LETTER TO DAVID A. STOCKMAN FROM STEPHEN S. TROTT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86B00338R000200170001-3
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 21, 2016
• Document Release Date: August 27, 2008
• Sequence Number: 1
• Publication Date: March 23, 1984
• Content Type: LETTER

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Central Intelligence Aay^q
23 March 1984
Air. David Sitrin
Deputy Associate Director
for National Security
Office of Management and Budget
Washington, D.C. 20503
Dear Dave:
I have enclosed a 'copy of a letter which was sent to
you by the Department of Justice. I believe this letter
resolves the concerns which you had initially raised.
Consequently it is our intention to send our legislative
package to the Hill this afternoon.
Sincerely,
itzwater
Harry U_
Deputrector
or
Administration
Enclosure
As Stated
OGC kmg (23 Mar 84)
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STAT
STAT
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 U.S. Dtiartment or justice
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Criminal Division
Assistant Attorney General Washington, D.C. 20530
. /5
Honorable David A. Stockman
Director, Office of Management
and Budget
Washington, D.C. 20503
Dear Mr. Stockman:
This letter is in response to your request for the views
of the Department of Justice on the Central Intelligence Agency
(CIA) draft bill to authorize appropriations for fiscal year
1985.
This draft bill contains seven chapters which are
entitled: (I) Intelligence Activities, (II) Intelligence
Community Staff, (III) Central Intelligence Agency Retirement and
Disability System, (IV) Modification of Certain Naturalization
Requirements, (V) Amendments to the Classified Information
Procedures Act, (VI) Administrative Provisions Related to
Intelligence Agencies, and (VII) General Provisions. Titles I,
II, III, and VII cover matters which are unrelated to the
concerns of the Department of Justice; therefore, our views will
be provided only as to Titles IV, V, and VI.
Title IV - Modification of Certain Naturalization Requirements
Immigration and Nationality Act Amendment
Section 401 would amend Section 316 of the Immigration and
Nationality Act, 8 U.S.C. ? 1427, to authorize the waiver of
three requirements for naturalization of persons who have made
"significant" contributions to the national security, or to the
national intelligence mission. The requirements to be waived are
the residency and physical presence requirement, requirements
imposed on members of certain organizations, and the requirement
that the petition be filed in the court having jurisdiction over
petitioner's place of residence. The waiver may be granted
whenever the Director of Central Intelligence determines that a
petitioner, otherwise eligible for naturalization, has made such
a significant contribution, and the Attorney General and the
Commissioner concur.
We recognize the advantage of the suggested procedure to
the intelligence agencies, and that United States citizenship is
a great reward, indeed, perhaps the ultimate reward.
Nevertheless, citizenship has never been lightly bestowed nor
lightly considered. The Department has traditionally recommended
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against enactment of legislation granting citizenship, or
honorary, citizenship, on policy grounds. Other current
legislation allows a number of petitions to be filed at the
instance of CIA, which petitions are classified and considered in
chambers by the court.
The proposed Section 401 would allow a petition for a
person eligible under other legislation to be naturalized without
regard to his physical presence or the jurisdiction of the court.
Section 316 presently provides that in the case of a person
employed by CIA, the requirement of an uninterrupted period of at
least one year of physical presence in the United States may be
complied with at any time prior to filing a petition for
naturalization. The strictures on physical presence and
residence within the jurisdiction of the court are not such as
would prevent naturalization, but are enough to provide for a
minimum of contact and residence in this country before
naturalization is granted.
The Department supports the proposed Section 401, in
principle. Our support, however, is conditioned upon the advance
approval of the Attorney General being obtained in each
individual case in which a waiver of the three specified
requirements for naturalization is sought. We understand that
the CIA is in the process of consulting with the Immigration and
Naturalization Service concerning this proposed Section.
Title V - Amendments to the Classified Information
Procedures Act
Section 501 of the proposed bill amends sections 3 and 5
of the Classified Information Procedures Act (CIPA), 18 U.S.C.
app. (Supp. V 1981) by expanding coverage of the Act to include
classified information which became known to the defendant
through means other than the discovery process or judicial
proceedings in the case at issue, and by extending the
nondisclosure provisions of the Act to include disclosures of
classified information made outside the context of the case at
issue. The Department opposes enactment of this section of the
bill.
Specifically, Section 501(a) would amend section 3 of CIPA
by authorizing a court to issue a protective order reaching
classified information that became known to the defendant outside
of the criminal discovery process,. Presently section 3 provides
that:
"Upon motion of the United States, the
court shall issue an order to protect against
the disclosure of any classified information
disclosed by the United States to any defendant
in any criminal case in a district court of the
United States."
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The proposed amendment to Section 3 would authorize the court to
prohibit any disclosure of classified information "known by or in
the possession of any defendant."
Section 501(b) would amend section 5 of CIPA which
presently requires the defendant to notify the government in
advance if he "reasonably expects to disclose or to cause the
disclosure of classified information in any manner in connection
with any trial or pre-trial proceeding involving the criminal prosecution of such defendant ... " CIA's proposed amendment
would require the defendant to give advance notice to the
government if he expects to disclose or to cause the disclosure
of classified information "in any manner after an indictment or
in connection with any trial or pre-trial proceeding ... .
Likewise, the proposed amendment would prohibit disclosure by the
defendant of classified information "in any form or manner,
including publication, ... after an indictment or in connection
with a trial or a pre-trial proceeding" until notice has been
given to the government and it has been afforded a reasonable
opportunity to seek a determination from the court pursuant to
the procedure set forth in section 6 of CIPA.
Finally, Section 501(b) would amend section 5 of CIPA to
require that the defendant file under seal the notice of
classified information that he reasonably expects to disclose.
As presently enacted, CIPA prohibits the disclosure of
classified information by a defendant in conjunction with all
phases of any criminal case involving the prosecution of that
defendant, unless the court, after pretrial proceedings under the
Act, rules that the information is relevant and admissible. The
purpose of CIPA is to prevent a defendant from "graymailing" the
government through disclosure of classified information during
the course of the prosecution. Since its enactment in 1980, CIPA
has been an effective tool in preventing such disclosures. CIA's
proposed amendments go beyond the original purpose of CIPA and
would authorize a total "gag order" on a criminal defendant.
These amendments would allow a court to prohibit disclosure of
classified information in a context completely unrelated to the
criminal prosecution.
The Department has been informed that the CIA will
withdraw the proposed Section 501.. A study group comprised of
representatives of this Department and the CIA will attempt to
formulate a proposal which will be mutually acceptable.
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Title VI - Administrative Provisions Related to
Intelligence Agencies
Avoidance of Penalty for Mandatory Retirement
Prior to Age 62
Section 602 of the CIA draft bill would amend section 301
of the Omnibus Budget Reconciliation Act of 1982, Public Law
97-253. Section 301 of the Reconciliation Act penalizes early
retirees under "any Government retirement system" by restricting
cost of living increases. It presently covers employees who
retire for both voluntary and mandatory reasons. CIA's proposed
amendment would eliminate this penalty for CIA personnel who
retire under the mandatory retirement provisions of the Central
Intelligence Agency Retirement and Disability System. The
Department does not oppose enactment of this Section.
Protection of Cover for CIA Personnel
Section 603 of the bill would amend section. 5 of the
Central Intelligence Agency Act of 1949, 50 U.S.C. ? 403f, by
adding a new subsection which would authorize the CIA to "tare
affirmative measures to preserve, notwithstanding any other
provisions of law, the confidentiality of the identity of any
current or former Agency officer or employee whose intelligence
relationship with the Government is classified ...
These affirmative measures include authorizing the CIA to direct
that such persons testify in court proceedings under a pseudonym,
and to utilize employment backgrounds devised by the Agency as
long asadvance theltruetname, identity, or e emcourt and the ployment background
aets r
is not material to the proceeding.
The Department has been informed that the CIA will
withdraw the proposed Section 603. A study group comprised of
representatives of this Department and the CIA will attempt to
formulate a proposal which will be mutually acceptable.
CIA Performance of Security - Related Duties
Section 604 would amend section 5 of the Central
Intelligence Agency Act of 1949, 50 U.S.C. ? 403, by adding a
new subsection which would authorize the CIA to accept a
delegation of authority from the Administrator of General
Services to protect persons and property under Agency charge and
control. CIA would be allowed to accept this delegation of
authority notwithstanding section 102(d)(3) of the National
Security Act of 1947 which expressly provides that Agency
shall have no police, subpoena, law-enforcement powers, internal security functions."
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The powers to be given the CIA under this section to
protect persons and property are contained in 40 U.S.C. ? 318,
which provides that "such special policemen shall have the same
powers as sheriffs and constables upon such Federal property to
enforce the laws enacted for the protection of persons and
property ... and to enforce any rules and regulations made and
promulgated by .. duly authorized officials ... " This
section would also give CIA the authority to promulgate rules and
regulations pursuant to 40 U.S.C. ? 318a.
This Department supports the enactment of the proposed
Section 604, in principle.
Administrative Discretion of the CIA
Section 605 would amend the CIA Act of 1949 by adding a
new provision (to be codified at 50 U.S.C.- ? 403n) designed to
shield from judicial review under the Administrative Procedures
Act, "personnel, security and other administrative action." The
proposed section states, "For the purpose of any other law,
actions taken by the Central Intelligence Agency shall be deemed
to be committed to the discretion of the Central Intelligence
Agency by law." The Department opposes enactment of this
section.
The Department has consistently maintained in court that
judicial review of these actions is precluded by section 10 of
the Administrative Procedures Act, 5 U.S.C. ? 701(a)(2), as
actions committed to agency discretion by law. Although this
position has been challenged in recent litigation, we are not
aware that it has become necessary to make more explicit by way
of legislation the unreviewability of these Agency actions.
Furthermore, any effort to foreclose judicial scrutiny of CIA
actions is likely to generate controversy in Congress that may
well prove counterproductive.
Finally, the language of section 605 may be broader than
intended. That section arguably would make unreviewable all
actions taken by the Central Intelligence Agency.
Thank you for the opportunity to present our views on this
draft proposal. If we can be of any further assistance regarding
any of the points raised above, please contact us.
Sincerely,
_,/
Stephen S. Trott
Assistant Attorney General
Criminal Division
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