and grade of any
senior armed forces officer appointed Director or
Deputy Director of the Intelligence Community Staff
would be in addition to the number and percentage
otherwise authorized for the service of which he is a
member. This legislation also authorized the Agency
to set minimum and maximum age limits for appointment
to operational positions within the Agency. The
legislation contained provisions which expanded the
eligibility for Agency incentive awards to military
detailees and provided increased benefits for certain
DIA personnel.
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addition, the Agency in conference will support the
House provision addressing the Agency's assumption of
the GSA security function since the House bill
provides these protective authorities directly to the
Agency unlike the Senate bill, which requires GSA to
delegate these authorities to CIA prior to their
exercise by Agency personnel. The Agency also will
support the Senate provisions addressing the promotion
of the DCI and DDCI and the increased personnel
administrative authorities provided to DIA. With
respect to the Senate proposal concerning diplomatic
reciprocity and equivalence, the Agency up to this
point has deferred to State Department on this
provision. The State Department has been successful
in seeking an amendment to this provision from the
Senate Foreign Relations Committee which removes the
mandatory requirement for equal numbers in diplomatic
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presence and instead allows the President greater
flexibility in seeking "substantial equivalence" in
the numbers and treatment of U.S. and foreign
diplomatic personnel.
c) Fiscal Year 1986 Bill. Legislation Division just
recently provided both Intellience Community
representatives and internal Agency components with a
copy of the legislative program for the first session
of the 99th Congress and requested comments on this
program and additional proposals for inclusion
therein. The legislative program includes initiatives
which will be pursued primarily in the context of the
1986 Intelligence Authorization Act, although these
same proposals also can be submitted as free-standing
legislation after they receive OMB approval. The
legislative program presently contains a number of
proposals which may become law as part of the 1985
Intelligence Authorization Act, including the
promotion of the Director and the Deputy Director and
increased personnel management authorities for DIA.
Also included in the program are certain long term
initiatives such as Agency relief from FOIA and the
Intelligence Personnel Protection Amendment which may
become law during the current Congress. All the above
initiatives will likely be pursued in the 99th
Congress if they are not enacted during this session.
Certain other proposals addressing domestic relocation
allowances and elimination of penalties for mandatory
retirement of Agency employees prior to age 62 will
have to be reconsidered in light of recently enacted
legislation before a decision is made as to whether to
seek affirmative legislation in these areas. Other
initiatives concerning amendments to the Classified
Information Procedures Act, a proposal to remove
impediments to naturalization of individuals
contributing to the national intelligence mission, and
proposals designed to provide additional criminal and
civil penalties for willful unauthorized disclsoures
of classified information will have to be closely
coordinated within the Administration, particularly
with the Department of Justice, before any decision is
made as to whether to seek the enactment of such
initiatives in the next Congress.
CONGRESSIONAL OVERSIGHT PROCEDURES WITH RESPECT TO AGENCY
COVERT ACTION.
In response to the SSCI's concern over the adequac
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the SSCI proposed that a formal set of
reporting procedures should be drafted which would address
Agency reporting on covert action. An initial draft by the
Committee of these covert action procedures was received by the
Agency on 30 April 1984, and a hearing was held before the full
Committee on this subject on 3 May. The Agency representatives
present at the 3 May hearing stated the Agency's approval for
the substance of these procedures and during the next month a
final draft of these proposals was reached in a series of
negotiations conducted by SSCI and Agency representatives. As
finally agreed to, these procedures describe certain types of
activities undertaken within an already reported finding which
should require additional notification of SSCI. The types of
activities described in the procedures generally relate to
activities which either substantially change the scope of the
covert action program, which have a significant flap potential,
or which require higher level (i.e. Presidential or NSPG)
approval. Also included as part of the SSCI agreement was an
understanding that the Agency would implement internal
procedures which would ensure that a regular and continuing
review of Agency covert actions was undertaken to identify
potentially controversial or otherwise significant actions
which should be reported to the SSCI under these procedures.
After several drafts, these internal procedures have now been
agreed to by OLL, OGC, and the DO and have been forwarded to
the DCI for review. These procedures would establish various
responsibilities in EPS/DO, the General Counsel's office and
this Office to monitor ongoing covert actions and to bring
significant activities to the attention of the DDO and DCI for
a decision as to whether higher level approval should be sought
or the Committee should be briefed concerning such actions.
In addition to the SSCI's covert action reporting
procedures, the Agency received an initial draft of HPSCI's
proposed procedures in this regard on 1 June 1984. An initial
hearing on these procedures scheduled for 6 June 1984 was
cancelled as the Committee decided that these procedures could
be informally negotiated by staff and then transmitted in the
form of a letter addressed to the DCI from Chairman Boland and
Ranking minority member Robinson. A second draft of the HPSCI
procedures was received by the Agency on 21 June, and this
redraft set out a series of examples of activities undertaken
pursuant to an already approved and reported finding which
HPSCI believes should require notice and explanation to the
Committee. The types of activities under the HPSCI proposal
requiring timely notification are essentially the same as those
contained in the SSCI agreement. Comments concerning the HPSCI
procedures have been received from both OGC and DO and a
meeting was held on this subject on 30 July to discuss
recommended revisions. Given the fact that these revisions did
not contain any major substantive modifications in the HPSCI
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procedures, it is hoped that a final HPSCI letter containing an
agreed set of procedures can be agreed to without the need for
any formal document to be issued or signed by HPSCI or the
DCI.
PERSONNEL-RELATED LEGISLATION
Supplemental Retirement Legislation
The Social Security Amendments of 1983 provided that all
federal employees hired after December 31, 1983, will be
covered by the Social Security retirement system. To alleviate
the burden of new federal hires paying into both the Social
Security and the Civil Service retirement systems, the Congress
passed the Federal Employees' Retirement Contribution Temporary
Adjustment Act of 1983 (FERCTA). This act provided that new
federal employees would pay 6% into Social Security and only
1.3% into their Civil Service retirement system. Thus all
federal employees would be treated equally regarding their
retirement contribution level (pre-'84 employees pay 6% to
Civil Service and 1.3% to Medicare). This adjustment is
temporary, however, and expires at the earlier of the enactment
of a new supplemental retirement system for federal employees
or 1 January 1986.
A new federal retirement system has been discussed for some
time. In the 97th Congress, Senator Ted Stevens, Chairman of
the Senate Committee on Governmental Affairs, introduced
legislation to establish a new three tier federal retirement
system covering new federal employees and open to current
federal employees by election. The first tier of this system
was mandatory Social Security coverage for federal employees.
The second tier was a defined contribution plan whereby the
Government would contribute a fixed amount based on the
employee's salary. The third tier was a voluntary thrift plan
in which the employee could contribute any amount and the
Government would match that amount 100% up to 3% of salary.
This bill was not enacted in the 97th Congress but has served
as a prototype for the supplemental retirement system
anticipated under the FERCTA.
Senator Stevens and Chairman Ford, of the House Post Office
and Civil Service Committee, have taken the lead in formulating
the supplemental retirement system in the 98th Congress. The
current thinking is that the supplemental retirement system
will consist of a three tier system with Social Security, a
defined benefits plan and a thrift plan. The Cost of Living
Allowances (COLA) and the normal retirement age have yet to be
resolved. It is possible that the new system will accommodate
the early retirement needs of 'special pay' category employees
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(law enforcement, firefighters, CIA, and Foreign Service
personnel) at little or no additional cost. Present
indications are that this additional cost, if any, for early
retirement would most likely be half-COLA's for the employee
from retirement to age 62 (Social Security eligibility
date).
While it is clear that no supplemental retirement
legislation will pass this year, we should be prepared next
year to work for a supplemental retirement package that will
meet the needs of the CIA in recruiting and retaining a high
calibre, young workforce. Chairman Ford plans to hold hearings
in February or March of 1985 concerning the recruitment and
retention problems agencies will face under the new retirement
system. We can be sure that the Director will be asked to
testify at these hearings.
Domestic Relocation Legislation
Senator Warner and Representative Wolf sponsored an
amendment to the 1983 Continuing Resolution to increase the
domestic relocation benefits available to civilian federal
employees. This Warner/Wolf domestic relocation amendment
increased the maximum weight for shipment of household goods,
doubled the time during which a temporary quarters allowance
may be provided, and increased the reimbursable amount for the
expenses of the sale or purchase of a residence. In addition
to these enhancements of existing relocation entitlements, the
Warner/Wolf amendment added two new entitlements: income taxes
reimbursement and commercial relocation services.
Our office has worked with the Office of Personnel to
assist the General Services Administration (GSA) in the
promulgation of implementing regulations that will permit
maximum benefit to the Agency. GSA has already implemented the
enhancements to existing relocation entitlements, but has not
yet issued regulations implementing the new benefits. After
GSA issues its regulations implementing the new tax
reimbursement and relocation services provisions, the Agency
will review the adequacy of the improvements made by the
Warner/Wolf legislation and may decide to seek separate
legislative or administrative relief to solve the Agency's
Former Spouse Legislation
The CIA Spouses' Retirement Equity Act of 1982 provided
benefits to former spouses of CIARDS participants who were
divorced after the effective date of that act, 15 November
1982. Legislation was recently introduced that would extend
benefits to qualified former spouses divorced prior to the
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effective date of that act. This legislation, H.R. 5805, was
introduced by Congressman Romano L. Mazzoli and was referred to
the House Permanent Select Committee on Intelligence (HPSCI).
Hearings on H.R. 5805 are scheduled for 12 September 1984. The
Agency has been asked to provide a witness
H.R. 5805 would provide a prescribed lifetime annual
benefit of approximately $7,400 to qualifying former spouses
that would be payable from Treasury funds. A qualifying former
spouse is one who has been married to a CIA officer for not
less than 10 years during periods of service by the officer
with the Agency, at least five years of which were spent
outside the U.S. by both the employee and the former spouse.
If the former spouse remarries before age 60, the annuity would
cease until the remarriage is terminated by death or divorce.
A former spouse would not be eligible for benefits if a lump
sum payment had been paid unless the former spouse returns such
payment.
H.R. 5805 would also enable qualified former spouses of CIA
employees to participate in the Federal Employees Health
Benefits Program (FEHBP). Such individuals would be given the
opportunity to enroll in a health plan provided they pay an
amount equal to the sum of the employee and Government
contributions to the FEHBP fund.
In addition to H.R. 5805, legislation also has been
introduced in Congress that would extend benefits to former
spouses of employees under the Civil Service retirement
system. S. 1930/H.R. 2300 (Durenberger/Schroeder) and S. 2821
(Mathias) would provide only a survivor benefit to the former
spouse of a Civil Service employee. S. 2821 also would permit
former spouses to join FEHBP if they contribute the full
subscription rate. Hearings on S. 2821 are scheduled for
1 August 1984. Although the Agency has not been requested to
participate in these hearings, we have contributed our views to
the Administration's position (i.e. the Office of Personnel
Management's position) on these bills and will continue to
monitor their progress.
It is unlikely that there will be significant progress on
H.R. 5805, S. 1930/H.R. 2300 or S. 2821 during this Congress.
However, due to the persistency of this issue and the lobbying
of affected former spouses, we can be sure that similar
legislation will move forward in the next Congress. 25X1
Intelligence Personnel Protection Legislation
Our major initiative in this area is S. 779, the
"Intelligence Personnel Protection Act." This bill would amend
18 U.S.C 51114 to include probation officers and intelligence
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personnel within the scope of the general federal law
criminalizing the manslaughter of federal officers. S. 779 was
introduced by Senator Biden on 11 March 1983 and was referred
to the Committee on the Judiciary. The Senate Judiciary
reported S. 779 favorably on 19 October 1983, and the Senate
considered and passed S. 779 on 18 November 1983.
In the House, S. 779 was referred to the Subcommittee on
Criminal Justice of the House Judiciary Committee. Hearings
were held on S. 779 as well as two other bills in March of
1984. Director of
the Intelligence Community Staff, spoke on behalf of the
Intelligence Community at these hearings.
In addition to S. 779, two other bills are pending before
the House Judiciary Committee that contain language that would
protect intelligence personnel. Parts G and K of Title X of
S. 1762 would amend the federal criminal laws to protect not
only intelligence personnel, but also their families. H.R.
5150, the Federal Officials Protection Act of 1984, would
provide similar protection for intelligence personnel but would
also require a major restructuring of the relevant provisions
of Title 18.
It is difficult to predict whether the House Judiciary
Committee, not to mention the House, will act upon any of these
three pieces of legislation before the end of this Congress.
Our best hope is that they will pass S. 779 or amend S. 779 in
the nature of a substitute with the text of H.R. 5150. In this
way we could enhance our chances of passage of favorable
legislation this year.
Federal Employee Health Benefits Program
Several bills were introduced in this Congress with the aim
of modifying the Federal Employees Health Benefits Program
.(FEHBP). These bills were introduced in part to respond to the
complaints of insurance companies that the present FEHBP
premium contributions were inadequate to cover the benefits
provided. A listing of the major FEHBP bills introduced in the
98th Congress:
S. 537 (Nunn) -- liberalizes rules on transferring between
health plans to enhance competition;
S. 1685 (Durenberger) -- modifies benefit levels for
government-wide plans and indexes Government contribution
to the CPI for Medical Costs;
S. 2027 (Stevens) -- modifies benefits and types of plans
offered, and increases government contribution to 70%;
25X1
25X1
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H.R. 656 (Dakar) -- extends coverage and increases
Government contribution rate to 75%; and
H.R. 3798/S. 2252 (Dannenmeyer/Hatch) -- institutes the OPM
voucher system for reimbursing federal employees to join
any State-licensed health plan.
Several of these bills involved modifications to the audit
and review standards of health plans. Consequently, our
interest in these bills involved not only the level of benefits
provided to Agency employees, but also the ability of Agency
employees to participate in these plans consistent with the
requirements of cover and security. As a result of these audit
and review modifications, the Office of Personnel began
exploring the option of withdrawing the Agency's health plan
from the FEHBP and administering an internal health benefit
program in its place.
Passage of FEHBP legislation during this Congress is
unlikely. Apparently as a result of improved OPM
administration of existing plans, insurance companies have
withdrawn their pressure for modification of the present
FEHBP. It is quite possible that this issue will not arise
again in the 99th Congress, although activity in this area
could result as a spin-off from Congressional interest in the
federal retirement area.
PREPUBLICATION REVIEW AND POLYGRAPH USAGE BY THE GOVERNMENT
National Security Decision Directive 84 was issued in March
of 1983 by President Reagan and directed Executive Branch
agencies to take certain steps to more effectively prevent the
unauthorized disclosure of classified information. Two of the
requirements contained in NSDD-84 concerning the expanded use
of secrecy agreements to require individuals provided with
access to classified information to agree to a prepublication
review of subsequent writings, and the increased use of
polygraph examinations in the investigation of unauthorized
leak cases, proved to be controversial and attracted
considerable Congressional attention. Hearings on the need for
and effects of NSDD-84 were held before the Senate Committee on
Governmental Affairs and the House Government Operations'
Subcommittee on Legislation and National Security in the fall
of 1983. In addition, an open joint hearing on the related
subject of unauthorized leaks was held before the House
Judiciary Civil and Constitutional Rights Subcommittee and the
Subcommittee on Civil Service of the House Post Office and
Civil Service Committee in the spring of 1983. An additional
joint closed session on this same subject was held before these
two committees in February of 1984
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To ensure that Congress had an adequate opportunity to
consider and respond to NSDD-84, Congress undertook certain
actions designed to delay the implementation of the above two
provisions contained in NSDD-84. The 1984 DOD Authorization
Act included a provision which limited the use of the polygraph
at DOD until 15 April 1984 to that use permitted by regulation
of the Department in effect as of 5 August 1982. A limited
exemption from this provision was provided for the National
Security Agency. The Act also required the Senate Committee on
Arms Services and the Senate Select Committee on Intelligence
to hold hearings on this subject of polygraph use in the DOD
prior to the above 15 April 1984 date. In addition, the 1984
State Department Authorization Act contained a provision which
prohibited any government agency, before 15 April 1984, from
enforcing or issuing any rule or regulation relating to
prepublication review which differed from any rule or
regulation in effect on 1 March 1983. The intention of both of
these limitations was to restore the status quo that existed
before NSDD-84, so that Congress could adequately study the
purpose and effect of these new provisions and considpr r
actions that might be required in this regard.
In addition to the above provisions temporarily delaying
the implementation of the polygraph and prepublication review
provisions contained in NSDD-84, Chairman Brooks of the
Legislation and National Security Subcommittee of the
Committee on Government Operations, introduced H.R. 4681, the
'Federal Polygraph Limitation and Anti-Censorship Act of 1984"
in January of 1984. This bill would permanently restrict the
government's use of prepublication review and polygraph
examinations by providing that, with the exception of CIA and
NSA, federal agencies may not require employees to take
polygraph examinations except on a voluntary basis as part of a
specific investigation into alleged criminal conduct, may not
require employees (except at CIA and NSA) to enter into
prepublication review agreements, and are required to rescind
any such agreements (except at CIA and NSA) entered into prior
to the effective date of this legislation. H.R. 4681 was
referred to Representative Schroeder's Subcommittee on Civil
Service of the Committee on Post Office and Civil Service.
Negotiations were entered into during the spring and summer of
1984 between this Subcommittee, HPSCI and concerned federal
agencies in an attempt to reach a compromise that would broaden
the exemption provided only to NSA and CIA in the bill. While
certain amendments to the original Brooks bill were agreed to
by Representative Schroeder and were incorporated into her own
bill (H.R. 5866) on this subject, the Schroeder amendment did
not contain any real substantive differences from the original
Brooks bill or otherwise expand the limited exemption afforded
NSA and CIA in that bill. The House Committee on Post Office
and Civil Service on 27 June 1984 marked up H.R. 4681,
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substituting Rep. Schroeder's amendment (H.R. 5866) for the
original Brooks bill and reporting this amended bill out of
Committee without any further revision or changes. Both the
HPSCI and the House Armed Services Committee have requested
sequential referral of this bill. After the Post Office and
Civil Service Committee prepares and issues its report on
H.R. 4681, HPSCI has requested 20 legislative days in which to
consider the bill. Given the length of time that the
preparation of this report and the subsequent referral of the
bill to HPSCI and HASC will entail, floor consideration of the
bill by the entire House is possible but its passage this
session by both Houses is very unlikely.
With respect to the outlook in the next session for
H.R. 4681 and similar bills, the Administration has indicated
to Rep. Schroeder in a 20 March 1984 letter that it wishes to
work cooperatively with Congress to develop a mutually
acceptable solution to the problem raised by the controversial
provisions contained in NSDD-84. Mr. McFarlane in this letter
assured Rep. Schroeder that neither the prepublication review
nor polygraph provisions will be reinstated during the current
session of Congress, and that Congress will be notified at
least 90 days in advance of any plans to revive these
provisions in the next session. Given the fact that both the
House Committee on Government Operations and the Senate
Committee on Governmental Affairs have held hearings and issued
critical reports on the utility and efficacy of prepublication
review and polygraph usage, it can be expected that Rep. Brooks
and Senator Mathias will introduce measures similar to H.R 4681
early in the next session of Congress. Rep. Brooks has
repeatedly indicated that he does not view the temporary
withdrawal of NSDD-84 as definitively addressing his basic
concern that any Government use of polygraph and prepublication
review is improper and intolerable. Given the breadth of the
government's current use of these two tools, Rep. Brooks will
certainly seek a permanent prohibition on their use similar to
that contained in H.R. 4681 in the next Congress.
On the positive side, the Agency participated in an
extremely successful hearing on the subject of polygraph usage
by the Intelligence Community before the SSCI, and has
generated considerable support among SSCI members for its
current polygraph program. HPSCI's support for the
Intelligence Community's use of these two tools is divided
along party lines. The HPSCI minority is very supportive of
the Intelligence Community and of preserving the status quo
with respect to the use of these two tools. The HPSCI
majority, on the other hand, will likely support the Brooks
bill limitations on prepublication review and will expand the
exception for polygraph use only to DOD, FEMA, and State
Department for a limited number of individuals and a two year
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period. There is a possibility that HPSCI may hold hearings on
the subject of polygraph usage sometime in the next few months
to more sharply crystallize its position on these issues. Our
efforts next Congress should be devoted to enlisting the
support of our oversight committees to effectively contain the
Brooks bill and similar initiatives which attempt to further
limit prepublication review and polygraph usage by the federal
government.
NARCOTICS
Concern has been expressed in Congress that there has been
insufficient coordination among Federal agencies involved in
detecting and apprehending drug traffickers. This concern has
led to the introduction of several bills which would create a
so called "Drug Czar", who would coordinate the narcotic
activities of various Federal agencies. Last February, the
Senate passed a bill, introduced by Senator Biden, that would
make the Attorney General the "Drug Czar." Although the White
House has opposed the concept of a Drug Czar, and in fact
vetoed a similar bill last year, the Department of Justice has
supported Senator Biden's bill because the Attorney General
would be the "Drug Czar." The DDCI has gone on record with OMB
and the DOJ as opposing the Senate Bill because it could
seriously and adversely affect (1) the DCI's responsibilities
to protect intelligence sources and methods, (2) his
responsibilities in connection with the Intelligence Community
budget and (3) his equities regarding the assignment of
Intelligence Community personnel. In response, the DOJ has
stated that they do not share our concerns and that they object
to attempts by the Agency to modify the bill to alleviate
Agency concerns. Since the prospect for enactment of the Biden
bill in the House appears to be poor at the moment, the Agency
has deferred attempting to amend the bill. However, should the
Biden bill begin to move in the House, the Agency may have to
raise its concerns directly with the Attorney General or the
President. In the meantime, this Office and OGC intend to
continue to negotiate with the DOJ in an attempt to reach an
Administration position that will accommodate intelligence
concerns.
TERRORISM
The Administration recently transmitted to Congress four
legislative proposals designed to combat international
terrorism. This Office reviewed these proposals prior to their
transmittal to Congress and suggested several changes needed to
protect Agency equities. These changes were incorporated into
the legislative package sent to the Hill. A fifth proposal,
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which would have imposed criminal penalties for conspiring to
murder, kidnap, or maim an individual outside of the United
States, was never sent to the Hill. This proposal was dropped
after this Office and OGC pointed out that paramilitary covert
actions sometimes result in personal injury of the type
addressed in the Administration proposal. Prospects for
enactment of three of the Administration's proposals during the
remainder of this Congress are fair. These proposals would
implement the international conventions against hostage taking
and airplane hijacking and sabotage, and would establish a
reward for individuals providing information on terrorist
activities. The fourth proposal, which would impose criminal
penalties on individuals who provide material assistance to
governments engaged in international terrorism, is
controversial, and prospects for enactment of this proposal
during the remainder of this Congress are dim. If President
Reagan is re-elected, this proposal on aid to governments
engaged in state sponsored terrorism will be resubmitted next
year.
EXPORT ADMINISTRATION ACT OF 1984
The Export Administration Act (EAA), which controls the
export of U.S. high technology items, is up for renewal. Both
the House and the Senate have passed different versions, and a
House-Senate conference committee is currently trying to
resolve those differences. The House bill would remove
national security controls on the export of goods to western
nations and thus greatly weaken the U.S. Government's ability
to stem the tide of high technology items reaching the Soviet
Union. The Senate bill would maintain national security
controls and that bill is favored by the Administration. This
Office and the Technology Transfer Assessment Center (TTAC)
have worked closely with the DOD and with the minority staff on
the House Foreign Affairs Committee in an attempt to convince
the House of the wisdom of maintaining national security
controls on the export of goods to western countries.
Particular emphasis has been given to the role the Soviets
play in the diversion of western technology to the Soviet
Union. As of this point, it is doubtful that the House-Senate
Conference Committee will be able to reach an agreement. If no
agreement is reached, the Congress will probably extend the
expiration date of the current law and any amendments to the
Export Administration Act 1 have to wait until the next wi~
Congress.
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WIRETAPPING LEGISLATION
In the wake of press reports that USIA Director Charles Z.
Wick had frequently recorded his phone conversations without
the knowledge of the caller, several bills, known as "Wick
bills," were introduced to prohibit this practice. All but one
of these bills sought to criminalize the recording or
monitoring of telephone conversations without the consent of
all parties to the conversation except in limited situations.
Although these bills do contain exemptions for certain
intelligence activities, these exemptions do not go far enough
to cover the range of CIA activities that are currently
permitted by law. Because of the obvious risk to Agency
equities and personnel, our office has been working with OGC,
other members of the Intelligence Community and the Department
of Justice (DOJ) to ensure that all intelligence activities are
adequately protected.
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Senators Bumpers and Metzenbaum first attempted to have a
Wick bill added as an amendment to the Comprehensive Crime
Control Act of 1983 (S. 1762). Working with the National
Security Agency (NSA) and DOJ, we expressed the Intelligence
Community's objections to this amendment via the Senate Select
Committee on Intelligence (SSCI). In part as a result of these
efforts as well as the obvious political character of the
amendment, the Metzenbaum/Bumpers amendment was defeated on the
Senate floor.
Following this amendment attempt, five free-standing Wick
bills were introduced. Hearings have been held on three of the
five bills: S. 2669 (Metzenbaum), H.R. 4620 (Brooks), and
H.R. 4826 (Conyers). The Brooks and Conyers bills have been
reported from committee. In each case, the views of the CIA
and the Intelligence Community in opposition to these bills
have been provided to the relevant committees. In the case of
the Brooks bill (H.R. 4620), our office worked with NSA to
obtain an Intelligence Community "fix." Following the hearings
on the Brooks bill, however, DOJ successfully urged that the
Administration prevent individual agencies from proposing
legislative solutions to specific defects in these bills. This
position reflects the desire to thwart passage of any Wick bill
by ensuring that major defects remain in these bills.
To date, none of these bills has reached the House or
Senate floors. However, H.R. 4826, which was reported from
House Judiciary in the "clean bill" H.R. 5873, is pending
before the House Rules Committee where it may obtain a rule and
reach the House floor this session. As noted above, our office
has not attempted to amend the current exemption provided in
the bill for individuals "engaged in foreign intelligence or
counterintelligence work" so as to expand that exemption to
ensure protection of all authorized intelligence activities.
Consequently, we are working closely with staffers on HPSCI and
House Judiciary to monitor H.R. 5873's progress. Our goal is
to ensure that H.R. 5873 receives an open rule, if it should
proceed that far in the House Rules Committee. An open rule
would permit us to offer an Intelligence Community amendment on
the House floor. In all likelihood, H.R. 5873 will not obtain
a rule from House Rules during this Congress and will die in
that committee.
Our prognosis is that no Wick bills will be enacted during
this Congress. Depending on the political climate after the
November elections, it is quite possible that no new Wick
legislation will be introduced in the 99th Congress.
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FEDERAL PROCUREMENT LEGISLATION
During the 98th Congress, the Administration proposed a
major legislative package to reauthorize the Office of Federal
Procurement Policy (OFPP) and to enhance competition in
civilian and military procurement. Initially, the Agency
objected to the submission of this package to Congress because
the modifications proposed in these bills appeared to impinge
upon the special procurement authorities of the CIA (50 U.S.C.
403c & 403j). In a letter to the General Counsel dated 14 July
1982, the Administrator of OFPP1 Donald E. Sowle, responded to
the Agency's objections and assured him that none of the three
bills would have a detrimental impact upon the Agency's special
procurement authorities. Following this assurance, the Agency
dropped its objections to the submission of these bills.
All three of these bills have now been enacted into law.
S. 1001, the OFPP Reauthorization Act, provided authority for
the continued activities of OFPP to standardize Government
procurement practices. Included in this reauthorization bill
was authority for the Administrator of OFPP to review and
modify individual agency procurement regulations. Based upon
our earlier understanding with OFPP as well as a legal
interpretation of the scope of this authority, the Agency did
not oppose this aspect of the legislation. Nonetheless, during
debate on the bill, our office did arrange for the insertion of
a floor colloquy that makes clear that OFPP's authority is not
intended to derogate from the DCI's authorities
The two administration bills proposing the modification of
the civilian and military procurement statutes were combined
into the "Competition in Contracting Act of 19830, S. 338.
This bill was enacted as an amendment to the "Tax Reform and
Spending Reduction Act of 1984," H.R. 4170.
The enactment of these major procurement bills indicates
that this area should be relatively quiet during the 99th
Congress. However, given the Congressional propensity to
attack Government procurement practices, we can still expect
some procurement legislation next year that could affect Agency
equities. Consequently, procurement legislation will require
continued careful monitoring during the 99th Congress.
LANDSAT COMMERCIALIZATION LEGISLATION
Intelligence Community interests were successfully
represented during the negotiation of the bill to authorize the
commercialization of the land remote-sensing satellite system
(LANDSAT). Originally, the Administration desired to sell the
Landsat and meteorological satellite systems. However,
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Congress disapproved of this and indicated it would only permit
the commercialization of Landsat. Several bills were
introduced and proceeded through committee. Intelligence
Community concerns with these bills centered on the fact that
the bills failed to clearly indicate that the Department of
Defense, and not the Department of Commerce, was responsible
for the determination of those contract conditions necessary to
ensure the national security. After extensive correspondence
with the respective committees, our office, working with OGC
and the COMIREX staff, succeeded in having suitable language
inserted in the conference version of the final Landsat bill,
H.R. 5155.
STATE DEPARTMENT AUTHORIZATION, FISCAL YEAR 1984
Senators Hawkins and Percy proposed their "Diplomacy
Against Drugs" amendment that would require the cessation of
U.S. assistance of any kind whatsoever to any nation that
failed to meet projected reductions in narcotics production.
Our office worked with the Department of State to achieve the
substitution of milder language in lieu of the Hawkins/Percy
amendment. Additionally, our office succeeded in having
inserted into this amendment an exemption for authorized
intelligence activities.
Finally, Senator Mathias proposed an amendment freezing
implementation of the prepublication review requirements of
National Security Decision Directive 84 to that practice in
place at agencies as of 1 March 1983. This freeze would last
until 15 April 1984 to give Congress time to study the purpose
and effect of these new provisions. Agency representatives,
together with representatives from DOJ and NSC, met with staff
members for Senator Mathias and attempted to persuade them to
limit the duration and scope of the amendment. Despite these
efforts, this amendment was agreed to and passed as part of the
State Authorization Act.
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NATIONAL ARCHIVES
Legislation was introduced again in the 98th Congress to
separate the National Archives and Records Service (NARS) from
the General Services Administration (GSA) and make it an
independent agency. Bills were introduced in both Houses. We
had no objection to S. 905, but the House version, H.R. 3987,
had one provision which concerned us. This provision would
allow access to, and examination of, agency material for the
purpose of determining whether it constituted a record. We
wanted language to preserve the DCI's authority to protect
sensitive information involving intelligence sources and
methods. We stated our concern and provided amendments to
resolve this problem in a views letter to Rep. Jack Brooks,
Chairman, House Government Operations Committee, submitted to
the Office of Management and Budget for clearance in April
1984. OMB informed us in late April that our views letter was
not being cleared for transmittal to Chairman Brooks since the
Administration was opposed to both bills and wanted to clear
only those views letters stating complete opposition to the
legislation.
Subsequently, the Administration changed its position on
the Senate bill, S. 905, and expressed its intention to support
the legislation provided certain amendments were made. S. 905
passed the Senate on 21 June 1984.
Meanwhile, this Office was working informally with the
Minority Counsel of House Government Operations, John Parisi,
regarding our concerns. Mr. Parisi agreed with our proposed
amendments and said he would work for them with the majority
staff. We also informed HPSCI staff of our concerns and they
worked with us on another possible amendment. Mr. Parisi
informed us yesterday (July 31) that the majority staff has
agreed to part of our proposed amendment. After discussions
with HPSCI staff, OGC, and Records Management Division in the
DDA, as well as the General Counsel, DIA and Legislative
Counsel, NSA, it was agreed that acceptance of this portion of
our amendment was sufficient to meet the concerns we had. This
amendment was part of a package of technical amendments offered
by Chairman Brooks when the bill came up for House floor
consideration late on 2 August. The amendments were adopted
and the bill was passed. House proponents were willing to make
various concessions in hopes that the Senate will accept a
modified House version and thus avoid a conference.
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