LETTER TO MR. JAMES M. FREY FROM GEORGE L. CARY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP77M00144R000600120001-5
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 10
• Document Creation Date: December 19, 2016
• Document Release Date: October 25, 2005
• Sequence Number: 1
• Publication Date: June 27, 1975
• Content Type: LETTER

BASIC IS FILED IN H.R. 2 1 o~
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WASHINGTON, D.G. 20505
Mr. James M. Frey, Assistant Director 2 7 JUN 1975
for Legislative Reference
Office of Management and Budget
Washington, D. C. 20503
Attention: Mr. William V. Skidmore
Dear Mr. Skidmore:
This is in response to your request for the views of the Central
Intelligence Agency on H. R. 2635, "To amend the Privacy Act of 3.974.
The bill would alter section 3 (d) (2) (B) (i) of the Act, regarding an
individual's right to correct personal information held by Government
agencies, and would also strike section 3(j)(1). This section authorizes the
Director of Central Intelligence to promulgate rules exempting any system of.
CIA records from certain requirements of the Act. I will confine my comments
to the proposed deletion of this partial CIA exemption.
In drafting the Privacy Act, Congress recognized that "certain areas, of
Federal records are of such a highly sensitive nature that they must be
exempted" (House Report 93-1416). Accordingly, Congress exempted systems
of records "specifically authorized under criteria established by an Executive
order to be kept secret in the interest of national defense or foreign policy"
[subsection (k) (1)] , and Central Intelligence Agenc records
(j) (1)] from portions of the Act. Sections of the Act which do ap[sub
plys totth s
Agency restrict the dissemination of records to those for specific enumerated
purposes, require it to maintain a listing of each disclosure of a record for
at least five years, and publish annually in the Federal Register a general
description of our systems of records concerning American citizens or
permanent resident aliens.
The'basic mission of this Agency is to provide our nation's ol.ic ~.
with the best possible intelligence on foreign developments and threats. TheexT
system of records established in the Agency is designed to support this
mission. Our ability to provide accurate and current intelligence to the
President, the National Security Council,. and to the Congress depends heavily
upon the acquisition and maintenance of productive sources and effective methods
of collection and analysis. Preservation of these sources and methods is
absolutely dependent on their secrecy. Technical collection efforts can often
be easily nullified if the target country is aware of the collection effort.
And, of course, human sources will refuse further cooperation if they believe
there is a substantial danger that their cooperation will be revealed. I believe
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it was because of this essential secrecy that Congress, in the National Security
Act of 1947, as amended (50 U.S. C. 403) directed that,
"The Director of Central Intelligence shall
be responsible for protecting intelligence
sources and methods from unauthorized
disclosure."
Although some CIA information can be protected by the section (k) (1)
exemption for national defense or foreign policy information, this exemption
would not fully protect Intelligence Sources and Methods information contained
in the Agency's system of records. An intelligence document can reveal
sources and methods and warrant protection even though the substantive
information conveyed does not jeopardize the national defense or foreign
policy. An example may help explain this. A and B, U. S. citizens, attend
a scientific conference abroad of foreign intelligence interest to the United
States. A voluntarily provides the Agency confidential information on the
conference and includes information concerning a, or a foreign asset reports
on the conference and includes information on A and B. Disclosure to B
of the information about him in many cases would reveal A or the foreign
asset as the confidential source of the information.
In summary, H. R. 2635, by striking the Agency's exemption from
certain requirements of the Privacy Act, would jeopardize the Intelligence
Sources and Methods which are vital to 'the Agency's ability to fulfill its
unique mission. I must, therefore, oppose the bill.
Sincerely,
SIGNED
George L. Cary
Legislative Counsel
Distribution:
Orig - Addressee
1 - OGC
1 - DDA
X41- OLC Subject (OMB)
1 - OLC Chrono
1 - OLC leg file
1 - DFM Chrono
OLC: DFM: cg (19 Jun 75)
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 BASIC. FILED IN H. R. 61 leg file
Approved Forte RE20PA/I1,L2~1I.L4N-&PXME44R00060d~i60a15-51035/a
Mr. James M. Frey, Assistant Director
for Legislative Reference
Office of Management and Budget
Washington, D. C. 20503
2 7 JUN 1975
This is in response to your request for our views on the Department
of Justice's draft bill concerning the dissemination and use of criminal justice
information. The Central Intelligence Agency is strongly committed to the
underlying objective of the proposed legislation which is to protect the right
of privacy of citizens of the United States.
It is the position of this Agency that the Central Intelligence Agency is
not a "criminal justice agency." However, we believe that the definition of
"criminal justice agency" in the draft bill should be clarified to avoid any
question of this fact in that legislation. If the Central Intelligence Agency
were considered to be within that definition, it would be subject to requirements
in conflict with its statutory charter. As a non-criminal justice agency,
however, the Agency's access to important foreign intelligence information
would be seriously impaired by the bill.
It has been ascertained in discussions with the Department of Justice
that it was not intended to characterize the Central Intelligence Agency as a "criminal
justice agency." This intent is consistent with and indeed mandated by the
proscription of section 102 (d) (3) of the National Security Act of 1947:
. That the Agency shall have no police,
subpoena, law-enforcement powers, or internal-
security functions ...
The Central Intelligence Agency's scope of authority is limited to
foreign intelligence matters; it is definitely not a criminal justice agency.
There is, however, considerable ambiguity in the definition of "criminal
justice agency" in section 102(6) of the bill. For instance, while the Agency's
mission is not the detection of criminal offenses as such, foreign intelligence
information sometimes has a bearing on criminal conduct, e.g., international
narcotics trafficking or foreign terrorist activities. Thus, the language of
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sections 102(5) and 102(6) could give rise to the argument that this Agency
is a "criminal justice agency" to the extent that it obtains information relating
to the "detection of ... criminal offenses." I strongly recommend that the draft
be amended to make clear that the Central Intelligence Agency is not a "criminal
justice agency." (Section I of the attached memorandum discusses the necessity
for this clarification in more detail.)
While the Central Intelligence Agency is not to be considered a criminal
justice agency, as a non-criminal justice agency under the bill it would be
confronted with requirements which could impinge upon its essential responsi-
bilities by barring Agency access to important foreign intelligence information.
The dissemination of foreign intelligence is a principal statutory function
of the Central Intelligence Agency. Section 102 (d) (3) of the National Security
Act of 1947 imposes on the Agency a duty
... to correlate and evaluate intelligence relating
to the national security, and provide for the
appropriate dissemination of such intelligence
within the Government using where appropriate
existing agencies and facilities ...
Moreover, section 102(e) of the National Security Act of 1947 provides:
.. To the extent recommended by the National
Security Council and approved by the President,
such intelligence of the departments and agencies
of the Government ... relating to the national
security shall be open to the inspection of the
Director of Central Intelligence, and such intelligence
as relates to the national security and is possessed by
such departments and other agencies of the Government .. .
shall be made available to the Director of Central
Intelligence for correlation, evaluation, and
dissemination ...
Certain provisions of the draft bill would impinge on this responsibility by
preventing the Agency from obtaining foreign intelligence information in
cases where such information includes items defined in section 102 as "criminal
justice information." For example, the limitations in sections 204, 206 (a),
and 201(d) would preclude Agency receipt of information held by foreign
and domestic criminal justice agencies concerning the criminal activities
of a foreign terrorist. I recommend that the draft be appropriately modified
to take into account the occasional necessity of disseminating to foreign intelligence
agencies material which section 102 defines as "criminal justice information"
and the need to protect such information in their possession. (Section II
of the attached memorandum discusses in greater detail the .problems that
the Agency would be confronted with under the draft bill as a non-criminal
justice agency.)
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I would like to propose for your consideration the amendments to
the draft bill set forth in section III of the attached memorandum. I believe
they would satisfy the above-mentioned considerations while preserving
the intent and objectives of the legislation.
Sincerely,
,;SIGNED
Acting Legislative Counsel
Distribution:
Orig - Addressee
- OMB Liaison
1 - HR 61 file
1 - OLC Chrono
1 - WPB Chrono
OLC: WPB: cg (26 Jun 75)
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SUBJECT: Department of Justice Draft Bill on Criminal Justice Information
1. The regulatory provisions proposed in the draft bill would apply
to certain kinds of information collected or compiled by "criminal justice
agencies. " These provisions would apparently extend to information from
foreign sources, concerning foreign citizens and relating to conduct made
criminal under foreign laws. The term "criminal justice agency" is defined
in section 102(6), inter alia, as an agency which performs "criminal justice
activities. " The term "criminal justice" is defined in section 102 (5) as referring
"to the activities of a criminal justice agency relating to protection against,
detection of, or investigation of criminal offenses .... " (emphasis added).
2. The foreign intelligence mission of the Central Intelligence Agency
is not directed at the detection of criminal offenses as such; yet in its pursuit,
information is sometimes obtained which has a bearing on criminal conduct,
such as international narcotics trafficking or foreign terrorist activities.
The definitions of "criminal justice" and "criminal justice agency" in sections
102(5) and 102(6) respectively are ambiguous and could give rise to an argument
that the Central Intelligence Agency is a criminal justice agency to the extent
that it gathers information relating to the "detection of . , . criminal offenses"
in connection with such matters.
3. The Central Intelligence Agency is not a criminal justice agency.
It was established by the National Security Act of 1947 to provide the President
and his policy advisers with foreign intelligence information. In addition,
that Act provides:
... That the Agency shall have no police, subpoena,
law-enforcement powers, or internal-security
functions ... (50 U . S . C . 403).
4. There are at least three reasons why the Central Intelligence Agency
is not a "criminal justice agency. "
(a) The designation of the Central Intelligence Agency
as a "criminal justice agency" would be contrary to existing
law and efforts within Congress and the Executive branch to
insure that all legislation clearly states that this Agency
has no law-enforcement or criminal justice purpose.
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(b) As a "criminal justice agency, " the Central Intelligence
Agency would be subject to the regulatory provisions of Title 2
of the draft concerning the collection, dissemination, and use of
criminal justice information by criminal justice agencies and the
provisions for the administration and enforcement of these
provisions by the Commission created in Title 3. Some of these
provisions would conflict with the Director's statutory obligation
to protect Intelligence Sources and Methods (50 U . S . C . 403);
with the Agency's principal statutory duty to correlate and
evaluate foreign intelligence and to provide for its appropriate
dissemination within the Government using where appropriate
existing agencies and facilities (50 U . S . C . 403); and with the
Agency's general exemption from provisions of any other law
which would require the publication or disclosure of Agency
organization, functions, or personnel (50 U.S. C. 403). Among
the provisions which :raise potential conflicts are the following:
--Sections 204 and 206(a), which provide for
the exchange, dissemination and use of criminal justice
information for non-criminal justice purposes, would
preclude the dissemination of foreign intelligence
information to appropriate domestic and foreign
consumers where such intelligence contained "criminal
justice information. "
--Section 204(c), which requires non-criminal
justice recipients of arrest record or criminal record
information to notify the subject individual, could result
in alerting foreign intelligence subjects of the Agency's
interest in their activities.
--Section 208, which grants the subject individual
(presumably including foreign citizens) access to arrest
and criminal record information for personal inspection,
could under given circumstances result in betraying
this Agency's interest in a foreign intelligence subject or
in compromising; a sensitive liaison relationship with a
foreign service.
--Section 209 (b) (2), which would require the
identifying and recording of the personnel with access
to criminal justice intelligence information within an
agency to which such information has been disseminated,
could result in disclosing the identities of covert Agency
officers.
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--Section 302 (a) (3), which empowers the
"Commission on Criminal Justice Information" to
investigate allegations of non-compliance with the Act,
could result in Commission access to the most sensitive
Intelligence Sources and Methods at the prompting of
each allegation of non-compliance.
--Section 302 (a) (4) would require the Agency
to provide the Commission all information necessary to
compile a public directory of "criminal justice information
systems" identifying their nature, purpose, and scope.
This section could result in the compromise of Intelligence
Sources and Methods to the extent that it requires dis-
closure of Agency holdings on, or interest in, a foreign
intelligence subject.
(c) Application to the Central Intelligence Agency of the
requirements of Title 2 whenever foreign intelligence information pertains
to criminal conduct would undermine the Agency's essential function of
gathering, evaluating, correlating, and disseminating foreign positive
intelligence in support of the foreign policy-making process. In order
to comply with the Act, the Agency would be required to analyze
foreign intelligence information against criminal law standards and
arrange its information systems and the pattern of intra-Agency intelli-
gence dissemination according to criminal justice values which may be
irrelevant to and indeed impede the foreign intelligence process.
5. It is strongly recommended that section 102 (5) of the draft bill be
amended to make clear that foreign intelligence collection is not a criminal
justice activity.
1. The Central Intelligence Agency is not a criminal justice agency..
As a non-criminal justice agency, however, the Agency's access to important
foreign intelligence information would be seriously impaired by the draft bill.
2. The Central Intelligence Agency has no general interest in obtaining
criminal justice information per se. In support of the Director's position as the
President's principal foreign intelligence advisor, this Agency must have access
to information characterized in the draft bill as "criminal justice information"
where it pertains to a foreign intelligence subject. Indeed, section 102(e)
of the National Security Act of 1947 provides:
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... To the extent recommended by the National Security
Council dnd approved by the President, such intelligence
of the departments and agencies of the Government .. .
relating to the national security shall be open to the
inspection of the Director of Central Intelligence,
and such intelligence as relates to the national security
and is possessed by such departments and other agencies
of the Government ... shall be made available to the Director
of Central Intelligence for correlation, evaluation, and
dissemination ...
Moreover, section 102(d)(3) of the National Security Act of 1947 imposes on the
Agency the duty
.. to correlate and evaluate intelligence relating
to the national security, and provide for the
appropriate dissemination of such intelligence
within the Government using where appropriate existing
agencies and facilities ....
It is conceivable under given circumstances that the Agency would require
access to any one of the five classes of information characterized as "criminal
justice information" in the bill. This is especially true because each class
could include information from foreign sources, concerning foreign citizens
and relating to conduct made criminal under foreign laws. The limitations in
sections 204 and 206(a) on the collection, dissemination, and use of criminal
justice information for non-criminal justice purposes would preclude Agency
receipt of foreign intelligence information held by domestic agencies and, by
implication of section 201(d), held by foreign governments where such information
falls within the definition of "criminal justice information" in the bill. Such
restrictions would impinge upon the Agency's statutory responsibilities
referred to above.
3. It is noted that section 205(b) would permit non-criminal justice
agencies to use criminal justice information in screening applicants or for approving
or reviewing security clearances. The Central Intelligence Agency may also wish
to obtain criminal justice information on individuals who are being considered
as possible intelligence sources or for operational purposes without initially
notifying the individuals under consideration.
4. In those cases where the Agency would be able to obtain criminal
justice information under sections 204(a) or (b), it would be required to
notify the subject of such records under section 204(c). This notification could
result in betrayal of Agency interest in a foreign intelligence subject.
5. It is strongly recommended that the draft bill be appropriately modified
to take into account not only the need for material defined in the bill as "criminal
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justice information" by foreign intelligence agencies, but also the need to protect
such information in their possession and in some cases protect the fact that they
have sought it or have it.
1. It is believed that the suggested amendments below would satisfy
the considerations and statutory conflicts referred to in sections I and II of
this memorandum, while preserving the intent and objectives of the legislation.
2. Proposed Amendment to H. R. 61:
(a) Strike section 102(5) and insert in lieu thereof
the following:
--Section 102(5) "Criminal justice" refers to
the activities of a criminal justice agency relating to
protection against, detection of, or investigations of
criminal offenses as such, or to the apprehension,
detention, pretrial release, posttrial release, prose-
cution, defense, correctional supervision or rehabili-
tation of accused persons or criminal offenders,
adjudication of a charge, or processing requests for
executive clemency, but shall not refer to foreign
intelligence collection activities where undertaken by
an agency of the United States authorized to conduct
such activities.
(b) Insert after section 204(i) the following new section:
(j) In the interests of promoting all-sources
intelligence production, and in order further to implement
sections 102 (d) (3) and 102 (e) of the National Security Act,
as amended, information defined in section 102 of this
Act as "criminal justice information" may be made available
to the Director of Central Intelligence as directed by the
National Security Council, where necessary for foreign
intelligence purposes.
(c) Insert after section 103(b)(8) the following new section:
(9) information relating to foreign intelligence
sources and methods designated for protection from
unauthorized disclosure pursuant to 50 U . S . C . 403,
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