INTELLIGENCE OVERSIGHT ACT OF 1988

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90M00005R000800110001-6
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 74
• Document Creation Date: December 22, 2016
• Document Release Date: October 31, 2012
• Sequence Number: 1
• Publication Date: January 1, 1988
• Content Type: REPORT

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'0W-. ', OCA 88-0225 1 n I
100th Congress SENATE Report 100-
2nd Session.
INTELLIGENCE OVERSIGHT ACT OF 1988
MR. BOREN, for the Select Committee on Intelligence,
submitted the following
(To accompany S. 1721, as amended)
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REPORT TO ACCOMPANY S. 1721, AS AMENDED
The Select Committee on Intelligence, having considered
(S. 1721), a bill to improve the congressional oversight of
certain intelligence activities, and to strengthen the process
by which such activities are approved within the executive
branch, and for other purposes, reports favorably with an
amendment in the nature of a substitute and recommends
that the bill as amended do pass.
The purpose of S. 1721, as reported, is to clarify the
legal requirements for congressional oversight of intelligence
activities, including special activities, and to specify the
procedures for authorization of special activities within the
executive branch, so as to ensure that such activities are
conducted in the national interest.
Strike all after the enacting clause and insert in lieu
thereof the following:
That this Act may be cited as the "Intelligence Oversight Act
of 1988".
SECTION 1. Section 662 of the Foreign Assistance Act of
1961 (22 U.S.C. 2422) is hereby repealed.
SEC. 2. Section 501 of title V of the National Security
Act of 1947 (50 U.S.C. 413) is amended by striking the
language contained there in, and substituting the following
new sections:
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GENERAL PROVISIONS
SEC. 501.(a) The President shall ensure that the Select
Committee on Intelligence of the Senate and the Permanent
Select Committee of the House of Representatives (hereinafter
in this title referred to as the "intelligence committees")
are kept fully and currently informed of the intelligence
activities of the United States, including any significant
anticipated intelligence activities, as required by this
title; provided, however, that nothing contained in this title
shall be construed as requiring the approval of the
intelligence committees as a condition precedent to the
initiation of such activities: and provided further, however,
That nothing contained herein shall be construed as a
limitation on the power of the President to initiate such
activities in a manner consistent with his powers conferred by
the Constitution.
(b) The President shall ensure that any illegal
intelligence activity is reported to the intelligence
committees, as well as any corrective action that has been
taken or is planned in connection with such illegal activity.
(c) The President and the intelligence committees shall
each establish such procedures as may be necessary to carry
out the provisions of this title.
(d) The House of Representatives and the Senate, in
consultation with the Director of Central Intelligence, shall
each establish, by rule or resolution of such House,
procedures to protect from unauthorized disclosure all
classified information and all information relating to
intelligence sources and methods furnished to the intelligence
committees or to Members of Congress under this title. In
accordance with such procedures, each of the intelligence
committees shall promptly call to the attention of its
respective House, or to any appropriate committee or
committees of its respective House, any matter relating to
intelligence activities requiring the attention of such House
or such committee or committees.
(e) Nothing in this Act shall be construed as authority
to withhold information from the intelligence committees on
the grounds that providing the information to the intelligence
committees would constitute the unauthorized disclosure of
classified information or information relating to intelligence
sources and methods.
(f) As used in this section, the term "intelligence
activities" includes, but is not limited to, "special
activities as defined in subsection 503(e), below.
REPORTING INTELLIGENCE ACTIVITIES OTHER THAN
SPECIAL ACTIVITIES
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SEC. 502. To the extent consistent with due regard for
the protection from unauthorized disclosure of classified
information relating to sensitive intelligence sources and
methods or other exceptionally sensitive matters, the Director
of Central Intelligence and the heads of all departments,
agencies, and other entities of the United States Government
involved in intelligence activities shall:
(a) keep the intelligence committees fully and
currently informed of all intelligence
activities, other than special activities, as
defined in subsection 503(e), below, which are
the responsibility of, are engaged in by, or
are carried out for or on behalf of, any
department, agency, or entity of the United
States Government, including any significant
anticipated intelligence activity and
significant failures; and
(b) furnish the intelligence committees any
information or material concerning intelligence
activities other than special activities which
is within their custody or control, and which
is requested by either of the intelligence
committees in order to carry out its authorized
responsibilities.
PRESIDENTIAL APPROVAL AND REPORTING
OF SPECIAL ACTIVITIES
SEC. 503. (a) The President may authorize the conduct of
"special activities," as defined herein below, by departments,
agencies, or entities of the United States Government only
when he determines such activities are necessary to support
the foreign policy objectives of the United States and are
important to the national security of the United States, which
determination shall be set forth in a finding that shall meet
each of the following conditions:
(1) Each finding shall be in writing unless
immediate action by the United States is
required and time does not permit the
preparation of a written finding, in which case
a written record of the President's decision
shall be contemporaneously made and shall be
reduced to a written finding as soon as
possible but in no event more than forty-eight
hours after the decision is made;
(2) A finding may not, authorize or sanction special
activities, or any aspect of such activities,
which have already occurred;
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(3) Each finding shall specify each and every
department, agency, or entity of the United
States Government authorized to fund or
otherwise participate in any significant way in
such activities: Provided, That any employee,
contractor, or contract agent of a department,
agency, or entity of the United States
Government other than the Central Intelligence
Agency directed to participate in any way in a
special activity shall be subject either to the
policies and regulations of the Central
Intelligence Agency, or to written policies or
regulations adopted by such department, agency
or entity, to govern such participation;
(4) Each finding shall specify whether it is
contemplated that any third party which is not
an element of, contractor or contract agent of,
the United States Government, or is not
otherwise subject to United States Government
policies and regulations, will be used to fund
or otherwise participate in any significant way
in the special activity concerned, or be used
to undertake the special activity concerned on
behalf of the United States;
(5) A finding may not authorize any action intended
to influence United States political processes,
public opinion, policies or media; and
(6) A finding may not authorize any action that
would violate any statute of the United States.
(b) To the extent consistent with'due regard for the
protection from unauthorized disclosure of classified
information relating to sensitive intelligence sources and
methods, or other exceptionally sensitive matters, the
Director of Central Intelligence and the heads of all
departments, agencies, and entities of the United States
Government involved in a special activity shall:
(1) keep the intelligence committees fully and
currently informed of all special activities
which are the responsibility of, are engaged in
by, or are carried out for or on behalf of, any
department, agency, or entity of the United
States Government, including significant
failures; and
(2) furnish to the intelligence committees any
information or material concerning special
activities which is in the possession, custody
or control of any department, agency, or entity
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of the United States Government and which is
requested by either of the intelligence
committees in order to carry out its authorized
responsibilities.
(c)(1) Except as provided in subsection (2) through (4),
below, the President shall ensure that any finding approved,
or determination made, pursuant to subsection (a), above,
shall be reported to the intelligence committees prior to the
initiation of the activities authorized, and in no event later
than 48 hours after such finding is signed or the
determination is otherwise made by the President.
(c)(2) On rare occasions when time is of the essence,
the President may direct that special activities be initiated
prior to reporting such activities to the intelligence
committees; provided, however, That in such circumstances,
notice shall be provided the intelligence committees as soon
as possible thereafter but in no event later than 48 hours
after the finding authorizing such activities is signed or
such determination is made, pursuant to subsection (a), above.
(c)(3) When the President determines it is essential to
meet extraordinary circumstances affecting vital interests of
the United States, the President may limit the reporting of
findings or determinations pursuant to subsections (1) or (2)
of this section, the the chairmen and ranking minority members
of the intelligence committees, the Speaker and Minority
leader of the House of Representatives, and the majority and
Minority leaders of the Senate. In such case, the President
shall provide a statement of the reasons for limiting access
to such findings or determinations in accordance with this
subsection.
(c)(4) Notwithstanding the provisions of subsection (3)
above, when the President determines it is essential to meet
extraordinary circumstances affecting the most vital security
interests of the United States and the risk of disclosure
constitutes a grave risk to such vital interests, the
President may limit the reporting of findings or
determinations pursuant to subsections (1) or (2) of this
section to the Speaker and Minority Leader of the House of
Representatives, and the Majority and Minority Leaders of the
Senate. In such cases, the President shall provide a
statement of reasons explaining why notice to the intelligence
committees is not being provided in accordance with subsection
(c)(1), above. The President shall personally reconsider each
week thereafter the 'reasons for continuing to limit such
notice, and provide a statement to the members of Congress
identified herein above on a weekly basis, confirming his
decision, until such time as notice is, in fact, provided the
intelligence committees.
(c)(5) In all cases reported pursuant to subsections
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b
(c)(1), (c)(2), and (c)(3), above, a copy of the finding,
signed by the President, shall be provided to the chairmen of
each intelligence committee. In all cases reported pursuant
to subsection (c)(4), a copy of the finding, signed by the
President, shall be shown to the members of Congress
identified in such subsection at the time such finding is
reported.
(d) The President shall ensure that the intelligence
committees, or, if applicable, the members of Congress
specified in subsection (c), above, are notified of any
significant change in a previously-approved special activity,
or any significant undertaking pursuant to a
previously-approved finding, in the same manner as findings
are reported pursuant to subsection (c), above.
(e) As used in this section, the term "special activity"
means:
(1) any operation of the Central Intelligence
Agency conducted in foreign countries, other
than activities intended solely for obtaining
necessary intelligence; and
(2) to the extent not inconsistent with subsection
(1), above, any activity conducted by any
department, agency, or entity of the United
States Government in support of national
foreign policy objectives abroad which is
planned and executed so that the role of the
United States Government is not apparent or
acknowledged publicly, and functions in support
of such activity, but which does not include
diplomatic or related support activities.
SEC. 3. Section 502 of title V of the National Security
Act of 1947 (50 U.S.C. 414) is redesignated as section 504 of
such Act, and is amended by deleting the number "501" in
subsection (a)(2) of such section and substituting in lieu
thereof "503"; and is further amended by adding the following
new subsection (d):
"(d) No funds appropriated for, or otherwise
available to, any department, agency, or entity
of the United States Government, may be
expended, or may be directed to be expended,
for any special activity, as defined in
subsection 503(e), above, unless and until a
Presidential finding required by subsection
503(a), above, has been signed or otherwise
issued in accordance with that subsection."
SEC. 4. Section 503 of title V of the National Security
Act of 1947 (50 U.S.C. 415) is redesignated as section 505 of
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COMMITTEE ACTION
On December 16, 1987, the Select Committee on
Intelligence, a quorum being present, approved the bill with
an amendment and ordered that it be favorably reported on
January 27, 1988, subject to any motion to reconsider that
might be made at a meeting scheduled for that date. The
Committee approved the bill and ordered it favorably reported
by a vote of 13-2.
The purpose of the amendment adopted by the Select
Committee is to clarify the legislative intent and ensure that
the bill conforms wherever possible to existing law and
current Executive branch policy. The amendment also responds
to practical concerns expressed by the Administration and the
intelligence community. The Committee consulted with
Executive branch officials before and during the mark-up on
December 16, 1987, and received assurances that the amendment
resolved every issue other than the requirement to notify
appropriate members of Congress within 48 hours of
presidential approval of special activities.
The clause in section 501(a) requiring "prior
consultations" is deleted and in its place the phrase
"including any significant anticipated intelligence
activities" is inserted. This conforms the provision to
current law which ordinarily requires prior notice of
"significant intelligence activities" to the intelligence
committees.
The amendment makes several changes to maintain the
existing general statutory oversight framework which provides
that the intelligence committees receive information to the
extent consistent with due regard for the protection from
unauthorized disclosure of classified information relating to
sensitive intelligence sources and methods or other
exceptionally sensitive matters. In subsection 501(b) the
requirement for reporting "significant intelligence failures"
is moved to sections 502 and 503(b) so as to remain subject to
the "due regard" clause. In section 502 this clause is moved
to the beginning of the section to make clear that it applies
to both reporting requirements contained in the section. The
wording of the clause is also revised to remain consistent
with the intent of current law. In subsection 503(b) the "due
regard" clause is added so that it applies to the general
requirements in that subsection for reporting information on
special activities.
a
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The amendment refines the provisions of subsection 503(a)
for presidential authorization of special activities. The
word "only" is inserted to make clear that the President may
authorize special activities only when he makes the requisite
determinations. The word "significant" is added to paragraph
(a)(3) to exclude from the finding requirement specification
of agencies that provide routine, incidental, and minimal
support to a special activity. The amendment deletes as
inappropriate the language in paragraph (a)(3) which required
that policies or regulations for participation in special
activities by agencies other than the CIA be adopted "in
consultation with the Director of Central Intelligence."
Paragraph (a)(4) is revised to require that each finding
specify "whether" it is contemplated that any uncontrolled
third party will be used to fund or otherwise participate in
any "significant" way in the special activity concerned.
This requires less detailed information in the finding and
excludes routine, minimal, and incidental support for a
special activity. Paragraph (a)(4) is expanded to apply when
an uncontrolled third party is to be used to undertake the
special activity concerned on behalf of the United States.
Paragraph (a)(5) inserts the prohibition against special
activities for the purpose of influencing domestic political
processes, public opinion, policies or media, which was
previously contained in the definition of "special
activities." No change in current law is entailed by this
stylistic revision. Paragraph (a)(6) is modified to
eliminate ambiguity and conform to existing law by providing
that a finding may not authorize any action that would
"violate" any statute of the United States.
The general requirements in subsection 503(b) for
providing information on special activities to the
intelligence committees are revised to add the "due regard"
clause and reference to "significant failures" (as discussed
above), to delete the obligation of the President which is
adequately covered by subsection 501(a), and to conform the
language to current law by covering departments, agencies, and
entities "involved in" a special activity.
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The specific requirements in subsection 503(c) for notice
of Presidential findings are modified to make clear in
paragraph (c)(1) that the normal rule is notice to the
intelligence committees prior to initiation of a special
activity and in no event later than 48 hours after
presidential approval, and in paragraph (c)(2) that where
prior notice cannot be given due to exigent circumstances,
notice must be given within 48 hours of presidential approval.
Paragraph (c)(3) retains the current option of the President
to notify eight congressional and committee leaders, and
paragraph (c)(4) gives the President an additional option to
notify the four congressional leaders under certain
conditions. Paragraph (c)(5) makes clear that Congress will
always receive a copy of the finding signed by the President,
whatever the circumstances of the approval and reporting.
The requirement in subsection 503(d) for notice of
significant changes in a special activity is modified to make
the procedures conform to the approval and reporting
requirements for the original finding, and to ensure that
significant undertakings pursuant to previously-approved
findings (which do not require changes in the findings
themselves) are reported.
The definition of "special activities" in subsection
503(e) is changed to reflect the two elements of existing law
-- the Hughes-Ryan Amendment (22 U.S.C. 2422) which applies to
the CIA, and Executive Order 12333 which applies to all
government agencies -- so as not to disturb the body of legal
interpretation under current legal requirements.
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The Intelligence Oversight Act of 1988 is the culmination
of a lengthy and comprehensive review and analysis by the
Intelligence Committee of possible changes in the intelligence
oversight statutes. S. 1721 was introduced on September 25,
1987, by Senator Cohen on behalf of himself and Senators
Boren, Inouye, Mitchell, Bentsen, DeConcini, Murkowski, and
Rudman. The formal introduction of this legislation came many
months after the Intelligence Committee had begun an intensive
examination of the need to clarify and strengthen the
statutory provisions for intelligence oversight. That process
began in the fall of 1986, with the initial Committee inquiry
into the Iran-Contra affair. It continued through the
Committee's hearings on the nomination of a new Director of
Central Intelligence and formal Committee recommendations to
the Administration for changes in Executive branch procedures,
many of which were embodied in a presidential directive (NSDD
286). Through its overlapping Members and staff, the
Intelligence Committee benefited directly from the work of the
temporary Select Committee on Secret Military Assistance to
Iran and the Nicaraguan Opposition. When that Committee
completed its hearings and issued its report, the Intelligence
Committee immediately began legislative hearings and
consultations with Executive branch officials and outside
experts leading to the mark-up of S. 1721.
I. Preliminary Iran-Contra Inquiry
Following public disclosure of-the Iran arms sales in
November 1986, the Committee began a thorough review of how
the laws and procedures for covert action might have been
violated, disregarded or misinterpreted. Director of Central
Intelligence William Casey testified initially on these issues
on November 21, 1986. After the Attorney General's
announcement of November 25, 1986, disclosed the diversion of
Iran arms sale proceeds to the Contras, the Committee
initiated a formal preliminary investigation which began on
December 1, 1986, and was completed with a public report on
January 29, 1987, to the new Select Committee on Secret
Military Assistance to Iran and the Nicaraguan Opposition.
S. Rep. No. 100-7.
The Committee's preliminary inquiry examined in depth the
circumstances in which the statutes, Executive orders, and
procedures for covert action approval and oversight were
interpreted and applied in the Iran-Contra affair. Witnesses
who discussed these issues included the Secretaries of State
and Defense, the Attorney General, the President's Chief of
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Staff, one former National Security Adviser to the President,
the Deputy Director of Central Intelligence and his
predecessor, the CIA General Counsel and his predecessor,
the CIA Deputy Director for Operations, the Chief of the CIA
Central America Task Force, the CIA Comptroller General, the
CIA Inspector General, the Assistant Secretary of State for
Latin American Affairs, the Assistant Secretary of Defense for
international Security Affairs, and other Executive branch
officials. While this testimony was not public, it remains
part of the legislative record of the Committee's
consideration of S. 1721.
The Committee's preliminary report identified key factual
issues that needed to be addressed by the Select Iran-Contra
Committee, whose ten members included four senior members of
the Intelligence Committee -- the Chairman, the Vice Chairman,
and Senators Nunn and Hatch. Through this overlapping
arrangement, which included significant involvement by
Committee staff as well, the Intelligence Committee was able
to benefit throughout the year from the findings and
deliberations of the Iran-Contra Committee.
II. DCI Confirmation Hearings
At the outset, it became clear from the Intelligence
Committee's intensive preliminary Iran-Contra inquiry that
significant changes were required in the covert action
oversight framework. Accordingly, the Committee discussed
these issues at the hearings on the nomination of Robert Gates
as Director of Central Intelligence in February, 1987.
Nomination of Robert Gates, Hearings before the Senate Select
Committee on intelligence, 1987. After his nomination was
withdrawn, the Committee again raised these issues with Judge
William H. Webster at his confirmation hearings as DCI in
April, 1987.
Under questioning from Committee members, Judge Webster
agreed that Presidential findings for covert action should be
in writing and should not be retroactive. He also agreed that
covert action by components of the government other than the
CIA, such as the National Security Council staff, should be
reported to the Intelligence Committees in the same manner as
CIA operations. Most importantly, he agreed that he would
recommend to the President against withholding notification
under any but the most extreme circumstances involving life
and death and then only for a few days. Nomination of William
H. Webster, Hearings before the Senate Select Committee on
Intelligence, 1987, pp. 64, 68-69, 158.
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III. Letter to the National Security Adviser
At the same time as the Iran-Contra committee began its
hearings, the Intelligence Committee proceeded to develop a
set of recommendations for immediate action by the Executive
branch under current law that might also serve as the basis
for legislation. At meetings in June, 1987, the Committee,
after much discussion and detailed deliberation, approved a
letter to the President's National Security Adviser, Frank
Carlucci, setting forth detailed proposals for improved covert
action approval and reporting procedures. These later became
essential features of S. 1721. The President's response to
that letter on August 7, 1987, was printed in the
Congressional Record when S. 1721 was introduced on September
25, 1987.
The Committee's letter of July 1, 1987, to National
Security Adviser Carlucci recommended that covert action
approval and reporting procedures ought to incorporate the
following points, which are key provisions of S. 1721:
-- In all cases there shall be a finding by the
President prior to the initiation of any covert
action. No finding may retroactively authorize or
sanction any covert action not undertaken pursuant
to, and subsequent to, a finding specifically
approved by the President.
-- To ensure accountability and to provide unambiguous
direction for actions taken within the Executive
branch, there will be no "oral" findings unless the
President determines that immediate action is
required of the United States to deal with an
emergency situation affecting vital U.S. interests,
and time does not permit the drafting of a written
finding. In these circumstances, the "oral" finding
shall be immediately reduced to writing and signed by
the President. The written finding shall include the
President's reasons for first proceeding with an
"oral" finding.
-- Each finding approved by the President shall specify
any and all entities within the Executive branch that
will fund or otherwise participate in any in carrying
out the activities which are authorized, and shall
set forth the nature and extent of such
participation. The President shall be responsible
for reporting all
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findings to the Intelligence Committees, regardless
of which entity or entities within the Executive
branch are designated to participate in the activity
in question. At the time such reports are made, the
President shall also identify to the Committee any
third country and, either by name or descriptive
phrase, any private entity or person, which the
President anticipates will fund or otherwise
participate in any way in carrying out the activities
which are authorized and shall set forth the nature
and extent of such participation. Any changes in
such plans or authorizations shall be reported to the
Intelligence Committees prior to implementation.
Where the President determines to withhold prior
notice of covert actions from the two intelligence
Committees, such prior notice may be withheld only in
accordance with specific procedures. Such procedures
shall, at a minimum, require that the President, or
his representative, shall, in all cases without
exception, notify contemporaneously, and in no
event later than within 48 hours, the Majority and
Minority Leaders of the Senate and the Speaker and
Minority Leader of the House, and the Chairmen and
Vice Chairmen of the two Intelligence Committees of
the existence of the finding, which notification
shall include a summary of the actions authorized
pursuant thereto and a statement of the reasons for
not giving prior notice.
IV. NSDD 286
The Committee's dialogue with the Administration, through
National Security Adviser Carlucci, did not result in full
agreement on new Executive branch procedures. These extensive
consultations did, however, contribute to the substantive
provisions of a new National Security Decision Directive on
Special Activities (NSDD 286) issued by the President to
clarify the rules by which covert actions are reviewed,
approved, and reported to Congress. As a result, because much
of the NSDD was developed in close consultation with the
Committee, many of its provisions are contained in S. 1721.
This can be illustrated by comparing several provisions
of the bill and the Presidential directive:
-- S. 1721 requires that findings be in
writing and cannot be made retroactive. S. 1721
provides that findings may not violate existing
statutes. Similar requirements are contained
in the NSDD. .
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S. 1721 makes clear that a Presidential
finding must be obtained before any department,
agency, or other entity of the U.S. Government can
conduct a special activity. The Presidential
directive affirms this principle.
-- S. 1721 requires that the Intelligence Committees be
informed when a special activity involves another
U.S. government agency or a third party who is not
under the supervision of a U.S. government agency.
The NSDD requires that these issues be addressed in a
statement accompanying the finding.
Of course, however, a Presidential directive is not the
same as a statute and can be changed without warning by
another President. Indeed, when the President's Chief of
Staff, Donald Regan, was asked during the Committee's
preliminary Iran-Contra inquiry about the previous NSDD
procedures for approval of special activities, in effect when
the Iran arms sales were approved, he professed ignorance of
that NSDD. S. 1721 would ensure that the requirements put in
place by the Presidential directive cannot so readily be
ignored or set aside in the future.
In the consultations leading to the NSDD, the Committee
and the Administration were unable to reach agreement on a
requirement that the intelligence Committees, or the group of
leaders, be informed of covert actions within 48 hours of
their approval by the President. The NSDD requires a National
Security Council planning group to reevaluate at least every
10 days a decision to delay congressional notification of a
given finding. While the rationale may be to ensure that the
delay will be kept to the absolute minimum length of time, the
procedure contemplates that notice may be withheld
indefinitely so long as NSC planning group members agree.
Thus, the NSDD appears to conflict with the current
oversight statute which, in subsection 501(b) of the National
Security Act, requires notification "in a timely fashion" and
does not permit such indefinite delay. The differences of
opinion between the Executive branch and members of Congress
over the meaning of term "timely" have demonstrated the
necessity for legislation to clarify the legislative intent.
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V. Iran-Contra Committee
All these issues were fully considered at great length by
the Intelligence Committee and the Iran-Contra Committee in
the months leading up to the introduction of S. 1721 and the
approval of nearly identical Iran-Contra Committee
recommendations. Much of the same ground covered in the
Intelligence Committee's closed hearings in December, 1986,
was covered again in the public Iran-Contra hearings and
report in 1987. The witnesses discussed not only the facts of
the Iran-Contra affair, but also the way covert action
approval and oversight procedures were applied or, in many
cases, misapplied. Accordingly, the exhaustive work of the
special Iran-Contra Committee also serves as a part of the
legislative record of S. 1721.
And the work of the special Iran-Contra Committees was
certainly significant. The staffs of the House and Senate
Committees reviewed more than 300,000 documents and
interviewed or examined more than 500 witnesses. The
Committees held 40 days of joint public hearings and several
executive sessions. The joint report of the Committees is
over 690 pages long, including the minority report and
supplemental and additional views of individual members.
The following recommendations from the joint report of
the Iran-Contra Committees are reflected in S. 1721:
"1. Findings: Timely Notice
"The Committees recommend that Section 501 of the
National Security Act be amended to require that Congress
be notified prior to the commencement of a covert action
except in certain rare instances and in no event later
than 48 hours after a Finding is approved. This
recommendation is designed to assure timely notification
to Congress of covert operations.
"Congress was never notified of the Iranian arms
sales, in spite of the existence of a statute requiring
prior notice to Congress of all covert actions, or, in
rare situations, notice 'in a timely fashion.' The
Administration has reasoned that the risks of leaks
justified delaying notice to Congress until after the
covert action was over, and claims that notice after the
action is over constitutes notice in a timely fashion.'
This reasoning defeats the purpose of the law.
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"2. Written Findings
"The Committees recommend legislation requiring that
all covert action Findings be in writing and personally
signed by the President. Similarly, the Committees
recommend legislation that requires that the Finding be
signed prior to the commencement of the covert action,
unless the press of time prevents it, in which case it
must be signed within 48 hours of approval by the
President.
"The legislation should prohibit retroactive
Findings. The legal concept of ratification, which
commonly arises in commercial law, is inconsistent with
the rationale of Findings, which is to require
Presidential approval before any covert action is
initiated....
"3. Disclosure of Written Findings to Congress
"The Committees recommend legislation requiring
that copies of all signed written Findings be sent to
the Congressional Intelligence Committees....
"4. Findings: Agencies Covered
"The Committees recommend that a Finding by the
President should be required before a covert action is
commenced by any department, agency, or entity of the
United States Government regardless of what source of
funds is used....
"5. Findings: Identifying Participants
"The Committees recommend legislation requiring
that each Finding should specify each and every depart-
ment, agency, or entity of the United States Government
authorized to fund or otherwise participate in any way
in a covert action and whether any third party,
including any foreign country, will be used in carrying
out or providing funds for the covert action. The
Congress should be informed of the identities of such
third parties in an appropriate fashion....
"7. Presidential Reporting
"The Committees recommend that consistent with the
concepts of accountability inherent in the Finding
process, the obligation to report covert action Findings
should be placed on the President....
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"8. Findings Cannot Supercede Law
"The Committees recommend legislation affirming what
the Committees believe to be the existing law: that a
Finding cannot be used by the President or any member of
the executive branch to authorize an action inconsistent
with, or contrary to, any statute of the United States."
S. Rept. No. 100-216, pp. 423-426.
The joint report of the Iran-Contra Committees concluded
its chapter on "Covert Action in a Democratic Society" with
the following principles that have been followed by the
Intelligence Committee in developing this legislation:
"(a) Covert operations are a necessary component of our
Nation's foreign policy. They can supplement, not replace,
diplomacy and normal instruments of foreign policy. As
National Security Adviser Robert McFarlane testified, it is
clearly unwise to rely on covert action as the core of our
policy.' The government must be able to gain and sustain
popular support for its foreign policy through open, public
debate.
"(b) Covert operations are compatible with democratic
government if they are conducted in an accountable manner and
in accordance with law. Laws mandate reporting and prior
notice to Congress. Covert action Findings are not a license
to violate the statutes of the United States.
"(c) As the Church Committee wrote more than a dozen
years ago, 'covert actions should be consistent with publicly
defined United States foreign policy goals." But the policies
themselves cannot be secret.
"(d) All Government operations, including covert action
operations, must be funded from appropriated monies or from
funds known to the appropriate committees of the Congress and
subject to Congressional control. This principle is at the
heart of our constitutional system of checks and balances.
"(e) The intelligence agencies must deal in a spirit of
good faith with the Congress. Both new and ongoing covert
action operations must be fully reported, not cloaked by broad
Findings. Answers that are technically true, but misleading,
are unacceptable.
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"(f) Congress must have the will to exercise oversight
of covert operations. The intelligence committees are the
surrogates for the public on covert action operations. They
must monitor the intelligence agencies with that
responsibility in mind.
"(g) The Congress also has a responsibility to ensure
that sensitive information from the executive branch remains
secure when it is shared with the Congress. A need exists for
greater consensus between the Legislative and executive
branches on the sharing and protection of information.
"(h) The gathering, analysis, and reporting of
intelligence should be done is such a way that there can be no
question that the conclusions are driven by the actual facts,
rather than by what a policy advocate hopes these facts will
be." S. Rept. No. 100-216, pp. 383-384.
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V. Hearings and Consultations
Pursuant to the terms of S. Res. 23, and in order to
receive the final recommendations based on the extensive work
of the Iran-Contra Committee, the Intelligence Committee
postponed hearings on the specific proposals contained in
S. 1721 until after final approval of the Iran-Contra
Committee's Report in November, 1987. Thereafter, the
Intelligence Committee immediately began the final phase of
its work on oversight legislation. At a public hearing on
November 13, 1987, the sponsors of legislation in this area
testified on their respective bills. Senator William S. Cohen
testified on behalf of S. 1721. Senator Arlen Specter
testified on behalf of S. 1818, which contains similar covert
action finding and notice requirements and would establish a
statutory Inspector General for the CIA and impose a mandatory
jail term for false statements to Congress. Senator John
Glenn testified on behalf of S. 1458 which would authorize the
General Accounting Office to audit CIA programs and
activities. Senator Wyche Fowler testified on behalf of S.
1852 which would establish standards for covert action.
At a closed hearing on November 20, 1987, DCI William
Webster testified on the practical impact of the bills on the
intelligence community. Director Webster identified specific
concerns which the Committee subsequently took into account in
revising the bill. At a public hearing on December 11, 1987,
the Committee received testimony from the Vice Chairman of the
Iran-Contra Committee, Senator Warren Rudman, who cosponsored
S. 1721. Assistant Attorney General Charles Cooper testified
at that hearing on how the Justice Department's view of
constitutional law applied to the bill. Also testifying at
that hearing were the authors of similar House legislation,
H.R. 1013, Representative Louis Stokes, Chairman of the House
Permanent Select Committee on Intelligence, and Representative
Matthew F. McHugh, Chairman of the its Subcommittee on
Legislation.
On December 16, 1987, the Committee received testimony at
a final public hearing from Secretary of Defense Frank
Carlucci and Under Secretary of State Michael Armacost, who
expressed the Administration's opposition to the requirement
in S. 1721 to report covert action findings to appropriate
members of Congress within 48 hours, and from former Secretary
of Defense Clark Clifford and former Deputy Director of
Central Intelligence John McMahon, who supported this
requirement. On December 17, 1987, the Committee received a
letter from FBI Director William S. Sessions raising questions
about the application of the bill to FBI foreign
counterintelligence and international terrorism investigative
programs.
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L
At the same time, the Committee consulted widely with
knowledgeable people, including former senior U.S. Government
officials, experts in intelligence law, and Executive branch
representatives. Committee staff met personally with over two
dozen experts who provided valuable assistance in helping to
evaluate and refine the language of S. 1721, and results of
that process were made. available through their staff to all
members of the Committee.
Representatives of several. organizations submitted
written comments on the bill. The American Civil Liberties
Union recommended greater restrictions on covert action and
officials of the following organizations recommended fewer
restrictions: the Association of Former Intelligence
Officers, the Hale Foundation, the National Intelligence Study
Center, and the Security and Intelligence Foundation.
Individuals submitting written comments in general support of
the bill included former Secretary of State Cyrus Vance,
Senator Patrick Leahy, Harry Howe Ransom of Vanderbilt
University, Gregory F. Treverton and Laurence H. Tribe of
Harvard University, and Loch Johnson of the University of
Georgia. Individuals submitting written comments in general
opposition included former Senator Barry Goldwater, former
DCIs Richard Helms and Stansfield Turner, Robert F. Turner,
former Counsel to the President's Intelligence Oversight
Board, and John Norton Moore of the University of Virginia.
Therefore, the Committee's decision to report S. 1721 was
the culmination of a long and exhausive process of review and
analysis of the need for specific changes in the current
oversight statutes. Indeed, that process extends back to the
very beginning of the Committee's experience under the present
law. It has taken into account not only the lessons of the
Iran-Contra affair, but also the concerns and expertise of
current and former policymakers and intelligence officials who
were not involved in the Iran-Contra events. In fact, few
issues have received such detailed consideration by so many
people over so great a period of time prior to final mark-up.
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I. Background
It is important to note that, prior to the Iran-Contra
affair, the Intelligence Committee had continuously analyzed
the issues raised by the ambiguities in the applicable
oversight statutes. In fact, consideration of these issues
dates back to 1981, almost immediately after enactment in 1980
of the Intelligence Authorization Act for Fiscal Year 1981
which established the essential features of the present
oversight process.
A. Intelligence Oversight Act of 1980
The 1980 legislation, which was originally reported by
the Committee and passed by the Senate as the Intelligence
Oversight Act of 1980, made two fundamental changes to the
statutory framework for intelligence oversight. First, it
modified the Hughes-Ryan Amendment of 1974 to confine notice
of Presidential findings for CIA covert action to the two
intelligence committees. This reduced from eight to two the
number of committees notified of covert action findings.
Second, the 1980 legislation added a new Section 501 on
congressional oversight to the National Security Act of 1947.
Section 501 established comprehensive oversight procedures for
all departments, agencies, and entities of the United States
engaged in intelligence activities. It required that the two
Intelligence Committees be kept fully and currently informed
of all intelligence activities, including significant
anticipated intelligence activities. It also provided that
when the President determined it was essential to meet
extraordinary circumstances affecting vital US interests,
prior notice could be limited to eight members of Congress --
the Chairmen and Vice Chairmen of the Intelligence Committees,
the Speaker and Minority Leader of the House, and the Majority
and Minority Leader of the Senate.
Moreover, Section 501 was deliberately written with some
ambiguity as a means of reaching agreement with the Executive
Branch. As a result, for example, the requirement for prior
notice of covert action, to the committees or to the group of
eight, was legally conditioned by two clauses that appear at
the beginning of subsection 501(a) -- referred to as
"preambular clauses." The general reporting requirements
were imposed "to the extent consistent with due regard" for
the constitutional authorities of the executive and
legislative branches and "to the extent consistent with due
regard" for the protection of classified information and
intelligence sources and methods from unauthorized disclosure.
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The original Hughes-Ryan amendment of 1974 placed no such
conditions on its requirement for notice of CIA covert action
"in a timely fashion." Therefore, in order to preserve the
full force of the Hughes-Ryan notice requirement for the two
Intelligence Committees, the authors of the 1980 statute added
subsection 501(b) which was not qualified by the preambular
clauses. This subsection said that the President must report
to the Intelligence Committees "in a timely fashion" if prior
notice is not given under subsection (a) and must explain the
reasons for not giving prior notice.
B. Consultations on Executive Order 12333
Almost immediately after the 1980 law was enacted, the
Committee began to examine its meaning and application.
The first occasion to do so in 1981 was the confirmation
hearing for William Casey as DCI. Mr. Casey was asked
specifically about his intentions in the area where the
statute left some ambiguity about notice of covert action. He
replied that he intended "to comply fully with the spirit and
the letter of the Intelligence Oversight Act." He also noted
that there were "reservations.. .that relate to the President's
constitutional authority." Mr. Casey went on to add:
"I cannot conceive now of any circumstances under
which they would result in my not being able to provide
this committee with the information it requires. I would
obviously have to be subject to and discuss with the
President any particular situations which I cannot now
foresee, and I would do that in a way that this
committee would know about.." Nomination of William J.
Casey, Hearing before the Senate se ect committee on
Intelligence, January 13, 1981, p. 25.
Early in 1981, the Administration agreed to consult the
Committee on any changes that might be proposed in the
Executive Order on intelligence activities. This led to
formal consultation on. specific oversight issues addressed in
Executive Order 12333, issued by President Reagan on December
4, 1981. The previous order issued by President Carter in
1978 had contained a section on congressional oversight
similar to what became the language enacted by statute in
1980. The Reagan order deleted this section and substituted
a provision requiring compliance with the 1980 statute.
Executive order 12333, Sec. 3.1.
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L4
As a result of Committee consultation in 1981, Executive
Order 12333 added a provision not included in the previous
order to fill a gap in oversight law. The Hughes-Ryan
Amendment required a Presidential finding for CIA covert
action, but not for covert action by other parts of the
government. This gap was thought to have been closed by a new
Executive order provision stating that the finding requirement
of Hughes-Ryan "shall apply to all special activities as
defined in this Order." Executive Order 12333, Sec. 3.1.
However, as events later proved, the fact that this provision
was contained in an Executive order, but not in the statute,
presented an opportunity for abuse.
The Committee was also consulted on revisions in the
definition of "special activities" which permitted operations
inside the U.S. in support of "national foreign policy
objectives abroad" and which added language excluding
operations "intended to influence United States political
processes, public opinion, policies, or media." Executive
Order 12333, Sec. 3.4(h).
S. 1721 draws directly on these deliberations in 1981.
It would incorporate into the oversight statute the Executive
order requirement of a Presidential finding for special
activities by any part of the government. And it adopts the
essential features of the definition of "special activities,"
including the ban on operations to influence domestic US
politics or media.
The cooperation between the Committee and the Executive
branch in developing Executive Order 12333 reflected a
commitment on both sides to working out any problems with the
oversight procedures by mutual accommodation. A Committee
report to the Senate on September 23, 1981, included as an
appendix a summary of the legislative history of modification
of the Hughes-Ryan Amendment. It cited the floor statement by
the sponsor of the 1980 legislation, Senator Huddleston, that
"the only constitutional basis for the President to withhold
prior notice of a significant intelligence activity would be
exigent circumstances when time does not permit prior notice."
S. Rept. No. 97-193, pp. 31-34.
It has become clear as a result of the Iran-Contra
affair, however, that the Executive branch does not agree with
the intent of the sponsor of the oversight law. Instead, the
Justice Department has asserted the right to withhold prior
notice from even the group of eight leaders on the grounds of
protecting secrecy. In addition, the Department has construed
the "timely" notice provisions of the law to permit the
President to withhold notice indefinitely.
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These problems did not become apparent in the early
1980s, when the Committee was able to report that it "has
received detailed reports and has heard testimony on covert
action programs before implementation, and has actively
monitored the progress of those programs once launched.
Certain covert action programs have been modified to take into
account views expressed by the Committee." S. Rept. No.
98-10, p. 2. (Emphasis added.) In this period, the
Administration was able to comply fully with the prior notice
provisions of the oversight statutes, and operations clearly
benefited from that consultation.
C. Nicaragua Harbor-Mining
During 1983-84, problems with the Nicaragua covert action
program led to a reassessment of covert action oversight
procedures. In 1983 the Congress placed a $24 million
ceiling on funds available for the Nicaragua covert action
program in fiscal year 1984. Describing the events that led
up to this action, including a Committee requirement that the
Administration issue a new Presidential Finding, the Committee
explained the distinction between the powers of the Congress
to appropriate funds and to obtain information and the power
of the Executive to initiate operations:
"In this connection, it should be noted that, while the
Committee may recommend whether or not to fund a
particular covert action program and the Congress,
pursuant to its power over appropriations, may prohibit
such expenditures, the initiation of a program is within
the powers of the President. The Committee is entitled
by law to be informed of the President's Finding
authorizing such an action in advance of its implemen-
tation and to offer its counsel, but does not have the
right to approve or disapprove implementation of the
Finding." S. Rept. No. 98-655, p. 6.
This analysis of the constitutional powers of the respective
branches continues to be the basis for the Committee's current
consideration of S. 1721.
In early 1984, the mining of Nicaraguan harbors disrupted
the oversight relationship and led to the development of
formal procedures to clarify reporting obligations. On June
6, 1984, Director Casey, with the approval of the President,
signed a written agreement with the Committee setting forth
procedures for compliance with the statutory requirements.
The'Committee summarized them in a report to the Senate:
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"A key component of the agreement that ultimately
was achieved concerned recognition by the Executive
branch that, while each new covert action operation is
by definition a 'significant anticipated intelligence
activity,' this is not the exclusive definition of
that term. Thus, activities planned to be undertaken
as part of ongoing covert action programs should in and
of themselves be considered 'significant anticipated
intelligence activities' requiring prior notification
to the intelligence committees if they are inherently
significant because of factors such as their political
sensitivity, potential for adverse consequences, effect
on the scope of an on-going program, involvement of
U.S. personnel, or approval within the Executive branch
by the President or by higher authority than that
required for routine program implementation." S. Rept.
98-665, pp. 14-15.
S. 1721 builds directly upon the deliberations in 1984 by
specifying in statute the requirement to report significant
changes in covert actions under previously approved findings.
The procedures developed in cooperation with the CIA in 1984
provide a substantial basis for the legislative history of
this provision.
Subsequent experience indicated, according to the
Committee's 1984 report, that "further steps were necessary to
ensure that delays not inadvertently result in failure to
notify the Committee prior to implementation of significant
activities. The Chairman and Vice Chairman called this matter
to the attention of the DCI, and he agreed to the
establishment of specific time intervals for the notification
process." S. Rept. 98-665, p. 15, note 4. This was the
genesis of the the concept in S. 1721 of notice within a fixed
time period, such as 48 hours.
In the 99th Congress, the Committee and the DCI further
refined these procedures. An addendum signed in June 1986
provided, for example, that advisories to the Committee would
describe "any instance in which substantial nonroutine support
for a covert action operation is to be provided by an agency
or element of the U.S. Government other than the agency tasked
with carrying out the operation, or by a foreign government or
element thereof." Nomination of William H. Webster, Hearings
before the Senate Select Committee on Intelligence, 1987, pp.
52-54.
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The full texts of the 1984 agreement and the 1986
addendum appear in the hearings on Judge Webster's nomination
as DCI in 1987. Both the original agreement and the addendum
contained statements, insisted upon by the Executive branch,
that the agreed procedures were "subject to the possible
exceptional circumstances contemplated" in the 1980 oversight
statute. Thus, they had neither the status of law nor the
force of an unambiguous commitment. The problems associated
with this fact became manifest in the Iran-Contra affair.
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II. Objectives of the Bill
S. 1721 draws on this background and the intensive
deliberations surrounding the Iran-Contra inquiries in 1986-87
to achieve three principal objectives.
The first is to clarify and emphasize the general
responsibilities of the President to work with the Congress,
through the House and Senate Intelligence Committees, to
ensure that U.S. intelligence activities are conducted in the
national interest. Current law does not fully address the
obligations of the President. Nor does the existing statute
reflect the results of the consultations that have taken place
over the past year between the Committee and the Executive
branch on measures to implement the lessons learned from the
Iran-Contra inquiries.
The second objective is to eliminate unnecessary
ambiguities in the law. Experience under the current statutes
has indicated significant areas where Congressional intent may
be subject to misinterpretation by Executive branch officials,
as well as gaps in the law where Congress did not adequately
anticipate the need for statutory guidance. Examples are the
uncertain meaning of the requirement to report "in a timely
fashion," the absence of an explicit provision for written
presidential findings, and the need to specify those
responsible for implementing covert actions. The aim is to
clarify the intent of Congress with respect to oversight of
intelligence activities so as to reduce the possibilities for
misunderstanding or evasion. For purposes of clarity, a
distinction is made between the detailed provisions for
special activities, which are instruments of U.S. foreign
policy, and the requirements for other intelligence activities
(i.e., foreign intelligence and counterintelligence
collection and analysis) that are less controversial.
A third objective is to provide general statutory
authority for the President to employ special activities to
implement U.S. foreign policy by covert means. Congress has
not previously done- so, except to the extent that the CIA was
authorized by the National Security Act of 1947 "to perform
such other functions and duties related to intelligence
affecting the national security as the National Security
Council may from time to time direct." Current law requires
presidential approval and reporting to the intelligence
committees, but this does not provide affirmative statutory
authority to employ covert means as a supplement to overt
instruments of U.S. foreign policy. Nor does it specify what
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types of activity are intended to be covered by the legal
requirements for covert action. This has called into question
the legality of some covert actions, such as arms transfers,,
undertaken as alternatives to overt programs with express
statutory authority and limitations. Congress should
expressly authorize covert action as a legitimate foreign
policy instrument, subject to clearly defined approval and
reporting requirements.
It is important to emphasize the extent to which the bill
maintains existing law, including the core Hughes-Ryan ban on
CIA covert action without a presidential finding and the
general framework in section 501 of the National Security Act
for reporting to the intelligence committees. The bill makes
no substantive change in the current statutory requirements
for keeping the intelligence activities "fully and currently
informed" of intelligence activities other than special
activities, including "any significant anticipated
intelligence activity" or "significant intelligence failure,"
except to make the President responsible for ensuring
compliance and for reporting illegal activities. The bill
restates the principle in current law that approval of the
intelligence committees is not a condition precedent to the
initiation of any intelligence activity. The bill retains the
definition of "special activities" in the existing statute
(Hughes-Ryan) and Executive order. The requirements to keep
the intelligence committees "fully and currently informed" of
intelligence activities, including special activities and
significant failures, and to provide information upon request
are still subject to a clause recognizing the need to ensure
protection from unauthorized disclosure of classified
information relating to sensitive intelligence sources and
methods and other exceptionally sensitive matters. The bill
also reaffirms the obligation of both Houses of Congress under
current law to establish procedures to protect from
unauthorized disclosure all classified information and all
information relating to intelligence sources and methods
provided to the intelligence committees.
The overall purpose of this bill is to use the lessons of
recent experience to establish a more effective statutory
framework for executive-legislative cooperation in the field
of intelligence. Such legislation is not a guarantee against
conflicts between the branches or abuses of power. It can,
however, help minimize such conflicts and abuses by
emphasizing the mutual obligations of the-President and
Congress and by eliminating unnecessary legal ambiguities that
invite misunderstanding on both sides.
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III. Constitutionality of Prior Notice Provisions
The Administration has voiced particular constitutional
objection to section 503(c) of S. 1721, which, in essence,
requires the President to ensure that prior notice of all
special activities is provided the Congress, unless he
determines that he must initiate such actions before such
notice can be provided, in which case, notice must be
provided within 48 hours of such determination.
In testimony before the Committee on December 11, 1987,
Assistant Attorney General Charles J. Cooper stated "there
may be instances where the President must be able to
initiate, direct, and control extremely sensitive national
security activities. We believe this presidential authority
is protected by the Constitution, and that by purporting to
oblige the President, under any and all circumstances, to
notify Congress of a covert action within a fixed period of
time, S. 1721 infringes on this constitutional prerogative of
the president. . .A President is not free to communicate
information to Congress if to do so would impair his ability
to execute his own constitutional duties. Under some
circumstances, communicating findings to Congress within 48
hours could well frustrate the President's ability to
discharge those duties."
The Committee does not share the view that a statutory
requirement to communicate findings to the Congress, in the
manner prescribed by S. 1721, would frustrate the President's
ability to discharge his constitutional duties. Indeed,
refusal to communicate such information to the Congress
effectively precludes it from discharging its own duties
under the Constitution.
The Constitution expressly confers powers and
responsibilities on both the Executive and Legislative
branches in the area of national security. with respect to
the.Executive, this authority flows from his responsibility
as Commander-in-chief and from the power to make treaties and
appoint ambassadors. The authority of the Executive to
conduct intelligence activities, including special
activities, has been implied as a necessary extension of
these responsibilities. With respect to the Legislative
branch, the Constitution gives Congress the power to declare
war, to raise and support armed forces, to regulate foreign
commerce, and, in the Senate, to consent to treaties and the
appointment of ambassadors. Moreover, it gives the Congress
the sole power to enact laws binding upon the Executive and
to appropriate money for its activities, including
intelligence activities and special activities. A necessary
corollary to these powers and responsibilities is the ability
of Congress to require information from the Executive. This
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is especially so where special activities are concerned,
since they are carried out in secret, and the Executive
branch is the sole repository of knowledge.
Although the Constitution gives both branches powers in
the area of national security, it is largely silent in terms
of how these powers interact with each other. The Committee
accepts the view that where the Constitution gives the
President independent and exclusive authority to act--for
example, the power to "receive ambassadors and other public
ministers"--Congress cannot deny him funds or prohibit him by
statute from carrying out such activities. On the other hand,
where the Constitution does not provide the Executive with
independent and exclusive authority, Congress may regulate
its actions either by enacting statutes which prohibit or
restrict such activities, or by refusing to appropriate
funds, or by restricting or conditioning the use of
appropriated funds, for such activities.
In the view of the Committee, special activities do not
represent an area of independent or exclusive presidential
power under the Constitution. By definition, special
activities are activities of the United States undertaken in
foreign countries to achieve U.S. foreign policy objectives,
and are not publicly acknowledged. As such, they are
extraordinary and sensitive instruments of U.S. foreign
policy. While the Executive may have sole responsibility for
carrying out special activities, the Legislative branch must
appropriate money for them. If they are financed by funds
which have not been appropriated by the Congress, or for
purposes not approved by the Congress, a fundamental part of
the checks and balances incorporated in the Constitution will
have been undermined. Moreover, special activities, by their
very nature, often have particular relevance to the exercise
of congressional powers as specifically enumerated by the
Constitution--
--For example, it is given to Congress to make the
fundamental determination whether the U.S. will be at peace
or at war with particular countries. Special activities may
involve the United States in conducting or supporting armed
hostilities against other countries; or they might lead to
retaliatory measures against the U.S. or its allies;
--The Congress is charged by the Constitution "to raise
and support armies" and "to provide and maintain a Navy."
Special activities on occasion may impact adversely upon U.S.
military readiness, both in terms of manpower and equipment;
--Finally, and fundamentally, the Constitution invests
Congress with "all legislative powers", including the power
to "make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers, and all other
Powers vested by this Constitution in the Government of the
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United States, or in any Department or Officer thereof..."
This responsibility necessarily entails monitoring the
activities of the Executive both in terms of its compliance
with existing law, and to identify areas where new laws may
be needed. Special activities on occasion raise such
concerns. They may have the effect of undermining laws which
have already been enacted; or they may suggest the need for
additional legislative restriction.
In short, Congress has a legitimate and undisputable
need. for information concerning special activities in order
to carry out its responsibilities under the Constitution.
Where such information is withheld by the Executive, the
system of checks'and balances envisioned by Constitution is
rendered inoperative.
It is because special activities may have such serious
consequences for the United States, and bear so directly upon
Congress' own responsibilities, that the Committee believes
Congress must, without exception, be made aware of them. In
all cases except those where time is of the essence, notice
of special activities should be given prior to undertaking
such action in order to provide Congress with an opportunity
to exercise its responsibilities under the Constitution.
When immediate action is required and there is no time to
advise Congress prior to initiating such actions, such notice
must be provided as soon as possible thereafter, again to
maximize Congress' opportunity to.play an effective role with
respect to the execution of such activity. This is the
policy underlying the requirement contained in S. 1721 that
in no case may notice of a special activity be withheld from
the Congress for longer than 48-hours after the activity is
approved.
Notice of covert action findings to the Congress within
forty-eight hours, with proper security safeguards, is
necessary to make the constitutional system of checks and
balances work effectively. Covert actions pose a serious
challenge because they by-pass many of the constitutional
processes intended to ensure the responsible exercise of
governmental powers. Normally, foreign policy initiatives
must withstand the test of public and congressional debate,
under scrutiny from the press, from interested groups, and
from a wide range of experts inside and outside of
government. The result of this debate may be legislation or
budgetary actions by the Congress to reverse or redirect U.S.
policy or to reinforce the President's action through the
development of a consensus in support of his policy. Covert
actions, however, avoid these constitutional checks because
secrecy is needed to achieve their objectives. Notice to
select congressional committees, or to appropriate
congressional leaders, helps to compensate for the absence of
the constitutional mechanisms that ordinarily allow broad
participation in the formulation of national policy.
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The Constitution provides for the shared exercise of
governmental powers in order to prevent arbitrary or ill-
considered actions that harm the national interest. Covert
action with inadequate constitutional checks increases the
risks of misjudgment. While at times the Executive branch
may undertake secret diplomatic negotiations without
consulting the Congress, those negotiations have to take into
account the prospect of public and congressional debate over
the outcome. Even if a President uses the armed forces to
intervene abroad, he must anticipate having to defend his
action publicly. By contrast, in making the decision to
employ covert action, a President and a small inner circle of
advisers may not be inhibited by these usual constitutional
constraints. The dangers of miscalculation increase
accordingly.
A constitutional mechanism is necessary to ensure that
decisions to undertake covert actions are not left solely to
a handful of single-minded executive officials. This can be
accomplished by requiring notice of such decisions to select
committees of the Congress, or to key leaders when
extraordinary precautions are needed to protect secrecy. if
a President decides to implement foreign policy objectives
covertly, he would thereby be obliged to advise a limited
number of experienced elected officials within the Congress
who share responsibilities in the foreign policy area but who
may have different perspectives than the President. By
choosing covert action he may be freed from the normal
constitutional constraints of anticipated public discussion
and wider congressional knowledge; but if so the President
would still have the benefit of a broader range of opinion
from carefully chosen representatives of the House of
Representatives and the Senate.
A proper assessment of this procedure in terms of
constitutional principle calls for an understanding of the
historical evolution of covert action in the American system
of government. Although various forms of covert action date
back to the beginnings of the nation, covert action did not
become a significant and continuing instrument of national
policy until World War II. From the 1940s until the
mid-1970s, however, the Congress allowed covert action to be
conducted by the Executive branch essentially outside the
framework of constitutional checks and balances. When
Congress finally reconsidered its role in this aspect of
national policymaking, the initial impulse through the
Hughes-Ryan Amendment of 1974 was to. require timely notice of
CIA covert actions to all appropriate congressional
committees -- as many as eight for several years in the late
1970s. It became clear, however, that this requirement was
unduly burdensome, even though the Executive branch complied
in all cases except two involving the Iranian hostage crisis
in 1980. Shortly thereafter, the statutory requirement was
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changed to provide for reporting only to the two intelligence
committees, with procedures for notice to the committees or a
group of eight congressional leaders prior to implementation
in all but the most exceptional cases.
Recent experience has vindicated the constitutional
validity of this basic mechanism. Since 1980, the
intelligence committees or the group of eight leaders have
been given prior notice in every case -- including highly
sensitive operations where lives were at risk -- except for
the operations associated with the Iran-Contra affair. In
that situation, where the Executive branch interpreted the
law to mean that it could withhold notification to the
Congress indefinitely, the result was a foreign policy
disaster. Relying on a few advisers who convinced him to
withhold information from the committees and congressional
leaders for nearly a year, the President misjudged the risks
and consequences of covert action. Moreover, in that
atmosphere his subordinates were able to act without the
President's authorization to conduct operations in defiance
of the clear intent of statutory restrictions governing
assistance to the Nicaraguan contras. The lesson is that
Congress now has a constitutional obligation to eliminate the
ambiguities in the reporting requirements so that future
Presidents cannot so readily avoid the checks and balances
necessary in our constitutional system to ensure that
governmental powers are exercised in the national interest.
The Iran-Contra affair brought to light another
constitutional dimension of the covert action notice issue.
The January 1986 presidential finding which authorized the
covert sale of arms to Iran was issued with full knowledge by
the President and his advisers that Congress had by law
restricted overt arms sales to Iran. By authorizing the CIA
to transfer arms covertly under the general authority of the
National Security Act of 1947, the Iran finding evaded those
statutory restrictions. Such use of covert action to avoid
legal limitations on comparable overt action undermines the
ability of Congress to exercise its legislative powers under
Article I of the Constitution. That problem can be resolved
by making clear in the National Security Act that the
decision to pursue a covert alternative must be reported
immediately to the intelligence committees or key
congressional leaders. Permitting exceptions to that
requirement would allow the Executive branch to thwart the
will of Congress and weaken its law-making capabilities under
Article I.
Perhaps the most carefully considered federal appellate
court opinions in recent years on the constitutional issues
raised by intelligence oversight were written by the Court of
Appeals for the District of Columbia Circuit in United States
v. American Tel. & Tel. Co., 551 F.2d 384 (1976) and 567 F.2d
121 (1977). The case involved a House committee's request
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for telephone company documents on FBI electronic
surveillance which the executive claimed to be privileged on
the basis of national security. The Court of Appeals refused
to defer "to executive determinations in the area of national
security when the result of that deference would be to impede
Congress in exercising its legislative powers." 551 F.2d at
392. The Court urged negotiation of a settlement, and when
no agreement was reached, the Court re-emphasized the need
for an accomodation of interests: "Given our perception that
it was a deliberate feature of the constitutional scheme to
leave the allocation of powers unclear in certain situations,
the resolution of conflict between the coordinate branches in
these situations must be regarded as an opportunity for a
constructive modus vivendi, which positively promotes the
functioning of our system. The Constitution contemplates
such accomodation." 567 F. 2d at 128-133.
In following this judicial guidance, S. 1721, as
reported by the Committee, seeks to accomodate the
constitutional interests of both branches and "positively
promote the functioning" of the constitutional system. The
Executive branch interest in secrecy is met by giving the
President the ability to limit notice to four leaders of the
House and Senate in the most extreme cases where
extraordinary secrecy is vital to the success of an
operation. At the same time, the bill establishes the
unqualified principle of notice to Congress which is
essential to the effective functioning of the constitutional
system of checks and balances. And it makes clear that
Congress will not permit the erosion of its law-
making powers under Article I by unilaterial Executive branch
recourse to covert action that evades statutory restrictions.
The Committee emphasizes that the requirement for notice
does not preclude the President from initiating such actions
as he believes are necessary to fulfill his constitutional
responsibilities. Nor does the Committee insist that its
approval be required before such activities may be
undertaken. The President would be free to carry out any
special activity he determined was necessary, even in the
face of unanimous disapproval from the Committee. In short,
the Committee does not seek a veto, only an effective voice
in the process.
In particular, the Committee rejects the notion that the
risk of disclosure justifies the Executive branch'
withholding such notice entirely from the Congress where
sensitive cases are concerned. There is no support for this
assertion to be found in the Constitution, nor is this
supported by past practice. The intelligence committees
recognize the peculiar sensitivity of special activities for
the nation's security. Such activities heretofore reported
to these committees have not been disclosed to the public,
and stringent security procedures insure against such
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3b
disclosures in the future. Moreover, the bill itself gives
the President the option of limiting notice of special
activities in extraordinary circumstances to four
congressional leaders who have been selected by Congress as a
whole: the majority and minority leaders of the Senate, and
the Speaker and minority leader of the House of
Representatives. In short, the Committee is willing, in
cases of extraordinary sensitivity, to minimize the numbers
of people who must know, provided Congress is not altogether
removed from the process.
To the extent the Committee may, after notice has been
given, wish to regulate such activities through the
authorization of funds, or by enacting particular
legislation, it is only carrying out its responsibilities
under the Constitution. The President cannot contend that
the exercise of such authority by the Congress in this area
is any more an intrusion upon his constitutional
responsibilities than similar actions by the Congress in any
other area of shared constitutional responsibility.
In conclusion, each branch of the Government is entitled
to assert its own views of the Constitution as they bear upon
proposed legislation. With respect to special activities,
the Administration has asserted its view that in certain
circumstances, the President, to satisfy his responsibilities
under the Constitution, must retain the option to keep
Congress in the dark, even though such a decision, in effect,
prevents Congress from exercising its own constitutional
responsibilities. Indeed, it contends that current law gives
the President this option. The Committee rejects this
assertion in the only manner available to it--by recommending
a change to the law which makes notice mandatory, regardless
of the circumstances. Should such a requirement become law,
the President could no longer contend that a decision to keep
Congress in the dark can be taken with Congress' own explicit
acquiescence.
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SECTION-BY-SECTION ANALYSIS
Section 1. Repeal of Hughes-Ryan Amendment
Section 1 of the bill repeals the Hughes-Ryan Amendment
of 1974 so as to consolidate intelligence oversight
provisions at a single place in the law and expand the
requirement for presidential approval of covert action to all
entities of the U.S. Government (to parallel Executive order
12333).
Current statutory provisions for intelligence oversight
include the general requirements to inform the House and
Senate Intelligence Committees in Title V of the National
Security Act of 1947, as amended in 1980, and the requirement
of presidential approval for CIA covert action in section 662
of the Foreign Assistance Act of 1961, as amended in 1974 (22
U.S.C. 2422 -- the Hughes-Ryan Amendment). The differences
in language and scope between these provisions, which appear
at different places in the statutes, have been a source of
unnecessary confusion and disagreement between the branches.
Therefore, section 1 of the bill would repeal the Hughes-Ryan
Amendment in order to substitute a new presidential approval
requirement as an integral part of a more coherent and
comprehensive statutory oversight framework for covert action
(or "special activities") and other intelligence activities
to be set forth at one place in the law. The superseding
presidential approval requirement is contained in the
proposed new sections 503 and 504(d) of the National Security
Act of 1947, discussed below.
This change is intended to bring the statutes more
closely into line with the current Executive order which
requires presidential approval for covert action by any
component of the U.S. Government, not just by the CIA.
Section 3.1 of Executive order 12333 (December 4, 1981)
states that "the requirements of section 662 of the Foreign
Assistance Act of 1961, as amended (22 U.S.C. 2422), and
section 501 of the National Security Act of 1947, as amended
(50 U.S.C. 413), shall apply to all special activities as
defined in this Order." Replacing Hughes-Ryan, which applies
only to the CIA, with a comprehensive presidential approval
requirement for covert action (or "special activities") by
any U.S. Government entity gives statutory force to a policy
that has previously been a matter of Executive discretion.
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Section 2. Oversight of Intelligence Activities
Section 2 of the bill would replace the existing section
502 of the National Security Act of 1947 with three new
sections that prescribe, respectively, general provisions for
oversight of all intelligence activities, reporting of
intelligence activities other than special activities, and
presidential approval and reporting of special activities.
SECTION 501. GENERAL PROVISIONS
The new section 501 of Title V of the National Security
Act of 1947 would specify the general responsibilities of the
President and the Congress for oversight of intelligence
activities and reaffirm the basic principles in current law
for keeping the House and Senate intelligence committees
fully and currently informed of intelligence activities,
including any significant anticipated intelligence activity,
without requiring approval by the committees.
(a) Presidential Duty to Ensure Congress Informed
Subsection (a) would place a statutory obligation upon
the President to ensure that the Senate Select Committee on
Intelligence and the House Permanent Select Committee on
Intelligence (referred to in the bill as the "intelligence
committees") are kept fully and currently informed of the
intelligence activities of the United States, including any
significant anticipated intelligence activity, as required by
this title. Current law imposes such duties on the DCI and
agency heads, but not on the President himself. Overall
responsibility should be vested in the President because of
the importance and sensitivity of secret intelligence
activities that may affect vital national interests, and
because the President, who exercises authority over all
departments, agencies and entities in the Executive branch,
may have unique knowledge of such activities. It is
contemplated that the President would carry out this
statutory responsibility by promulgating policies applicable
to the Executive branch which would implement the statutory
requirements contained in the bill. Such policies and any
changes therein should be reported to the intelligence
committees.
The specific terms and conditions for keeping the
committees "fully and currently informed" are those set forth
in sections 502 and 503, discussed below. The requirement
found in existing law that the intelligence committees be
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advised of "significant anticipated intelligence activities"
is carried over in this subsection, and has the meaning
discussed below with respect to the same term in section 502
and with respect to the prior notice provision in subsections
503(c)(1) and 503(d).
Subsection (a) would also retain the qualification in
current law that nothing contained in the prior notice
requirements shall be construed as requiring the approval of
the intelligence committees as a condition precedent to the
initiation of such activities. The parallel provision of
existing law is clause (A) of paragraph 501(a)(1).
Subsection (a) contains a second proviso, not expressly
found in existing law, which emphasizes that nothing
contained in the bill shall be construed as a limitation upon
the power of the President to initiate an intelligence
activity in a manner consistent with powers conferred by the
Constitution. This provision is intended to make clear that
the requirements contained in the bill to keep the
intelligence committees advised of "significant anticipated
intelligence activities" (emphasis added) in section 502,
below, and to give prior notice of special activities in
accordance with subsections 503(c)(1) and 503(d), below,
should not be construed as a limitation upon the power of the
President to initiate such activities in a manner consistent
with his powers under the Constitution. This maintains the
distinction between acting and reporting. This proviso is
not, however, intended to affect in any way any other
requirement contained in the bill, including the requirements
for presidential authorization in subsection 503(a) and the
requirements for notice to appropriate members of Congress
within 48 hours of presidential authorization in paragraphs
503(c)(2)-(4).
Although the bill itself does not draw a distinction in
terms of the approval and reporting of special activities in
peacetime, and approval and reporting of such activities when
a state of war has been declared by the Congress, the
Committee recognizes that the President's constitutional
responsibility as commander-in-chief would require greater
flexibility in a wartime setting and that appropriate
adjustments would be necessitated.
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(b) Illegal Activities
Subsection (b) would require the President to ensure
that any illegal intelligence activity is reported to the
intelligence committees,'as well as any corrective action
that has been taken or is planned in connection with such
illegal activity. Under current law, paragraph 501(a)(3)
imposes this duty on the Director of Central Intelligence and
agency heads, subject to certain qualifications. The purpose
of this revised provision. is to place an unqualified
statutory obligation on the President to ensure reporting of
such matters to the committees. It is contemplated the
President would carry out this statutory responsibility by
promulgating policies applicable to the Executive branch
which would implement the statutory requirements in the bill.
The definition of illegal activity remains unchanged, but the
responsibility to ensure the reporting of such activity is
shifted to the President.
The President should establish procedures within the
Executive branch for review of intelligence activities that
may have been illegal and for reporting to the intelligence
committees upon confirmation that the activity was a
probable violation of the Constitution, statutes, or
Executive Order 12333 or successor orders. The current
provision requires the reporting of illegal activity "in a
timely fashion.." This language is deleted because of its
ambiguity. The intent is that the committees should be
notified whenever a probable illegality is confirmed under
the procedures established by the President.
It is recognized that the President may require time to
investigate an activity to determine that a probable
violation has occurred before reporting to Congress. The
procedures will facilitate reporting to the committees
appropriate to their oversight responsibilities while
protecting the integrity of the criminal investigative
process (including grand jury secrecy) and the rights of
potential defendants and witnesses. The procedures shall
establish criteria for determining whether a probable
violation has been confirmed, and may take into account the
need to protect sensitive intelligence sources and methods,
so long as all germane evidence of the violation is reported.
These procedures, and any changes thereto, shall be reported
to the intelligence committees.
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(c)-(f) Other General Provisions
Subsections (c) through (e) would retain provisions,of
existing law. Subsection (c) is identical to the current
subsection 501(c) that authorizes the President and the
intelligence committees to establish procedures to carry out
their oversight obligations. With the exception of a minor
technical change having no substantive effect, subsection (d)
is the same as the current subsection 501(d) that requires
the House and Senate to establish procedures to protect the
secrecy'of information furnished under this title and to.
ensure that each House and its appropriate committees are
advised promptly of relevant information. Subsection (e)
repeats the current subsection 501(e) which makes clear that
providing information to the intelligence committees does not
constitute unauthorized disclosure of classified information
or information relating to intelligence sources and methods
under this Act.
. Subsection (f) states that the term "intelligence
activities," as used in this section, includes, but is not
limited to, "special activities," as defined in subsection
503(e), discussed below.
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SECTION 502. REPORTING INTELLIGENCE ACTIVITIES OTHER THAN
SPECIAL ACTIVITIES
The new section 502 is intended to maintain the the same
reporting requirements imposed by current law insofar
intelligence activities other than special activities are
concerned. This distinction between special activities and
other intelligence activities is discussed more fully with
respect,to section 503, below.
Section 502 would continue to impose two duties upon the
Director of Central Intelligence (DCI) and the heads of all
departments, agencies and other entities of the United States
involved in intelligence activities. Both duties would
continue to be conditioned upon the preambular clause
beginning the section which recognizes the need to protect
sensitive classified information, discussed more fully below.
Fully and Currently Informed
The first duty is set forth in subsection 502(a) which
requires the officials designated in the introductory clause
to keep the intelligence committees fully and currently
informed of all intelligence activities, other than special
activities as defined in subsection 503(e), which are the
responsibility of, are engaged in by, or are carried out for
or on behalf of, any such department, agency, or entity of
the United States engaged in intelligence activities,
including any significant anticipated intelligence activity
and significant failures. This maintains obligations imposed
by current law. The requirement to report significant
anticipated activities means, in practice, that the
committees should be advised of important new program
initiatives and specific activities that have major foreign
policy implications. The obligation to report significant
intelligence failures is contained in subsection 501(a)(3) of
current law. In addition, the bill deletes the special
procedure for prior notice of intelligence activities other
than special activities to eight congressional leaders in
clause (B) of paragraph 501(a)(1) of current law, because it
was primarily intended to apply to special activities, to be
governed by section 503, discussed below.
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In carrying out these obligations, it is not intended
that where multiple agencies or entities are involved in
carrying out a particular activity, or where multiple levels
of bureaucracy are involved in approving a particular
activity, that duplicative reports need be made to the
committees by every element of the Government so involved.
It is intended that the DCI and the heads of all departments,
agencies or entities involved in intelligence activities all
be obligated in terms of ensuring that the committees are
kept fully and currently informed. But duplicative reports
of the same activity are not required. Where lines of
authority and command exist between such officials, the
official of highest authority may represent subordinate
agencies or entities to the committees. In this respect,
there is no change from practice under existing law.
As mentioned above, this requirement is subject to the
preambular clause regarding the protection of sources and
methods, discussed below.
Furnishing Pertinent Information
Subsection 502(b) would impose a second obligation upon
the officials designated in the introductory clause to
furnish the intelligence committees any information or
material concerning intelligence activities (other than
special activities) which is within their custody or control,
and which is requested by either of the intelligence
committees in order to carry out its authorized
responsibilities. This provision maintains existing law, and
is subject to the preambular clause regarding the protection
of sources and methods, discussed below.
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Protection of Sensitive Sources and Methods
The obligations imposed by this section to keep the
intelligence committees fully and currently informed and to
provide information upon request are to be carried out to the
extent consistent with due regard for the protection from
unauthorized disclosure of classified information relating to
sensitive intelligence sources and methods and other
exceptionally sensitive matters. The language is similar to
the second preambular clause in subsection 501(a) of current
law, which imposes duties "to the extent consistent with due
regard for the protection from unauthorized disclosure of
classified information and information relating to
intelligence sources and methods." The proposed new language
more accurately reflects and is intended to have the same
meaning as the legislative history of the similar preambular
clause in existing law.- It is intended to apply only to
classified information relating to sensitive intelligence
sources and methods and to "other exceptionally sensitive
matters." This latter phrase is intended to refer to other
extremely sensitive categories of classified information such
as information concerning the operational details of military
deployments, and extraordinarily sensitive diplomatic
contacts, which the intelligence committees do not routinely
require to satisfy their responsibilities.
One change is made in existing law. The first
preambular clause in the current subsection 501(a) would be
deleted. It imposes obligations "[t]o the extent consistent
with all applicable authorities and duties, including those
conferred upon the Executive and Legislative branches of
Government." This clause creates unnecessary ambiguity in
the law, because it has been interpreted by some as
Congressional acknowledgment of an undefined constitutional
authority of the Executive branch to disregard the statutory
obligations. Recent experience indicates that legislation
qualifying its terms by reference to the President's
constitutional authorities may leave doubt as to the will of
Congress and thus invite evasion. Legitimate Executive
branch concerns are adequately met by the provision for due
regard for protection of certain sensitive classified
information, discussed above. Moreover, the absence of the
current preambular clause does not affect the ability of the
Executive branch to object to the production of information
based upon the assertion of the constitutional claim of
Executive privilege, to the extent that such privilege exists
in law.
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SECTION 503. PRESIDENTIAL APPROVAL AND REPORTING OF.SPECIAL
ACTIVITIES
Special activities (or covert actions) raise
fundamentally different policy issues from other U.S.
intelligence activities because they are an instrument of
foreign power. Indeed, constitutional authorities draw a
distinction between Congressional power to restrict the
gathering of information, which may impair the President's
ability to use diplomatic, military, and intelligence
organizations as his "eyes. and ears," and Congressional power
to regulate covert action that goes beyond information
gathering. The Committee does not accept the view that such
special activities are an exclusive presidential function.
Congress clearly has the constitutional power to refuse to
appropriate funds to carry out special activities and may
impose conditions on the use.of any funds appropriated for
such purposes.
Under current law, however, the Congressional mandate is
ambiguous, confusing and incomplete. There is no express
recognition in statute of. the President's authority to
conduct special activities; the requirement for presidential
approval of special activities applies only to the CIA; and
presidential approval procedures are not specified. There is
arguably a question whether Congress has intended that the
President have authority to conduct special activities that
may violate other applicable statutes. The statutory
requirements for informing the intelligence committees of
special activities are subject to misinterpretation, and the
scope of activities covered by the law is undefined. This
bill seeks to remedy these deficiencies so that covert
actions are conducted with proper authorization in the
national interest as determined by the elected
representatives of the American people -- the President and
the Congress.-- through a process that protects necessary
secrecy..
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(a) Presidential Findings
Subsection (a) would provide express statutory authority
for the President to authorize the conduct of special
activities by departments, agencies or entities of the United
States, including the Executive Office of the President, only
when he determines such activities are necessary to support
the foreign policy objectives of the United States and are
important to the national security of the United States.
This determination must be set forth in a "finding" that
meets certain conditions. The importance of this requirement
is underscored by section 3 of the bill, discussed later,
which prohibits expenditure of funds available to the U.S.
Government to initiate any special activity unless and until
such a presidential finding has been signed or otherwise
approved in accordance with section 503.
The current presidential approval provision in the
Hughes-Ryan Amendment (22 U.S.C. 2422) requires a finding by
the President "that each such operation is important to the
national security of the United States." The proposed new
subsection 503(a) would require the President to make an
additional determination that the activities "are necessary
to support the foreign policy objectives of the United
States." This conforms the statute to the Executive branch
definition of "special activities" in section 3.4(h) of
Executive order 12333 which refers to "activities conducted
in support of national foreign policy objectives abroad."
The President should determine not only that the operation is
important to national security, but also that it is
necessary to support U.S. foreign policy objectives. It is
intended that the intelligence committees will establish
procedures to obtain an analysis of this issue with respect
to each finding as part of their routine oversight functions.
In addition to reflecting these presidential
determinations, findings would have to meet five statutory
conditions.
First, paragraph 503(a)(1) would require that each
finding be in writing, unless immediate action is required of"
the United States and time does not permit the preparation of
a written finding, in which case a written record of the
President's decision would have to be contemporaneously made
and reduced to writing as soon as possible but in no event
more than 48 hours after the decision is made. This
requirement is intended to prevent a President's subordinate
from later claiming to have received oral authorization
without further substantiation than the subordinate's
undocumented assertion. It is also consistent with the
President's current policy of requiring written findings.
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Second, paragraph 503(a)(2) would restate the existing
legal ban on retroactive findings. It would provide that a
finding may not authorize or sanction special activities, or
any aspects of such activities, which have already occurred.
This is also consistent with the President's current policy.
Third, the first clause of paragraph 503(a)(3) would
require that each finding specify each and every department,
agency, or entity of the United States Government authorized
to fund or otherwise participate in any significant way in
the special activities authorized by the Finding.
Specification of additional participating entities may be
done in a subsequent amending document approved in the same
manner as the original finding. This requirement is
.consistent with section 1.8(e) of Executive order 12333 which
states that no agency except the CIA in peacetime may conduct
any special activity "unless the President determines that
another agency is more likely to achieve a particular
objective". It is intended that the finding identify all
entities of the Government who are authorized to provide
other than minimal, routine and incidental support to the
special activities subject to the finding. For example, it
is not intended that departments, agencies, or entities which
provide routine, incidental and minimal
administrative, personnel, or logistical support to the
agency primarily responsible for the special activity in
question need be named in the finding itself. It should be
emphasized that the term "significant" is intended to exclude
from identification in a finding only de minimus
participation, such as permitting use of secure
communications systems, refueling or servicing aircraft,.
maintenance of equipment, obtaining overflight clearances or
landing rights, which support is routinely provided among
agencies for other purposes. However, where such support is
not routinely provided, the department, agency, or entity
providing such support must be identified in the finding
itself. In arriving at this determination, the number of
employees at a particular department, agency, or entity who
are to be involved in the special activity concerned is not a
determining factor; rather, it is the nature of such
involvement as it relates to the conduct of the special
activity. Moreover, it is intended that the intelligence
committees should pursue in detail the involvement of each
department, agency, or entity with respect to each finding to
ensure that the spirit, as well as the letter, of this
provision are satisfied. Where an "entity" is a subordinate
component of an "agency" or "department", or where an
"agency" is a subordinate component of a "department", the
highest level organization shall be named in the finding.
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The proviso at the end of paragraph 503(a)(3) imposes a
further requirement that any employee, contractor, or
contract agent of the United States Government who is
directed to participate in any way in a special activity must
be subject either to the policies and regulations of the
Central Intelligence Agency, or to the policies and
procedures of the parent agency with whom he or she is
affiliated. It is the primary intent of this provision to
ensure that any government employee or contractor who is
utilized to carry out or support a special activity is bound
by appropriate policies and regulations which ensure
compliance with applicable law and with Executive policy.
Where the parent agency of the employee or contractor
concerned is responsible for the conduct of, or support to, a
special activity, there should be agency regulations to
govern their participation. where the parent agency is
assigned primary responsibility for conducting a special
activity, there should be overall agency policies governing
this type of activity. Where the parent agency is assigned a
support role, there similarly should be agency regulations
which govern the provision of support to other agencies.
Indeed, such support may be governed by agency regulations
having nothing to do with special activities per se, so long
as they ensure compliance by the employee or contractor with
applicable law and Executive policy. Finally, there should
be no circumstance where an employee or contractor of one
department or agency is detailed to, or placed under the
operational control, another department or agency, and is
uncertain whether the policies of his parent agency apply, or
the policies of the gaining agency. This should be a matter
of agreement between the two agencies in all cases, should be
consistent with and pursuant to established regulations and
procedures, and should be made clear to the employee or
contractor concerned.
Fourth, paragraph 503(a)(4) would require that each
finding specify whether it is contemplated that any third
party, which is not an element of, contractor of, or contract
agent of the United States Government, or is not otherwise
subject to U.S. Government policies and regulations, will be
used to fund or otherwise participate in any significant way
in the special activity concerned, or will be used to
undertake the special activity concerned on behalf of the
United States. One purpose of this provision is to require
the President to approve specifically the use of third
countries or private parties outside normal U.S. government
controls to implement a special activity in any significant
way. The finding itself need state only whether such use is
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contemplated, without actually identifying the third party
(or parties) concerned. Additional information concerning
the involvement of such third parties would be provided to
the intelligence committees in accordance with subsection
503(b), discussed below, as required.
As used in this paragraph, the term "significant" is
intended to encompass all but routine, minimal support to
U.S. Government activities, which are incidental to the
conduct and successful completion of the special activity in
question. For example, where a third country routinely
provides overflight clearances or landing rights to U.S.
aircraft for a variety of purposes, its providing such
clearances or landing rights for an aircraft involved in a
special activity would not be considered "significant," in
the context of the requirement for acknowledgment in a
finding.
Fifth, paragraph 503(a)(5) would maintain current
Executive order restrictions that preclude a finding from
authorizing any action intended to influence domestic
political processes, public opinion, policies or media. This
prohibition is taken from the definition of "special
activities" contained in section 3.4(h) of Executive order
12333, and has been longstanding policy within the
Government. While it is recognized that activities intended
to have their impact abroad may be reported in the U.S.
media, it is intended that no special activity may have as
its purpose influencing political activity, policy, or media
within the United States by instituting or influencing events
which are undertaken either inside or outside the United
States.
Sixth, paragraph 503(a)(6) would establish that a
Finding may not authorize any action that would violate any
statute of the United States. This is similar to section 2.8
of Executive order 12333, which states that nothing in that
Order "shall be construed to authorize any activity in
violation of the Constitution or statutes of the United
States." Current CIA policy is to avoid violation of any
federal statutes which apply to special activities, either
directly or which apply to government agencies in general.
However, CIA possesses statutory authorities, to carry out its
authorized functions that are unavailable to other government
agencies. This provision is not intended to require that
special activities authorized in Presidential findings need
comply with statutory limitations which, by their own terms,
apply only to another U.S. Government program or activity.
For example, a statutory restriction on the overt Defense
Department arms transfer program would not apply to covert
CIA arms transfers authorized in a finding, even if the CIA
obtained the arms from the Department of Defense under the
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Economy Act. Similarly, statutes which may prohibit conduct
by private parties may not be applicable to the CIA or other
government agencies because of the absence of the mens rea
necessary to the offense. For example, the Justice
Department takes this view with respect to the Neutrality
Act. In short, there may be special activities undertaken by
the CIA which do not violate U.S. statutes because the
statutes themselves do not apply to the CIA. Nonetheless,
the effect of undertaking such an activity would,
if disclosed, undermine the public policies set
fortn in such statutes. In theory, there may be rare
circumstances where this result is justified. However, any
such case deserves intense scrutiny by the Executive branch,
and by the intelligence committees, in their respective
reviews of special activities. It is intended that the
intelligence committees will establish procedures to obtain
an analysis of the impact, if any, of existing statutes on
each proposed special activity as part of their routine
oversight functions.
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(b) General Reporting Provisions Relating to Special
Activities
Subsection 503(b) establishes the general requirements
to govern reporting of special activities to the intelligence
committees. Its structure parallels the structure set forth
in section 502 for the reporting of intelligence activities,
other than special activities. The reporting requirements
are imposed upon the DCI, and the head of any department,
agency, or entity of the Government involved in a special
activity.
Fully and Currently Informed
The first reporting obligation, set forth in subsection
503(b)(1), is to keep the intelligence committees fully and
currently informed of all special activities which are the
responsibility of, are engaged in by, or carried out for or
on behalf of, any department, agency, or entity of the United
States Government, including significant failures. This
provision maintains the obligations imposed by current law,
although the phrase "including significant failures" has been
extracted from the general requirement in paragraph 501(a)(3)
of current law, and applied specifically to special
activities. This parallels the addition of this same phrase
to section 502, for the same reasons as explained above.
In carrying out this obligation, it is not intended that
where multiple agencies or entities are involved in a
particular special activity, or where multiple levels of
bureaucracy are involved in approving a particular special
activity, duplicative reports need be made to the committees
by every element of the Government so involved. It is
intended, however, that the DCI and the heads of departments,
agencies and entities involved in such activities each be
obligated to ensure that the committees are kept fully and
currently informed. But duplicative reports of the same
involvement are not required. where lines of authority and
command exist between such officials, the official of highest
authority may represent subordinate agencies or entities to
the committees. In this respect, there is no change from
practice under current law.
The requirement to keep the intelligence committees
fully and currently informed is subject to the preambular
clause regarding the protection of certain classified
information, which is identical to the preambular clause in
section 502, and which bears the same meaning, as explained
above.
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It is also to be noted that there is no specific
requirement in subsection (b)(1) to apply the formulation
"significant anticipated intelligence activity" to special
activities as under current law. This becomes redundant in
view of the detailed reporting requirements for special
activities set forth in subsection 503(c), below.
Furnishing Pertinent Information
Subsection 503(b)(2) would' continue to impose a second
obligation upon the officials designated in the introductory
clause to furnish the intelligence committees any information
or material concerning special activities which is in their
possession, custody or control, and which is requested by
either of the intelligence. committees in order to carry out
its authorized responsibilities. This requirement maintains
the obligations imposed by current law.
The requirement to furnish pertinent information
requested by the intelligence activities concerning special
activities is subject to the preambular clause regarding the
protection of certain classified information, which is
identical to the preambular clause in section 502, and which
bears the same meaning, as explained above. It also has the
same intent as the second preambular clause in subsection
501(a) of current law. Moreover, as discussed above with
respect to section 502, the absence to the first preambular
clause in the current subsection 501(a) does not affect the
ability of the Executive branch to object to the production
of information based upon the assertion of the constitutional
claim of Executive privilege, to the extent that such
privilege exists in law.
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(C) Notice of Findings
Subsection 503(c) sets forth additional detailed
requirements for reporting special activities to the
Congress. This subsection, in effect, both replaces and
supplements requirements of current law.
Prior Notice
Subsection 503(c)(1) sets forth the requirement that in
ordinary circumstances the intelligence committees will be
advised of all findings or determinations made pursuant to
subsection 503(a), prior to the initiation of the special
activity in question, but in no event later than 48 hours
after such finding is signed, or determination made. The
President is made responsible for ensuring that this is done.
Moreover, it should be emphasized that no actions
whatsoever may be taken to implement a special activity prior
to the time the finding is signed or the oral determination,
pursuant to paragraph 503(a)(1), is made. This is not
intended, however, to preclude necessary planning for such
activities, including gathering intelligence and other
information to determine whether such activities are
feasible.
The subsection does recognize certain exceptions to this
general requirement of.notice to the intelligence committees,
as set forth in subsections (2) through (4), explained below.
Notice After the Initiation of a Special Activity
Subsection 503(c)(2) provides the only exception to the
requirement for prior notice to the Congress, established in
subsection 503(c)(1), explained above. It permits the
President on rare occasions when time is of the essence, to
initiate a special activity without first reporting it to the
two intelligence committees, but, in such circumstances, the
subsection requires that notice be provided within 48 hours
after the finding authorizing the activity is signed, or the
determination is made, pursuant to subsection 503(a).
Notice to Eight Members of Congress
Subsection 503(c)(3) permits the President, when he
determines it essential to meet extraordinary circumstances
affecting vital interests of the United States, to provide
the notice required under either subsection (c)(1) or (c)(2)
to the chairmen and ranking minority members of the
intelligence committees, the Speaker and minority leader of
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the House of Representatives, and the majority and minority
leaders of the Senate. In other words, the President could
utilize this option either in giving prior notice of a
special activity, or in giving notice after initiation, or in
giving notice of significant changes.to an ongoing special
activity, but within the 48 hour limit established by
subsection (c)(2). In such case, the President must provide
a statement of the reasons for limiting such notice at the
time it is made. This alternative is available to the
President under current law.
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DD
Notice to Four Congressional Leaders
Subsection 503(c)(4) provides the President with an
additional option of limiting the notice required by
subsection (c)(1) or (c)(2) to the Speaker and minority
leader of the House of Representatives, and the majority and
minority leaders of the Senate. He may invoke this
alternative when he determines that limiting notice in this
manner is essential to meet extraordinary circumstances
affecting the most vital security interests of the United
States and the risk of disclosure constitutes a grave risk to
such vital interests. It is intended that this provision be
invoked only where the President has reason to believe that
disclosure would have such dire consequences for the security
of the United States that notice to Congress must be
temporarily limited to the two leaders of each House. As
with subsection (c)(3), this. form of alternative notice may
be utilized either in providing prior notice before the
initiation of such activities, or in providing notice after
initiation but before the expiration of 48 hours from the
time the finding is signed or the oral determination,
pursuant to subsection 503(a), is made.
When the President invokes this option, he is required
to provide to the four leaders, at the time they are
notified, a statement of the reasons explaining why notice to
the intelligence committees (to include notice to the
chairmen and ranking minority members) is not otherwise being
provided in accordance with subsection (c)(1). This
subsection also requires the President, once having invoked
this alternative, personally to reconsider on a weekly basis
the reasons for continuing to withhold notice from the
intelligence committees consistent with this subsection. If
he determines that such notice should continue to be
withheld, the President must provide a statement on a weekly
basis to the four leaders to whom notice was given,
confirming his decision, until such time as the intelligence
committees are notified of the special activity in question.
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D10
Copies of Findings
Subsection (c)(5) requires that when notice of special
activities is provided the intelligence committees under
subsections (c)(1), (c)(2), or (c)(3) (by notification of the
chairmen and ranking minority members), that a copy of the
finding, signed by the President, will be provided to the
chairman of each intelligence committee. When the finding is
orally approved pursuant to subsection 501(a), and is
reported orally to the Congress pursuant to subsection
503(c), this means that a copy of the finding must
nonetheless be provided to the chairmen of the intelligence
committees once it is reduced to writing.
This subsection also provides that where the President
temporarily limits notice to the four congressional leaders
pursuant to subsection (c)(4), that a copy of the finding be
shown to the four leaders at the time they are notified. If
such finding has not been reduced to writing at the time the
notice is given, it is intended that a copy of the finding,
signed by the President, be shown to them as.soon as possible
-thereafter. Further, it is contemplated that once notice is
provided the intelligence committees, a copy of the finding,
signed by the President, be provided the chairman of each
intelligence committee.
(d) Notice of Significant Changes
Subsection 503(d) sets forth the requirements to keep
the Congress advised of significant changes to special
activities which have been previously authorized and
reported. It provides that all such reports be made in the
same manner as the original finding was reported in
accordance with subsection 503(c), permitting the President
the same options as discussed above with respect to such
subsection.
As with the reporting of findings in general, the
President is made personally responsible for ensuring that
significant changes are reported. It is contemplated that
the President would carry out this responsibility by
promulgating policies applicable to the Executive branch
which would implement the statutory requirements in the bill.
Two types of significant changes are expressly mentioned
in the subsection. The first pertains to significant changes
in a previously-approved finding. This would occur when the
President authorizes a change in the scope of a
previously-approved finding.to authorize additional
activities to occur. The second type of change specified in
this subsection pertains to significant undertakings pursuant
to a previously-approved finding. This would occur when the
President authorizes a significant activity under a
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 S7
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previously-approved finding without changing the scope of the
finding concerned.
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(e) Definition of 'Special Activity'
Subsection 503(e) contains the definition. of the term
"special activity", as used in the bill. It is intended, as
written, to reflect and incorporate existing law and
mutually-agreed upon practice.
Under current law, i.e. the Hughes-Ryan Amendment (22
U.S.C. 2422), the CIA is prohibited from expending any
appropriated funds for "operations in foreign countries,
other than activities intended solely for obtaining necessary
intelligence", unless pursuant to a presidential finding.
This provision, and, in particular, the phrase
"operations in foreign countries", was never intended by
Congress to require a Presidential finding for all CIA's
overseas activities other than collection. It has been
recognized both by the Executive branch and the intelligence
.committees that certain CIA activities abroad, such as
certain counterintelligencce activities, routine assistance
to the Department of State in performing certain diplomatic
or overt initiatives, and certain routine assistance to the
Department of Defense or other agencies under the Economy
Act, are not "operations in foreign countries", requiring
presidential findings.
In attempting to define what activities were included
within the ambit of Hughes-Ryan, the Executive branch with
the acquiescence of the intelligence committees, has relied
in part upon the definition of "special activities" contained
in section 3.4(h) of Executive order 12333, which applies to
both CIA and other departments and agencies of the
Government. The Executive order defined "special activities"
(in pertinent part) as any activity "in support of national
foreign policy objectives abroad which is planned and
executed so that the role of the United States Government is
not apparent or acknowledged publicly, and functions in
support of such activity ...but which does not include
diplomatic activities or the collection and production of
intelligence or related support activities." To the extent
that the Executive order definition excluded activities from
the requirement of a presidential finding that were not
within the intended scope of Hughes-Ryan, it was cited as
justification for not applying the Hughes-Ryan language to
CIA under the types of circumstances mentioned above.
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The CIA and the intelligence committees recognize that a
provision in an Executive order cannot legally override the
requirements of a statute, and that, indeed, there are CIA
activities abroad which would not meet the standards of the
Executive order definition but which would meet the
requirements of Hughes-Ryan (e.g., covert CIA support of the
operations of other U.S. agencies which are apparent or
publicly acknowledged once carried out). Nevertheless, the
CIA and the intelligence committees. regard the definition of
"special activities" in Executive Order 12333 as a useful
guide for the interpretation of the Hughes-Ryan language
requiring presidential findings for CIA "operations".
Indeed, the intelligence committees regard it as bringing any
CIA covert action conducted within the United States in
support of objectives abroad within the ambit of a
requirement for a finding, when, in fact, the Hughes-Ryan
Amendment did not impose a requirement for a presidential
finding in such circumstances. In an effort to reflect and
incorporate this current policy and practice, the definition
of "special activity" in subsection 503(e) contains two
parts. Paragraph (1) contains the language previously
contained in the Hughes-Ryan Amendment with respect to the
CIA. Paragraph (2) contains the pertinent language from the
definition of "special activities" in Executive order 12333.
Paragraph (1) applies to CIA operations in foreign
countries, other than activities intended solely for
obtaining necessary intelligence. It applies only to the CIA
and does not apply to any other department, agency, or entity
of the Government.
Paragraph (2) applies to all departments, agencies, or
entities of the U.S. Government, including, to the extent not
inconsistent with paragraph (1), the CIA. For operations of
any department, agency or entity of the U.S. Government,
special activities are any activity conducted in support of
national foreign policy objectives abroad which is planned
and executed. so that the role of the U.S. Government is not
apparent or acknowledged publicly, and functions in support
of such activity, but which does not include diplomatic
activities or the collection and production of intelligence
or related support activities. This part of the definition
covers all covert activities undertaken by the United States
to support its foreign policy objectives towards other
countries regardless of the department, agency, or element of
the U.S. Government used to carry out such activities. While
it applies to those activities conducted in support of
national foreign policy objectives abroad, the term
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60
encompasses those activities conducted by the U.S. Government
within the territory of the United States so long as they are
intended to support U.S. objectives abroad. (Note that
section 503(a)(5) maintains the prohibition from the current
Executive order definition of "special activities" against
any action intended to influence domestic political
processes, public opinion policies or media.)
Paragraph (2) applies to the CIA to the extent not
inconsistent with paragraph (1). This means that CIA may
cite the definition in subsection (2), taken from the
existing Executive Order 12333, to exclude certain of its
activities from the requirement for a Presidential finding
provided that such activities do not fall within the intended
ambit of subsection (1). In effect, this means that where
CIA has not legally been barred in the past from undertaking
certain activities in foreign countries without a
presidential finding (i.e. certain counterintelligence
activities, routine assistance to the Department of State in
performing certain diplomatic or overt initiatives, and
certain routine assistance to the Department of Defense or
other agencies under the Economy Act), it is not so barred
under this definition. It does mean, however, that to the
extent CIA activities within the United States or abroad have
been barred under previous law from being undertaken without
a presidential finding, even though they are not expressly
covered by the Executive order definition (e.g., covert
support to other U.S. agencies abroad whose activities would
be apparent or publicly acknowledged upon execution), they
will continue to be included under subsection (1) of the
definition.
In short, the two-part definition of "special activity"
contained in subsection 503(e) is intended to maintain
current law with respect to both CIA and the Executive branch
as a whole, as mutually interpreted and agreed upon by the
Executive branch and the intelligence committees.
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SECTION 3. LIMITATION ON USE OF FUNDS FOR SPECIAL ACTIVITIES
Section 3 of the bill redesignates section 502 of the
National Security Act of 1947, which concerns the funding of
intelligence activities, as section 504 of the Act. It also
makes a technical amendment to conform subsection 502(a)(2)
of the existing statute to the numbering used in this bill.
Finally, it adds a new subsection (d) which deals with the
use of funds for special activities.
This provision is intended to carry forward and expand
the limitation currently contained in 22 U.S.C. 2422 (the
Hughes-Ryan Amendment), which would be repealed by Section 1
of the bill. The Hughes-Ryan amendment restricts the use of
funds appropriated to CIA to carry out actions outside the
United States "other than the collection of necessary
intelligence", unless and until the President had determined
that such actions were important to the national security.
Section 504(d) would similarly provide that appropriated
funds could not be expended to implement special activities
until the President had signed, or otherwise approved, a
finding authorizing such activities, in accordance with
subsection 503(a) but it would expand this limitation to
cover the funds appropriated for any department, agency, or
entity of the Government, not solely CIA. It would cover any
appropriated funds, whether or not appropriated for the
special activity contemplated. It would also cover
non-appropriated funds which are available to such
departments, agencies, or entities from any source, over
which such department, agency, or entity exercises control.
These might include funds provided by third parties, funds
which are in the possession or custody of third parties but
over which the U.S. has authority to direct disbursements,
and funds produced as a result of intelligence activities
(i.e. proprietaries). The limitation contained in section
504(d) would also apply regardless of whether the department,
agency, or entity concerned actually came into possession of
the funds, so long as it had the ability to direct the
expenditure of such funds by the possessing agency or third
party. This bar on expenditures would not preclude the
payment of salaries or other expenses necessary for the
planning of a special activity, as explained in the analysis
of subsection 503(c)(1), above.
SECTION 4. REDESIGNATION OF SECTION 503 OF NATIONAL
SECURITY ACT OF 1947
Section 4 redesignates section 503 of the National
Security Act of 1947 as section 505, to conform to the
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UL
,changes made by the bill.
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COST ESTIMATE
In accordance with Paragraph 11(a) of Rule XXVI of the
Standing Rules of the Senate, the Committee estimates that
enactment of this legislation will not result in any
additional cost to the government, either in this fiscal year
or in the future.
EVALUATION OF REGULATORY IMPACT
In accordance with Paragraph 11(b) of Rule XXVI of the
Standing Rules of the Senate, the Committee finds no
additional regulatory impact will be incurred in implementing
the provisions of this legislation, apart from that which
may exist under existing law.
CHANGES IN EXISTING LAW
In accordance with Paragraph 12 of Rule XXVI of the
Standing Rules of the Senate, the proposed legislation would
entail the following changes in existing law:
(a) Text of Statutes Proposed to be Repealed
Section 662 of the Foreign Assistance Act of 1961 (22
U.S.C. 2422). Limitation on Intelligence Activities.--No
funds appropriated under the authority of this or any other
Act may be expended by or on behalf of the Central
Intelligence Agency for operations in foreign countries,
other than activities intended solely for obtaining necessary
intelligence, unless and until the President finds that each
such operation is important to the national security of the
United States. Each such operation shall be considered a
significant anticipated intelligence activity for the purpose
of section 501 of the National Security Act of 1947.
(b) Amendments to Existing Law
TITLE V OF THE NATIONAL SECURITY ACT OF 1947 (50 U.S.C. 413)
(ACCOUNTABILITY FOR INTELLIGENCE ACTIVITIES)
TITLE V -- ACCOUNTABILITY FOR INTELLIGENCE ACTIVITIES
CONGRESSIONAL OVERSIGHT
C 591 ) T th elite t eensistent with all
consistent with d 4 for the a~ee~: from
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64
Director of Qeptirral inteliigenee and the heads of all
depaFtments, ageneies, and etheE entities 99 the unit
states involved in intelligence } i es sh_, 1 --
(1) keep theSelect6emmit?eee? the Senate
andt-# the Select Gemmit?ee-en intelligeneL-
99 the House of RepEesenta-tives (h fter in
this section referred to as the "' tell'' ce
e?emm-it?e") fully and currently informed of all
intelligence activities wh: eh a the
ea d-outper or on behalf ef, any department
fieant anticipated intelligence act ' ty
s.
e x c eg}?--- that (Al fefe prevision shall Re t
anticipated intelligence activity, and (B) if the
_resident determines it essential limit rr
t F rd ter.. circumstances
affecting vital interests a?- he United States-r
shall- -he limited the eha; r and
;ring minority members of the intelligence
semmittees, the Speaker and miner-Its leader 96 tti,e
r': use of Representatives, and the major: t'? and
m rity leaders of the Senatep
(2) furnish any format: e., or material
.,' intell-inee eti it' .h: ch in the
7 ge
ageney, ef entity 99 the United States and- wh-Jeh I_rV
inorder to Barry out : is _uther: zed
resonsibiiitiesrand
(3) report in a timely fashienee
intelligence committees any illegal intelligence
activity or significant intelligence failure and
any corrective action that has been taken or is
planned to be taken in connection with such illegal
activity
(b) The President shall fully inform the intelligence
committees in a times
foreign ? ethef than ct? ? t intended el el y for
l
net given ianderr sawasee-t-JeFi (a) and shall pr-evide -a Statem
99 the Eeasens go* net giving pFireE netiee.
(c) ThePresident and the intelligence :ttes shall
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0>
(d) The Reuse of Representatives -and- the-Senate, i-I
olassi?iod information and all information el?} to
this see?ien. In accordance with such pFeeedaFes, each of
the intelligence committees shall promptly call to the
P ~ '
attention of its ect; a Wouse, 9F to any approp te
relating to intelligence activities re ii-rigthe a`tent: on
of such House or such committee or eemmittees
(e) Nothing in this Act shall 4.s st.. ea authority
to withheld information from the intelligeneeeemmittees en
the grounds that providing the information to the
e
intelligence committees would constitute the an-authari
disolesura of classified information format. relating
to intelligenre courooc and met od
SEC. 501.(a) The President shall ensure that the Select
Committee on Intelligence of the Senate and the Permanent
Select Committee of the House of Representatives (hereinafter
in this title referred to as the "intelligence committees")
are kept fully and currently informed of the intelligence
activities of the United States, including any significant
anticipated intelligence activities, as required by this
title; provided, however, that nothing contained in this
title shall be construed as requiring the approval of the
intelligence committees as a condition precedent to the
initiation of such activities: and provided further,
however, That nothing contained herein shall be construed as
a limitation on the power of the President to initiate such
activities in a manner consistent with his powers conferred
by the Constitution.
(b) The President shall ensure that any illegal
intelligence activity is reported to the intelligence
committees, as well as any corrective action that has been
taken or is planned in connection with such illegal activity.
(c) The President and the intelligence committees shall
each establish such procedures as may be necessary to carry
out the provisions of this title.
(d) The House of Representatives and the Senate, in
consultation with the Director of Central Intelligence,
shall each-establish, by rule or resolution of such House,
procedures to protect from unauthorized disclosure of all
classified information and all information relating to
intelligence sources and methods furnished to the
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intelligence committees or to Members of Con ress under this
title. In accordance with such procedures, each of the
intelligence committees shall promptly call to the attention
of its respective House, or to any appropriate committee or
committees of its respective House,--an y matter relating to
intelligence activities requiring the attention of such House
or such committee or committees.
(e) Nothing in this Act shall be construed as authority
to withhold information from the intelligence committees on
the grounds that providing the information to the
intelligence committees would constitute the unauthorized
disclosure of classified information or information relating
to intelligence sources and methods.
(f) As used in this section, the term "intelligence
activities" includes, but is not limited to, "special
activities" as defined in subsection 503(e), below.
REPORTING INTELLIGENCE ACTIVITIES OTHER THAN
SPECIAL ACTIVITIES
SEC. 502. To the extent consistent with due regard for
the protection from unauthorized disclosure of classified
information relating to sensitive intelligence sources and
methods or other exceptionally sensitive matters, the
Director of Central Intelligence and the heads of all
departments, agencies, and other entities of the United
States Government involved in intelligence activities shall:
(a) keep the intelligence committees fully
and currently informed of all intelligence
activities, other than special activities, as
defined in subsection 503(e), below, which are the
responsibility of, are engaged in by, or are
carried out for or on behalf of, any department,
agency, or entity of the United States Government,
including any significant anticipated intelligence
activity and significant failures; and
(b) furnish the intelligence committees any
information or material concerning intelligence
activities other than special activities which is
within their custody or control, and which is
requested by either of the intelligence committees
in order to carry out its authorized
responsibilities.
PRESIDENTIAL APPROVAL AND REPORTING
OF SPECIAL ACTIVITIES
SEC. 503. (a) The President may authorize the conduct
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67
of "special activities," as defined herein below, by
departments, agencies , or entities of the United States
Government only when
he
determines such
activities
are
necessary to support
the
foreign policy
objectives
of
the
United States and are important to the national security of
the United States, which determination shall be set forth in
a finding that shall meet each of the following conditions:
(1) Each finding shall be in writing, unless
immediate action by the United States is required
and time does not permit the preparation of a
written finding, in which case a written record of
the President's decision shall be contemporaneously
made and shall be reduced to a written finding as
soon as possible but in no event more than
forty-eight hours after the decision is made;
(2) A finding may not authorize or sanction
special activities, or any aspect of such
activities, which have already occurred;
(3) Each finding shall specify each and every
department, agency, or entity of the United States
Government authorized to fund or otherwise
participate in any significant way in such
activities: Provided, That any employee,
.contractor, or contract agent of a department,
agency, or entity of the United States Government
other than the Central Intelligence Agency directed
to participate in any way in a special activity
shall be subject either to the policies and
regulations of the Central Intelligence Agency, or
to written policies or regulations adopted by such
department, agency or entity, to govern such
participation;
(4) Each finding shall specify whether it is
contemplated that any third party which is not an
element of, contractor or contract agent of, the
United States Government, or is not otherwise
subject to United States Government policies and
regulations, will be used to fund or otherwise
participate in any significant way in the special
activity concerned, or be used to undertake the
special activity concerned on behalf of the United
States;
(5) A finding may not authorize any action
intended to influence United States political
processes, public opinion, policies or media; and
(6) A finding may not authorize any action
that would violate any statute of the United Sates.
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(b) To the extent consistent with due regard for the
protection from unauthorized disclosure of classified
information relating to sensitive intelligence sources and
methods, or other exceptionally sensitive matters, the
Director of Central Intelligence and the heads of all
departments, agencies, and entities of the United States
Government involved in a special activity shall.
(1) keep the intelligence committees fully
and currently informed of all special activities
which are the responsibility of, are engaged in by,
or are carried out for or on behalf of, any
department, agency, or entity of the United States
Government, including significant failures; and
(2) furnish to the intelligence committees
any information or material concerning special
activities which is in the possession, custody or
control of any department, agency, or entity of the
United States Government and which is requested by
either of the intelligence committees in order to
carry out its authorized responsibilities.
(c)(1) Except as provided in subsections (2) through
(4), below, the President shall ensure that any finding
approved, or determination made, pursuant to subsection (a),
above, shall be reported to the intelligence committees prior
'to the initiation of the activities authorized, and in no
event later than 48 hours after such finding is signed or the
determination is otherwise made by the President.
(c)(2) On rare occasions when time is of the essence,
the President may direct that special activities be initiated
prior to reporting such activities to the intelligence
committees; provided, however, That in such circumstances,
notice shall be provided the intelligence committees as soon
as possible thereafter but in no event later than 48 hours
after the finding authorizing such activities is signed or
such determination is made, pursuant to subsection (a),
above.
(c)(3) When the President determines it is essential to
meet extraordinary circumstances affecting vital interests of
the Unite States, the President may limit the reporting of
findings or determinations pursuant to subsections (1) or (2)
of this section, to the chairmen and ranking minority members
of the intelligence committees, the Speaker and Minorit
Leader of the House of Representatives, and the Majority and
Minorit Leaders of the Senate. In such case, the President
s a provide a statement of the reasons for limitin access
to such fin ings or determinations in accordance with this
subsection.
(c)(4) Notwithstanding the provisions of subsection (3)
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b)-
above, when the President determines it is essential to meet
extraordinary circumstances affecting the most vital security
interests of the United States and the risk of disclosure
constitutes a grave risk to such vital interests, the
President ma limit the reporting of findings or
determinations pursuant to subsections (1) or (2) of this
section to the Speaker and Minority Leader of the House of
Representatives, and the Majority and Minority Leaders of the
Senate. In such cases, the President shall provide a
statement of reasons explaining why notice to the
intelligence committees is not being provided in accordance
with subsection (c)(1), above. The President shall
personally reconsider each week thereafter the reasons for
continuing to limit such notice, and provide a statement to
the Members of Congress identified herein above on a weekly
basis, confirming his decision, until such time as notice is,
in fact, provided the intelligence committees.
(c)(5) In all cases reported pursuant to subsections
(c)(1), (c)(2), and (c)(3), above, a copy of the finding,
signed by the President, shall be provided to the chairman
of each intelligence committee. In all cases reported
pursuant to subsection (c)(4), a copy of the finding, signed
b the President, shall be shown to the Members of Congress
identified in such subsection at the time such finding is
reported.
(d) The President shall ensure that the intelligence
committees, or, if applicable, the Members of Congress
specified in subsection (c), above, are notified of any
significant change in a previously-approved special activity,
or any significant undertaking pursuant to a
previously-approved finding, in the same manner as findings
are reported pursuant to subsection (c), above.
(e) As used in this section, the term "special
activity" means:
(1) any o eration of the Central Intelligence
Agency conducted in foreign countries, other than
activities intended solely for obtaining necessary
intelligence;
and
(2) to th
e extent
not
inconsistent with
subsection (1), above,
any
activity conducted by
any department,
agency,
or
entity of the
United
States Government in support of national
foreign
policy objectives abroad which is planned
and
executed so that the role of the United States
Government is not a arent or acknowledged
publicly, and functions in support of such
activity, but which does not include diplomatic
activities or the collection and production of
intelligence or related support activities.
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SEC. -42.504 (a) Appropriated funds available to an
intelligence agency may be obligated or expended for an
intelligence or intelligence-related activity only if --
(1) those funds were specifically authorized
by the Congress for use for such activities; or
(2) in the case of funds from the Reserve for
Contingencies of the Central Intelligence Agency
and consistent with the provisions of section 501
of this Act concerning any significant anticipated
intelligence activity, the Director of Central
Intelligence has notified the appropriate
congressional committees of the intent to make such
funds available for such activity; or
(3) in the case of funds specifically
authorized by the Congress for a different
activity --
(A) the activity to be funded is a
higher priority intelligence or
intelligence-related activity;
(B) the need for funds for such activity
is based on unforeseen requirements; and
(C) the Director of Central
Intelligence, the Secretary of Defense, or the
Attorney General, as appropriate, has notified
the appropriate congressional committees of
the intent to make such funds available for
such activity;
(4) nothing in this subsection prohibits
obligation or expenditure of funds available to an
intelligence agency in accordance with sections
1535 and 1536 of title 31, United States Code.
(b) Funds available to an intelligence agency may not
be made available for any intelligence or
intelligence-related activity for which funds were denied by
the Congress.
(c) As used in this section --
(1) the term "intelligence agency" means any
department, agency, or entity of the United States
involved in intelligence or intelligence-related
activities;
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(2) the term "appropriate congressional
committees" means the Permanent Select Committee on
Intelligence and the Committee on Appropriations of
the House of Representatives and the Select
Committee on Intelligence and the Committee on
Appropriations of the Senate; and
(3) the term "specifically authorized by the
Congress" means that --
(A) the activity and the amount of funds
proposed to be used for that activity were
identified in a formal budget request to the
Congress, but funds shall be deemed to be
specifically authorized for that activity only
to the extent that the Congress both
authorized the funds to be appropriated for
that activity and appropriated the funds for
that activity; or
(B) although the funds were not formally
requested, the Congress both specifically
authorized the appropriation of the funds for
the activity and appropriated the funds for
the activity.
(d) No funds appropriated for, or otherwise available
to, any department, agency, or entity of the United States
Government, may be expended, or may be directed to be
expended, for any special activity, as defined in subsection
503(e), above, unless and until a Presidential finding
required by subsection 503(a), above, has been signed or
otherwise issued in accordance with that subsection.
NOTICE TO CONGRESS OF CERTAIN TRANSFERS OF DEFENSE ARTICLES
AND DEFENSE SERVICES
SEC. ?a3. 505[50 U.S.C. 415] (a)(1) The transfer of a
defense article or defense service exceeding $1,000,000 in
value by an intelligence agency to a recipient outside that
agency shall be considered a significant anticipated
intelligence activity for the purpose of section 4" 503 of
this Act.
(2) Paragraph (1) does not apply if --
(A) the transfer is being made to a
department, agency, or entity of the United States
(so long as there will not be a subsequent
retransfer of the defense articles or defense
services outside the United States Government in
conjunction with an intelligence or
intelligence-related activity); or
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(B) the transfer --
(i) is being made pursuant to
authorities contained in part II of the
Foreign Assistance Act of 1961, the Arms
Export Control Act, title 10 of the United
States Code (including a law enacted pursuant
to section 7303(b)(1) of that title), or the
Federal Property and Administrative Services
Act of 1949, and'
(ii) is not being made in conjunction
with an intelligence or intelligence-related
activity.
(3) An intelligence agency may not transfer any defense
articles or defense services outside the agency in
conjunction with any intelligence or intelligence-related
activity for which funds were denied by the Congress
(b) As used in this section --
(1) the term "intelligence agency" means any
department, agency, or other entity of the United
States involved in -intelligence or
intelligence-related activities;
(2) the terms "defense articles" and "defense
services" mean the items on the United States
Munitions List pursuant to section 38 of the Arms
Export Control Act (22 CFR part 121);
(3) the term "transfer" means --
(A) in the case of defense articles, the
transfer of possession of those articles; and
(B) in the case of defense services, the
provision of those services; and
(4) the term "value" means
(A) in the case of defense articles, the
greater of --
(i) the original acquisition cost
to the United States Government, plus the
cost of improvements or other
modifications made by or on behalf of the
Government; or
(ii) the replacement cost; and
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(B) in the case of defense services, the
full cost to the Government of providing the
services.
?
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