S. 2008

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP77M00144R000800040012-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 5
• Document Creation Date: December 15, 2016
• Document Release Date: November 18, 2003
• Sequence Number: 12
• Content Type: MEMO

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1. In its present form, S. 2008 raises two problems for the Central
Intelligence Agency. First, it could impinge upon the Agency's primary
statutory responsibility of collecting, evaluating and disseminating foreign
intelligence information. Second, it may not provide fully enough for the
personnel security requirements imposed on the Agency by statute and
Executive Order.
II. First Problem
The Central Intelligence Agency is not a criminal justice agency.
Under S. 2008, the Agency would be confronted, as a non-criminal justice
agency, with limitations which could impinge upon its essential responsi-
bility by barring Agency access to important foreign intelligence information.
1. The Central Intelligence Agency's scope of authority is limited to
foreign intelligence matters. It is definitely not a "criminal justice agency,"
nor is it involved in the "administration of criminal justice" or other criminal
justice activity. Section 102(d)(3) of the National Security Act of 1947 provides:
"...That the Agency shall have no police, subpoena, law
enforcement powers, or internal security functions..."
2. The dissemination of foreign intelligence information is a principle
statutory function of the Central Intelligence Agency. Section 102 (d) (3)
of the National Security Act of 1947 imposes on the Agency a duty
" ... to correlate and evaluate intelligence relating to
the national security, and provide for the appropriate
dissemination of such intelligence within the Government
using where appropriate existing agencies and facilities. .
.
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Moreover, Section 102(e) of that Act provides:
"...To the extent recommended by the National Security
Council and approved by the President, such intelligence
of the departments and agencies of the Government .. .
relating to the national security shall be open to the inspec-
tion of the Director of Central Intelligence, and such intel-
ligence as relates to the national security and is possessed
by such departments and other agencies of the Government .. .
shall be made available to the Director of Central Intelligence
for correlation, evaluation, and dissemination..."
If one thing is clear from the legislative history and the statutes surrounding
the creation of the Central Intelligence Agency, it is that all foreign intel-
ligence information available to the United States Government should be made
available to, and correlated by, one central foreign intelligence authority.
3. Foreign intelligence information is any information of significance
concerning foreign areas, developments, or personalities. From time to
time, it may include information on foreign personalities or events relating
to criminal conduct, such as information on foreign terrorist organizations,
international narcotics traffickers, or biographic information on foreign.
personalities. Such foreign intelligence information could fall within the
definition of "criminal justice information," "criminal justice investigative
information," or "criminal justice intelligence information," since the sections
of S. 2008 which define these three categories are not limited to the domestic
sphere but could be read to include information from foreign sources, concern-
ing foreign citizens, and relating to conduct made criminal under foreign
laws. By so broadly defining these categories of information and by restricting
access to and use of such information to criminal justice agencies and purposes,
S. 2008 cuts across the legitimate foreign intelligence interests of the Central
Intelligence Agency. The restrictions of Sections 102(b), 201, and 205 could
preclude the Agency from receiving or using information held by a foreign
or domestic agency concerning appropriate subjects of foreign intelligence
interests, or from disseminating this foreign intelligence information to
appropriate recipients.
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STAT
EXAMPLE: The Agency plays a large role in monitoring the
activities of foreign terrorist groups. This bill could preclude the
Agency from collecting information on foreign terrorists either from
domestic or foreign agencies. (Hypothetical: A Middle East liaison
service confidentially offers the Agency criminal history record
information pertaining to foreign individuals involved in terrorist
activities, )
EXAMPLE: The Agency could be prevented from studying the
dissident movement in the Soviet Union and the labor camp system
because the Agency could not collect, maintain, use or disseminate
facts pertaining to the arrest, detention, release, etc . , of key figures
in that movement.
The problem of impairing foreign intelligence collection, correlation
and dissemination could be avoided by limiting the controls of S. 2008 to
information pertaining to citizens and aliens lawfully admitted for permanent
residence within the United States. It is believed this was the original
intent of the bill and such a limitation would certainly preserve the objectives
of the legislation, i.e. "protecting the constitutional rights and privacy" of
individuals. There does not seem to be any valid legislative purpose that
would be served by extending these protections to the world at large. There-
fore, it is recommended that sections 102(5), (12), and (13) be amended by
appropriately inserting the phrase "...pertaining to a citizen of the United
States or alien lawfully admitted for permanent residence within the United
States...."
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III. Second Problem
The standards in sections 204(b) and (d) may not provide the Agency
with sufficient access to criminal justice information to satisfy the Agency's
requirements relative to (a) background security investigations and (b) special
inquiries for operational purposes.
1. The Agency conducts "background checks" on individuals pursuant
to Executive Orders 10450 and 11652, Agency regulations which implement
these Orders, and Section 102 (d) (3) which imposes on the Director of Central
Intelligence the statutory responsibility for protecting intelligence sources
and methods from unauthorized disclosure. Generally speaking, the Agency
conducts two kinds of "background checks": (1) "security investigations"
relative to an employment application, employment retention, or approval of
security clearance; and (2) "special inquiries" for operational purposes.
2. "Security investigations" (relative to employment and security
clearances) are provided for in Section 204(b) . The subject of such an
investigation, having usually caused its initiation himself, knows he is being
investigated. In any case, subsection (c) of section 204 would require the
subject be advised of the investigation. The major problem that the Agency
would face with respect to Section 204(b) is the limitation on access to arrest
information to a time period of twelve months prior to the date of the request.
This falls far short of the 15-year requirement now in effect.
3. The Agency makes "special inquiries" for operational purposes in
cases where the subject cannot be made aware, at least initially, that he is
being checked. These operational cases do not arise in employment applica-
tion or security clearance contexts. These background checks are not under-
taken for criminal justice purposes, but rather for foreign intelligence purposes
and pursuant to the Director's authority to protect intelligence sources and
methods. The following are examples of "special inquiries":
EXAMPLE: An American citizen with excellent connections
in a foreign country is planning a visit to that country. The Agency
would like to ask this individual to attempt to extract a particular
item of information in the course of conversations with his foreign
contacts. Before approaching this individual the Agency might check
to see if he had a prior criminal history record.
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4. It is believed that section 204(d) goes far in providing for these
"special inquiries" while at the same time protecting against possible abuse.
However, slight modifications are recommended below.
1. It is recommended that it be made clearer that the access permitted
under Section 204(d) is in addition to the regular security clearance access
provided all Government agencies under Section 204(b). This could be
accomplished by adding this phrase at the beginning of subsection (d);
"In addition to dissemination authorized under
subsection (b) or this section, ..."
2. It is recommended that the phrase in subsection (d), "upon the
Director's being directed by the National Security Council to make an investiga-
tion, " be changed to read:
" ... under the direction of the National Security Council. . . "
This would make it clear that the NSC has general oversight and directive
responsibilities and is not required to authorize each specific background
check.
3. Rather than have the Director report annually "to the Congress,"
require him to report "to those committees of Congress which have legislative
oversight over the Central Intelligence Agency."
4. Finally, amend section 204(b) to permit access to "criminal justice
information" for at least a 15-year period.
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