LETTER FROM RONALD REAGAN TO THE HONORABLE DAVID L. BOREN

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90B00017R000500020003-5
• Release Decision: RIPPUB
• Original Classification: T
• Document Page Count: 145
• Document Creation Date: December 27, 2016
• Document Release Date: January 14, 2013
• Sequence Number: 3
• Publication Date: November 17, 1987
• Content Type: MEMO

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S.
THE WHITE HOUSE
AS
August 7, 1987
Dear Chairman Boren:
In my March 31, 1987, message to Congress, I
reported on those steps I had taken and intended
to take to implement the recommendations of the
President's Special Review Board. These included
a comprehensive review of Executive Branch pro-
cedures concerning presidential approval and
notification to Congress of covert action
programs -- or so-called special activities.
In my message, I noted that the reforms and
changes I had made and would make 'are evidence
of my determination to return to proper procedures
including consultation with the Congress.'
In this regard, Frank Carlucci has presented to
me the suggestions developed by the Senate Select
Committee on Intelligence for improving these
procedures. I welcome these constructive sugges-
tions for the development of a more positive
partnership between the intelligence committees
and the Executive Branch.
Greater cooperation in this critical area will
be of substantial benefit to our country, and I
pledge to work with you and the members of the
two committees to achieve it. We all benefit
when we have an opportunity to confer in advance
about important decisions affecting our national
security.
Specifically, I want to express my support for
the following key concepts recommended by the
Committee:
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1. Except in cases of extreme emergency, all
national security 'Findings' should be in writing.
If an oral directive is necessary, a record should
be made contemporaneously and the Finding reduced
to writing and signed by the President as soon as
possible, but in no event more than two working days
thereafter. All Findings will be made available to
members of the National Security Council
(NSC).
2. No Finding should retroactively authorize
or sanction a special activity.
3. /f the President directs any agency or
persons outside of the CIA or traditional intelli-
gence agencies to conduct a special activity,
all applicable procedures for approval of a
Finding and notification to Congress shall apply
to such agency or persons.
4. The intelligence committees should be
appropriately informed of participation of
any government agencies, private parties, or
other countries involved in assisting with
special activities.
5. There should be a regular and periodic
review of all ongoing special activities both
by the intelligence committees and by the NSC.
This review should be made to determine whether'
each such activity is continuing to serve the
purpose for which it was instituted. Findings
should terminate or "sunset" at periodic
intervals unless the President, by appropriate
action, continues them in force.
6.- I believe we cannot conduct an effec-
tive program of special activities without the
cooperation and support of Congress. Effective
consultation with the intelligence committees
is essential, and I am determined to ensure
that these committees can discharge their
statutory responsibilities in this area. In
all but the most exceptional circumstances,
timely notification to Congress under
Section 501(b) of the National Security Act
of 1947, as amended, will not be delayed
beyond two working days of the initiation of
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a special activity. While I believe that the
current statutory framework is adequate,
new Executive Branch procedures nevertheless
are desirable to ensure that the spirit of
the law is fully implemented. Accordingly,
I have directed my staff to draft for my
signature executive documents to implement
appropriately the principles set forth in
this letter.
While the President must retain the flexibility
as Commander-in-Chief and Chief Executive to
exercise those constitutional authorities
necessary to safeguard the nation and its
citizens, maximum consultation and notifica-
tion is and will be the firm policy of this
Administration.
Sincerely,
/Th
(ajee-46.1"
cc: The Honorable Louis Stokes
The Honorable Henry J. Hyde
The Honorable David L. Boren
Chairman
Senate Select Committee on Intelligence
United States Senate
Washington, D.C. 20510
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100TH CONGRESS
1ST SESSION
S. 1721
II
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.
IN THE SENATE OF THE UNITED STATES
SEPTEMBER 25, 1987
Mr. COHEN (for himself, Mr. BOREN, Mr. INouvE, Mr. MITCHELL, Mr. BENT-
SEN, Mr. DECONCINI, Mr. MuExowsict, and Mr. RUDMAN) introduced the
following bill; which was read twice and referred to the Select Committee on
Intelligence
.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.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Intelligence Oversight
4 Act of 1987".
5 SECTION 1. Section 662 of the Foreign Assistance Act
6 of 1961 (22 U.S.C. 2422) is hereby repealed.
*(Star Print)
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1 SEC. 2. Section 501 of title V of the National Security
2 Act of 1947 (50 U.S.C. 413) is amended by striking the Ian-
3 guage contained therein, and substituting the following new
4 sections:
5 "GENERAL PROVISIONS
6 "SEC. 501. (a) The President shall ensure that the
7 Select Committee on Intelligence of the Senate and the Per-
8 manent Select Committee of the House of Representatives
9 (hereinafter in this title referred to as the 'intelligence corn-
10 mittees') are kept fully and currently informed of the intern-
11 gence activities of the United States as required by this title.
12 tSh?a7ctiirities_shall ordinarily be conducted pur 1.--ria-nr-f(.:7CozTin.i-
13t-sultations-b-etween-the-Presid-entror-his-repres-erauttives, and
14 the-intelligen-ce-cornmitte-a, prior-to th-implenavitratird-151
C---
157ffichactitirovided, however, That nothing contained
16 herein shall be construed as requiring the approval of the
17 intelligence committees as a condition precedent to the initi-
18 ation of such activities: And provided further, however, That
19 nothing contained herein shall be construed as a limitation on
20 the power of the President to initiate such activities in a
21 manner consistent with his powers conferred by the Constitu-
22 tion.
23 "(b) The President shall ensure that any illegal intelli-
24 gence activity or significant intelligence failure is reported to
25 the intelligence committees, as well as any corrective action
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1 that has been taken or is planned in connection with such
2 illegal activity or intelligence failure.
3 "(c) The President and the intelligence committees shall
4 each establish such procedures as may be necessary to carry
5 out the provisions of this title.
6 "(d) The House of Representatives and the Senate, in
7 consultation with the Director of Central Intelligence, shall
8 each establish, by rule or resolution of such House, proce-
9 dures to protect from unauthorized disclosure all classified
10 information and all information relating to intelligence
11 sources and methods furnished to the intelligence committees
12 or to Members of Congress under this section. In accordance
13 with such procedures, each of the intelligence committees
14 shall promptly call to the attention of its respective House, or
15 to any appropriate committee or committees of its respective
16 House, any matter relating to intelligence activities requiring
17 the attention of such House or such committee or corn-
18 mittees.
19 "(e) Nothing in this Act shall be construed as authority
20 to withhold information from the intelligence committees on
21 the grounds that providing the information to the intelligence
22 committees would constitute the unauthorized disclosure of
23 classified information or information relating to intelligence
24 sources and methods.
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1 "(f) As used in this section, the term 'intelligence activi-
2 ties' includes, but is not limited to, 'special activities,' as de-
3 fined in subsection 503(e), below.
4 "REPORTING INTELLIGENCE ACTIVITIES OTHER THAN
5 SPECIAL ACTIVITIES
6 "SEc. 502. The Director of Central Intelligence and the
7 heads of all departments, agencies, and other entities of the
8 United States Government involved in intelligence activities
9 shall keep the intelligence committees fully and currently in-
10 formed of all intelligence activities, other than special a,ctivi-
11 ties as defined in subsection 503(e), below, which are the
12 responsibility of, are engaged in by, or are carried out for or
13 on behalf of, any department, agency, or entity of the United
14 States Government, including any significant anticipated in-
15 telligence activity: Provided, That such obligation shall be
16 carried out with due regard for the protection of classified
17 information relating to sensitive intelligence sources and
18 methods. In satisfying this obligation, the Director of Central
19 Intelligence and the heads of all departments and agencies
20 and other entities of the United States Government involved
21 in intelligence activities shall furnish the intelligence commit-
22 tees any information or material concerning intelligence ac-
23 tivities other than special activities which is within their cus-
24 tody or control, and which is requested by either of the intel-
25 ligence committees in order to carry out its authorized
26 responsibilities.
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1 "APPROVING AND REPORTING SPECIAL ACTIVITIES
2 "SEc. 503. (a) The President may authorize the con-
3 duct of 'special activities,' as defined herein below, by depart-
4 ments, agencies, or entities of the United States Government
5 when he determines such activities are necessary to support
6 the foreign policy objectives of the United States and are
7 important to the national security of the United States, which
8 determination shall be set forth in a finding that shall meet
9 each of the following conditions:
10 "(1) Each finding shall be in writing, unless im-
11 mediate action by the United States is required and
12 time does not permit the preparation of a written find-
13 ing, in which case a written record of the President's
14 decision shall be contemporaneously made and shall be
15 reduced to a written finding as soon as possible but in
16 no event more. than forty-eight hours after the decision
17 is made;
18 "(2) A finding may not authorize or sanction spe-
19 cial activities, or any aspect of such activities, which
20 have already occurred;
21 "(3) Each finding shall specify each and every de-
22 partment, agency, or entity of the United States Gov-
23 errunent authorized to fund or otherwise participate in
24 any way in such activities: Provided, That any employ-
25 ee, contractor, or contract agent of a department,
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agency, or entity other than the Central Intelligence
Agency directed to participate in any way in a special
activity shall be subject either to the policies and regu-
lations of the Central Intelligence Agency, or to writ-
5 ten policies or regulations adopted by such department,
6- agency or entity, in consultation with the Director of
7 Central Intelligence, to govern such participation;
8 "(4) Each finding shall specify, in accordance with
9 procedures to be established pursuant to subsection
10 501(c), any third party, including any foreign country,
11 which is not an element of, contractor or contract
12 agent of, the United States Government, or is not oth-
13 erwise subject to United States Government policies
14 and regulations, who it is contemplated will be used to
15 fund or otherwise participate in any way in the special
16 activity concerned; and
17 "(5) A finding may not authorize any action that
18 would be inconsistent with or contrary to any statute
19 of the United States.
20 "(b) The President, the Director of Central Intelligence
21 and the heads of all departments, agencies, and entities of the
22 United States Government authorized to fund or otherwise
23 participate in any way in a special activity shall keep the
24 intelligence committees fully and currently informed of all
25 special activities which are the responsibility of, are engaged
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1 in by, or are carried out for or on behalf of, any department,
2 agency, or entity of the United States Government. In satis-
3 fying this obligation, tli-e__-__i_rit-t.11ence comTniftelfail-be-filr-
4 iiihd any aor?niiition or materiai-coneerning
5 ti-e-rWhiaits-in--the-p-o-Weiga;:custody or control of any de-
6 partment, agency, or entity of the United States Government
7 and which is requested by either of the intelligence commit-
8 tees in order to carry out its authorized responsibilities.
9 "(c) The President shall ensure that. any finding issued
10 pursuant. to subsection (a), above, shall be reported to the
11 intelligence committees as soon as possible, but in no event
12 later than forty-eight hours after it has been signed; provided,
13 however, that if the President determines it is essential to
14 limit access to the finding to meet extraordinary circum-
15 stances affecting vital interests of the United States, such
16 finding may be reported to the chairmen and ranking minori-
17 ty members of the intelligence committees, the Speaker and
18 minority leader of the House of Representatives, and the ma-
19 jority and minority leaders of the Senate. In either case, a
20 certified copy of the finding, signed by the President, shall be
21 provided to the chairman of each intelligence committee.
22 Where access to a finding is limited to the Members of Con-
23 gress identified herein above, a statement of the reasons for
24 limiting such access shall also be provided.
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1 "(d) The President shall promptly notify tb
2 committees, or, if applicable, the Members of Congress spec-
3 fled in subsection (c), above, of any significant change in any
4 previously-approved special activity.
5 "(e) As used in this section, the term 'special ac
6__means any activity conducted_in support of natione.
7 policy objectives abroad which is planned and , so
8 that the role of the United States GovernmeD/ par-
9 ent or acknowledged publicly, and functions in b,,port of
10 such activity, but which is not intended to influence United
11 States political processes, public opinion, policies or media,
12 and does not include activities to collect necessary intelli-
13 gence, military operations conducted by the armed forces of
14 the United States and subject to the War Powers Resolution
15 (50 U.S.C. 1541-1548), diplomatic activities carried out by
16 the Department of State or persons otherwise acting pursu-
17 ant to the authority of the President, or activities of the De-
18 partment of Justice or Federal law enforcement agencies
19 solely to provide assistance to the law enforcement authori-
20 ties of foreign governments.".
21 SEC. 3. Section 502 of title V of the National Security
22 Act of 1947 (50 U.S.C. 414) is redesignated as section 504
23 of such Act, and is amended by adding the following new
24 subsection (d):
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1 "(d) No funds appropriated for, or otherwise available
2 to, any department, agency, or entity of the United States
3 Government, may be expended, or may be directed to be ex-
4 pended, for any special activity, as defined in subsection
5 503(e), above, unless and until a Presidential finding required
6 by subsection 503(a), above, has been signed or otherwise
7 issued in accordance with that subsection.".
8 SEC. 4. Section 503 of title V of the National Security
9 Act of 1947 (50 U.S.C. 415) is redesignated as section 505
10 of such Act.
0
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S 1.2854
CO'NGRESSIONAL'REGORD :?SENATE -
U(e) As -used 4n this aectionsthe termspe-
cial means any activity -conducted
in support of national foreign policy :objec-
tives. abroad -which 4s planned and executed
so -that the role of the United States -Gov-
ernment. is not -apparent .or acknowledged
publicly, and functions in 'support of such
activity. but --which is not intended to influ-
ence United States political processes.
opinion. polieies or -media, and does
not include activities to collect necessary in-
telligence, military operations !conducted by
the armed fortes :of the United States and
'subject to the -War Powe;s Resolution (50
U.S.C. 1541-134E), diplomatic act/elides car-
ried -out by the Depatteuent of 51411.e or per-
son.s otherwise acting pursuant. to the au-
thority of the President, or activities -dr the
Department of Justice or federal law -en-
forcement agencies -solely to provide :assist-
ance to the la.w enforcement authorities of
foreign governments."
Sac. 3. Section 502 of Title V of the Na-
tional Security Act of 1947 450 U..S_C. 414) is
'redesignated as section 504 of such Act, A.nd
is amended by adding the f011owing new
istibsection Id):
"t.(5) No funds appropriated fon .or other-
-wise available to, any department. agency.
or entity of the 'United States -Government.
may be expended, -or may be directed :to be
expended, for arty special activity. as -de-
fined in subsection $03(e), above, unless And
until a Presidential finding required by _sub-
section 503(a), above, has been signed or
!otherwise issued in accordance With that
-subsection:"
SEC. 4. Section 503 of Title V of the Na-
tional 'Security -Act -of 1947 450 U.S.C. 415) is
'redesignated a.s.section 505 of -such Act.
T: SE CT i 07c 1. ItEPEAL
DP IIINIEPES-Tt TAN
AMENDMENT
-Current !statutory previsions for hitelh-
gence oversight Maude the !general require-
ments to inform tbe 'House end Senate In-
telligence Committees in Title V of the Na-
tional 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 422 USC 2422?the liughes-R.yan
Amendment). The differences in language
and -scope between these prodisions have
been -a source of unnecessary confusion.
Therefore, Section 1 of the bill would repeal
the Hughes-Ryan Amendment in order to
substitute a new Presidential -approval re-
quirement as an integral part of a snore co-
herent and comprehensive statutory _over-
sight framework for covert action tor 'spe-
cial activities'-) and other intelligence activi-
ties. The -superceding Presidential approval
requirement is contained -in the proposed
new sections 503 and 504o0) 'of the National
Security Act_ of 1947, discussed below.
This change is intended to bring -current
law more closely into line with Executive
-branch policy which requires Presidential
approval for -covert, act-ion by any compo-
nent -of -the U.S. Government. not just by
the CIA. Section '3.1 of Executive Order
12333, "December 4, 1981, states, "The re-
ouirements of section -662 of the Foreign As-
sistance. Act of .19E1, RE amended I22 USC
247.2), and ?Section 501 of the _National Secu-
rity Act of -1947, as -amended (50 USC 413).
.shall appty to all special -activities as defined
-in this Order." Replacing Hushes-Ryan
with a comprehensive Presidential -approval
requirement for covert action tor "special
activities") by any U.S. -Government entity
gives statutory force to a policy that has not
been consistently followed in recent years.
SECTION-EY-SECTION ANALYSIS
? SE Is 4.-OVERsICITY INTSLIASENCE
. ActIvITIEs . ?
-Section 2 of the bill -would :replace the ex-
disting -Section of the National Security
Act .of 1947 'With three -.new sections that
prescribe, respeetirely, general provisions
for oversight of alt intelligence activities. re-
porting of intelligence 'activities ether -thati
special activities, -and approval -and repott-
ing of special 'activities. This revision of CUT-
rent law has three principal -objectives.
The first is to clarify and emphasize the
general 'responsibilities of the President 1,S,
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 rot fully address the
the President. Nor does the existing statute
reflect the !commitment to consultation
with the Congress made by the President as
a result of the lessons learned from the
Iran-Contra inquiries.
The -second objective is to eliminate un-
necessary ambiguities -in the law_ Experi-
ence under the current statute has indicat.-
.ed significant areas 'where Congressional
intent may be subject to misinterpretation
by Executive -branch officials. as dwell as
gaps in tbe law where Congress did net ade-
ouately anticipate the need for statutory
guidance. Examples are the -uncertain mean-
ing -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
ler implementing -covert actions. The aim is
to :clarify ,the intent -of 'Congress with re-
spect to :oversight -of intelligence activities
so as to reduce the possibilities for misun-
derstanding or .evasion. For purposes -of clar-
ity. -a distinction -is made between the de-
tailed provisions for special activities, which
are instruments _of 1J.S. foreign poliey, and
the requirements for other intelligence ac-
tivities 'Cie., collection. -analysis, counterin-
telligence.) that .are less ,controversial.
_A third objective is to provide statillor.y
authority for the President. to emp oy spe-
cial -activities .to implement 1.).S. oreign
,policy by -covert _means. Congress as not
previously -done so, except to the extent
that the CIA was authorized by the Nation-
Security Act. of 1947 -to perform such
other functions and duties related -to intelii-
,gence Affecting the national security as the
Na.tionai Security Council may from time to
time direct:" Current law requires Presiden-
tial approval and the reporting to Congress
-.of "intelligence operations in foreigii coun-
tries, other than activities .intendet solely
for -obtaining necessary intelligence. This
does not provide affirmative .statuto -y au-
thority to employ covert means as asipple-
-ment to overt instruments of U.S. -.foreign
policy. Nor dee,- it specify what types of ac-
tivity are intencied to !be covered by 'the
legal requirements for covert action. This
has called into question the legality of
covert actions, such as arms -transfers, un-
dertaken as alternatives to -overt programs
-with exnress statutory -at:thorny. Congress
should expressly authorize col action as
a legitimate foreign policy inskI,Jrnenl, _sub-
ject to Clearly -defined approval and report-
-Ma requirements.
The overall purpose of this till Ls in use
the lessons of recent experience to est iblish
a more effective statutory framework for
executive-legislative cooperation in the field
-of intelligence. Such legislatiori is -not a
:guarantee -against conflicts between the
branches-or abuses of -power. It ean, howev-
er, help minimize such conflicts and abuses
-by --emphasizing the 'mutual -obligations of
the President -and Congress and by eliminat-
ing unnecessary legal ambiguities that
invite misunderstanding-on both sides.
September 194;,"1987-
? SECTION Sal-SENTILAL idenwisioris
- -The new Section 501 Of Title V ef_the Na-
tional Security Act of- 1947 would specify
the general responsibilities of -the President
land the.Cotagress for oversight t'of tintelli-
gence activities. -
Presidontial Dutir.s end Prior
.? Cons,zaiation. ?
Subsection (a) Would place 2 statutory ob-
ligation -upon the President to ensure that
the _Senate Select -Committee on Intelli-
gence and the House Permanent Select
Committee on Intelligence ?(referred to jr
-the bill as the "intelligence -committees.")
are kept fully and currently informed of the
intelligence activities of the United 'States
as required by this title. Current law !im-
poses such duties on -the DCI _and agency
heads, but .not on the President himself.
Overall responsihility should be weSted in
the President because of the importance
and sensitivity of secret intelligence activi-
ties that may affect vital national interests
and because the President. may have unique
knowledge of those activities that he is ,hest
suited to ensure is imparted to 'the intelli-
gence committees. The terms _and conditions
for keeping the committees "fully and cur-
rently informed" are those set forth in Sec-
tions 502 and 503, discussed below.
1-n addition. -subsection 'Cal !would provide
that 'US. intelligence activities shall -ordi-
narily be !conducted pursuant to -consults
drions between the President, or his 'repre-
sentatives. and the intelligence committees.
prior to t-he implementation of such activi-
ties. This is consistent with the intentions
of the President AS stated in his letter of
August 41, 1987. to the Chairman and Vice
Chairman of the Senate Intelligence Com-
mittee. It applies -to -all :US. intelligence ac-
tivities. Including collection, analysis. ..coun-
trerinteiligence, and special -activities. ,Addi-
tional Presidential reporting requirements
for special :activities are set forth dm -Section
303, discussed below. This new general pro-
'vision for prior consultation with the -intelli-
gence ?cotrimittees 'would supplement cur-
rent requirements for keeping the commit-
tees -informed of "significant anticipated in-
telligence activities" The requirement for
-prior cer_sultations is -a snore complete re-
flection of the rieed for ie..1,:cntrtive-legisiative
cooperation in the formulation of intelli-
gence policies. POT example. the President
or -his repre.sentatives should ordinarily con-
sult the intelligence committees on pro-
posed Presidential Findings _prior to their
*approval by the President.
Subsection (a) would also retain the ouali-
lication in current, law that nothing con-
tained in the prior consultation or prior
notice requirements shall be construed as
requiring the approval of Inc intelligence
committees as acondunon orr to the
initiation of such activities. T_T:E? par:pile;
provision of existing la:u .11. 015 tel.) of
paragraph 501(a )(1 ).
at) illegal Activities ri-nC
Failures
Subset:lion ,;t'! wou,d Tt:r.!Itir-e the Presi-
dent- to ensure that -any illegal intelligence
activity .or significant intelligence failure 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 or failure. Under -current law,
paragraph 501(a)(3) imposes -this duty OD
the DCI and agency heads, subject to cer-
tain -conditions. The purpose is to place an
unqualified statutory obligation on -the
President to ensure reporting of such mat-
ters to -the -committees. The President
should establish -procedures for review
within .the Executive branch of intelligence
activities that may have been illegal and :for
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-September 25,1987 . -CONGRESSIONAL RECORD r--,SENATE -S 12855
reporting to the Intelligence committees
when a determination is made that there
are reasonable grounds to believe that the
activity was a violation of the Constitution.
statutes, or Executive orders of the United
States. The President should establish pro-
cedures for the reporting of activities deter-
mined to be significant intelligence failures.
The current provision requires the report-
ing of an illegal activity or significant fail-
ure "in a timely fashion." This language is
deleted because of its ambiguity. The intent
is that the committees should be notified
immediately whenever a determination is
made under procedures established by the
President in consultation with the intelli-
gence committees.
Another difference from existing law is
that the requirement to report illegal activi-
ties or significant failures would not be sub-
ject to the preambular clauses in the cur-
rent subsection 501(a) which could be inter-
preted as qualifying the statutory obligation
to inform the intelligence committees.
/0-0 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 intel-
ligence committees to establish procedures
to carry out their oversight obligations.
Subsection (d) is the same as the current
subsection 501(d) that requires the House
and Senate to establish procedures to pro-
tect 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 subsec-
tion 501(e) which makes clear that informa-
tion may not be withheld from the intelli-
gence committees under this Act on the
grounds that providing the information to
the intelligence committees would be unau-
thorized disclosure of classified information
or information relating to intelligence
sources and methods.
Subsection (1) states that the term "intel-
ligence activities," as used in this section, in-
cludes, but is not limited to, "special activi-
ties." as defined in subsection 503(e), dis-
cussed below.
SECTION 503. REPORTING INTELLIGENCE
ACTIVITIES OTHER THAN SPECIAL ACTIVITIES
The new section 502 is intended to be sub-
stantially the same as the current require-
ments of subsections 502(a)(1) and (2) inso-
far as they apply to intelligence activities
other than special activities. This distinc-
tion between special activities and other in-
telligence activities is discussed more fully
with respect to section 503, below.
Fully and Currently Informed
Section 502 would require the Director of
Central Intelligence (DCI) and the heads of
all departments, agencies and other entities
of the United States involved in intelligence
activities to keep the intelligence committees
fully and currently informed of all intelli-
gence 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 de-
partment, agency, or entity of the United
States, including any significant anticipated
intelligence activity. The special procedure
for prior notice to eight leaders in the cur-
rent clause (B) of paragraph 501(a)(1) would
be deleted, since it was intended to apply to
special activities, to be governed by section
503, discussed below.
Section 502 also would provide that, in
satisfying the obligation to keep the com-
mittees fully and currently informed, the
DCI and the heads of all departments and
agencies and other entities of the United
States involved in intelligence activities
.shall furnish -the intelligence committees
any information or material concerning in-
telligence activities (other than special ac-
tivities) 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 requirement is subject to the provision
for protection of sensitive intelligence
source and methods, discussed below.
Protection of Sensitive Sources and Methods
The obligation to keep the intelligence
committees fully and currently informed
under this section is to be carried out with
due regard for the protection of classified
Information relating to sensitive intelligence
sources and methods. This provision is simi-
lar to the second preambular clause in the
current subsection 501(a) which imposes
duties "to the extent consistent with due
regard for the protection from unauthorized
disclosure of classified information and in-
formation 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.
The first prearnbular clause in the current
subsection 501(a) would be deleted. It im-
poses obligations "ttlo the extent consistent
with all applicable authorities and duties,
Including those conferred upon the execu-
tive and legislative branches of the Govern-
ment." This clause creates unnecessary am-
biguity in the law, because it has been inter-
preted by some as Congressional acknowl-
edgement of an undefined constitutional au-
thority of the Executive branch to disregard
the statutory obligations. Recent experience
indicates that legislation qualifying its
terms by reference to the President's consti-
tutional 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 sensitive intelli-
gence sources and methods, discussed above
SECTION 503. APPROVING AND REPORTING
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 policy.
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 organi-
zations as his "eyes and ears," and Congres-
sional power to regulate covert action that
goes beyond information gathering. There is
little support for the view that such special
activities are an exclusive Presidential func-
tion. Congress 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 Congres-
sional mandate is ambiguous, confusing and
incomplete. There -is no express statutory
authorization for special activities; the re-
quirement for Presidential approval of spe-
cial activities applies only to the CIA; and
Presidential approval procedures are not
specified. There is a question whether Con-
gress has intended that the President have
authority to conduct special activities which
are inconsistent with or contrary to other
statutes. The statutory requirements for in-
forming the intelligence committees of spe-
cial activities are subject to misinterpreta-
tion, and the scope of activities covered by
the law is undefined. This bill seeks to
remedy these deficiencies so that covert ac-
tions are conducted with proper authoriza-
tion in the national interest as determined
by the elected representatives of the Ameri-
can people?the President and the Con- _
gress?through a process that protects nec-
essary secrecy.
(a) Presidential Findings
Subsection (a) would provide statutory au-
thority for the President to authorize the
conduct of special activities by departments,
agencies or entities of the United States
when he determines such activities are nec-
essary to support the foreign policy objec-
tives 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 con-
ditions. The importance of this requirement
is underscored by Section 3 of the bill, dis-
cussed later, which prohibits expenditure of
funds for any special activity unless and
until such a presidential Finding has been
issued.
The current Presidential approval provi-
sion in the Hughes-Ryan Amendment (22
USC 2422) requires a finding by the Presi-
dent "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 activi-
ties "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 sup-
port 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 consist-
ent with and in furtherance of established
U.S. foreign policy objectives.
In addition to reflecting these presidential
determinations, Findings must meet five
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 deci-
sion would have to be contemporaneously
made and reduced to a written Finding as
soon as possible but in no event more than
48 hours after the decision is made. This re-
quirement should prevent a President's sub-
ordinate from later claiming to have re-
ceived oral authorization without further
substantiation than the subordinate's un-
documented assertion. It is also consistent
with the President's current policy of re-
quiring written Findings.
Second, paragraph 503(a)(2) would restate
emphatically the current legal ban on retro-
active Findings. It would provide that a
Finding may not authorize or sanction spe-
cial activities, or any aspects of such activi-
ties, which have already occurred. This is
also consistent with the President's current
policy.
Third, 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 way in the spe-
cial activities authorized in the 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 objec-
tive."
Fourth, paragraph 503(a)(4) would require
that each Finding specify, in accordance
with procedures to be established, any third
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S12856
CONGRESSIONAL 4tEGORD'--SENATE September SS, 1987
party, influding any-third country, Which is
not an element eif, eontractor 0!, os' contradt
agent 41 the GS. Govenunent, or is not oth-
erwise subjeot to U.S. Government policies
-and regulatiorts, whom it Is -contemplated
will be used to fund or otherwise participate
In any way in the special activity =concerned.
The purpose is to require the President's ap-
proval and notice to the intelligence com-
mittees When third countries, or private par-
ties -outside normal U.S. government -con-
trols, are used to help implement a covert
-action caeration. The Intent is that proce-
dures be -established In -consultation with
the Intelligence committees to determine
when the involvement of a -third party con-
stitutes use "to fund or -otherwise partici-
pates in a -special activity and to determine
when a private party is not "subject -to U.S.
-Government policies and regulations?'
Fifth, paragraph 503(a)(5) would establish
that a Finding may not authorize any action
That would be inconsistent with or contrary
to 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 conform -its operations to any
federal statutes svhich apply to special ac-
tinties, either directly or as laws of general
-application. This provision is not intended
to require that special activities authorized
in Presidential Findings comply with -statu-
tory limitations which, by their terms, amity
only to another U.S. Government program
or activity. For example, a statutory restric-
tion 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
Defense Department under the Economy
Act. When the Congressional concerns that
led to the restrict-ion on the Defense De-
partment program are relevant to the simi-
lar covert CIA activity, those factors should
be taken into account by the Intelligence
eommittees.
lb) Fatty and Currently Informed
Subsection 503(b)swolild place a statutory
obligation -on Executive branch -officials to
keep the Intelligence committees telly -and
currently -informed of special activities and
furnish the Intelligence committees any 'in-
formation or material 'concerning -special ac-
tivities -which they possess and which is re-
quested by either of the Intelligence -com-
mittees in -order to carry out its authorized
-responsibilities. This subsection -differs in
four :respects from -the -parallel provisions 'of
Section 502 :that apply to -other intelligence
activities.
'The first difference is that the obligation
wonkl be placed -on the President, as well as
on the DCI and the heads of departments,
agencies, and entities of the US. Govern-
ment. The President may have -unique infor-
mation -concerning a -special -activity -that
should be imparted to the committees.
The second difference is that the -obliga-
tion would be placed on the heads of depart-
ments. agencies, -and entities of -the 'U.S.
!Government 'authorized to fund or other.
wise participate In -a special activity"?
rather than just those-directly involved in the
sctiiity. This conforms to the terms -of the
-presidential Finding -requirement in subsec-
tion 503(a)(3).
'The third difference Is that the -require-
anent -to inform the committees of "any sig-
nificant anticipated intelligence ,actiinty-
-would be deleted. In the case of special ac-
tivities, that requirement would be super-
-ceded by the requirements in subsections
503(c) and (d), -discussed below, for report-
ing presidential Findings and -significant
silaanges in special activities, `Va well-as by
-the general provision in subsection 501(ai
-for prior consultations with the intelligence
committees.
The fourth difference is that the oblige-
-lion to Interim the committees would not be
sublect to a general proviso that such obli-
-nation shall be carried out with due regard
for the protection of classified Information
-relating to sensitive intelligence sources and
methods. Instead, a specific -statutory proce-
dure would be established 'in subsection
.5031-c) for limiting the number -of Members
of Congress to whom -information would be
Imparted In exceptionally sensitive cases.
Moreover, sensitive sources and methods
-would also be -protected under the proce-
dures established by the President and the
intelligence _committees pursuant to subsec-
tion 501(c) and by the House of Representa-
tives -and the-Senate pursuant to subsection
501Adi.
(c) Notice of .Findings
Subsection 503(c) would require the Presi-
dent to ensure that any Findings issued pur-
suant to subsection (a), above, shall be re-
ported to the intelligence committees as
soon as possible, but in no event later than
48 hours after it has been signed. If, howev-
er, the President determines it is essential
to limit access to the Finding to meet ex-
traordinary circumstances affecting vital in-
terests of the United States, such Finding
-may be reported to -8 Members Of -Con-
- aress?the Chairman and ranking minority
menibers of the intelligence -committees, the
Speaker and minority leader -of the House
of Representatives, and the -majority and
Minority leaders of the Senate. This proce-
dure is similar to the existing provision in
clause