LETTER TO HONORABLE PETER W. RODINO, JR. FROM W. E. COLBY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP77M00144R000800040004-9
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 9
• Document Creation Date: December 9, 2016
• Document Release Date: July 25, 2001
• Sequence Number: 4
• Content Type: LETTER

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CENTRAL INTELLIGENCE AGENCY
WASH INGTON, D.C. 20505
Honorable Peter W. Rodino, Jr., Chairman
Committee on the Judiciary
House of Representatives
Washington, D. C. 20515
I am offering for your consideration our comments on H. R. 61,
a 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 I-I . R. 61 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 I. R. 61.
The language of H. R. 61 was originally drafted in the Department
of Justice. It has been ascertained in discussions with that Department
that it was not intended to characterize the Central Intelligence Agency as
a "cr. iminal 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 14. R. 61
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 H. R. 61 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 H. R. 61 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 11. R.. 61 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
I-I . R. 61 as a non-criminal justice agency. )
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I would like to propose for your consideration the amendments to
H. R. 61 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.
The Office of Management and Budget has advised there is no objection
to the submission of this report from the standpoint of the Administration's
program.
Sincerely,
Director ,?/
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SUBJECT: II . R. 61, Criminal Justice Information
1. The regulatory provisions proposed in II . R. 61 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 H. R. 61 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 H. R. 61 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 H. R. 61.
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 H. R. 61 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 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 ...
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 H. R. 61. 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 Il. R. 61. 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 II. R. 61 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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TO: (Officer designation, room number, and
15 -
OFFICER'S I COMMENTS (Number each comment to show from whom
Attached for your signature are our
comments on H. R. 61 and S. 1428,
companion bills on the use and
dissemination of criminal justice
information, now pending before the
House Judiciary Subcommittee on
Civil and Constitutional Rights and
the Senate Judiciary Subcommittee
on Constitutional Rights respec-
tively. It appears that the
Chairmen of these Subcommittees,
Representative Edwards and Senator
Tunney, are preparing to move
rapidly on legislation in this area.
We have not been asked for our views
on this legislation, but we believe
these unsolicited comments are in
order, because there are ambiguitie
lurking in the bill which could
cause problems for the Agency.
H. R. 61/S. 1428 is identical to the
Department of justice's draft bill
now pending before OMB. This
office has reported to OMB on that
draft legislation and you may
recall approving our comments on
27 June 1975. The attached comment
are virtually identical to that OMB
report.
As you see, this report consists of
two parts: a covering letter and a
memorandum. It has been coordinate
with OGC, DDA, DDO, and the Directo
of Security
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