STATUTORY CHARTERS FOR INTELLIGENCE ORGANIZATIONS AND FUNCTIONS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80B01495R000800050002-7
• Release Decision: RIPPUB
• Original Classification: S
• Document Page Count: 13
• Document Creation Date: December 12, 2016
• Document Release Date: October 18, 2000
• Sequence Number: 2
• Publication Date: December 19, 1975
• Content Type: REPORT

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Statutory Charters for
Intelli ence Or anizations and Functions
1. Identification of Issues
The mayor organizations, responsibilities, and functions
of the Intelligence Community - with few exceptions - are not
derived from statute; they are largely based on broad executive
authority of the President for the conduct of foreign affairs
and the command of the armed services, and - to some extent -
on the broadlauthorities of the Director of Central Intelli-
gence (DCI) and the Secretary of Defense to conduct the operation
of their agencies.
Only the correlation/evaluation (or production) and coordi-
nation functions of the DCI/CIA are specifically recognized in
statute; there are no similar statutory provisions for tfie con-
duct of overhead reconnaissance, clandestine human source col-
lection, counterintelligence, electronic intercept, or covert
action. In terms of organization, only CIA has a specific
statutory basis; there are no specific statutes establishing
the National Security Agency (NSA), the Defense Intelligence
Agency (DIA), the National Reconnaissance Office (NRO), the
FBI, the Service Cryptologic Agencies (SCAs), or other Service
military intelligence entities. Some of the functional and
organizational arrangements are recognized in NSC intelligence
directives, other Presidential directives, DCI directives, DOD
directives, or Service or JCS directives; some - the NRO, for
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example - rest on no formal directive, but on informal, written
interagency agreements. Almost all of these directives/memoranda
are, of course, classified to such an extent that they are un-
available to the public at large, have only recently been pro-
vided to some members of Congress, and are available to only a
small circle in the Executive Branch. Some of the organizational
and functional arrangements were subsequently recognized in
specific legislation (NSA, FBI, and DIA), and most are informally
recognized through an unwritten appropriations process.
The absence of statutory or administrative documents re-
garding these organizations, their functions, and the responsi-
bilities gives rise to three major legal/policy issues:
(1) Would specific or more explicit public recognition -
in statute, executive order, or other document - of
the functions and organizations improve their activ-
ities or at least make them more respectable in the
public eye?
(2) Should this official and public recognition include
prohibitions or limitations on the activities of these
organizations that would provide a greater degree of
public confidence in their lawfulness?
(3) Would a variety of critical functions now performed
by the Intelligence Community (such as covert action,
electronic intercept, counterintelligence, protection
of sources and methods, etc.) be more defensible
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legally and politically, arouse less suspicion, and
be more effectively performed if officially and publicly
,recognized?
Since the more specific functions mentioned in #3 above are
addressed in separate papers in detail, no specific effort is
made to cover them further in this paper.
II. Factual Background and Legal Discussion
A. Present System of Organizational and Functional
Assignments and Limitations
The specific statutes dealing with the organization
and the functions of the Intelligence Community are (1) the
National Security Act of 1947 (50 U.S.C. 403) and (2) the Central
Intelligence Agency Act of 1949 (50 U.S.C. 403a-j). These
statutes serve as the organic acts by which the CIA was estab-
lished and is currently administered. There are no similar
statutes for any other, intelligence agency, and the basis for
their creation and current operations is heavily dependent on
the broad executive responsibility of (1) the President for the
conduct of foreign affairs, as head of the National Security
Council, and as Commander in Chief; (2) the DCI in his role as
coordinator of the intelligence activities; (3) the Secretary
of Defense as head of the Department of Defense; and (4) the
separate Military Departments, the Attorney General, and other
department or agency heads.
The major current organizational/functional assign-
ments and their legal basis are as follows:
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(1) DCI/CIA - The statutes noted above provide specifically for
the CIA functions of advising the NSC on intelligence matters,
coordinating intelligence activities, and correlating and
evaluating intelligence; in addition, these statutes provide
that CIA will perform "such additional services of common
concern" and "such other functions and duties related to in-
telligence" as the NSC directs. In-a series of specific
classified issuances (NSC intelligence directives), the NSC
has directed DCI/CIA to assume, among other duties, certain
responsibilities for coordinating production, establishing
requirements, conducting clandestine human source collection,
interpreting photography, and accomplishing some overt col-
lection both overseas and in the u.S. Certain other current
CIA functions - for example, satellite collection, communica-
tion support operations, and covert, action - are not specifically
covered in this series of directives, but have been established
and conducted by CIA under less formal Presidential/NSC
issuances and the broad authorities implicit in the 1947 and
1949 acts.
The 1947 statute also provides specific limitation on the
intelligence activities of CIA, namely that CIA has "no
police, subpoena, law enforcement, or internal security
functions."
(2) NSA - NSA's current intelligence functions - intercept and
processing of foreign communications - were assigned by
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Presidential memorandum in 1952 and reflected in an NSC
intelligence directive at that time. Although the use of
NSC intelligence directives (NSCIDs) had previously been
used primarily to assign functions to an existing organiza-
tion (CIA), this NSCID directed the Secretary of Defense to
act as executive agent of the government for the conduct of
these activities and to establish NSA as a separate agency
to conduct these functions.
Apart from the assignment of these functions to NSA, the
Congress had clearly recognized the legality of these activ-
ities - explicitly in 1950 when 18 U.S.C. 798 provided for
specific criminal penalties for the unauthorized disclosure
or prejudicial use of communications intelligence informa-
tion. Subsequently, the Omnibus Crime Control and Safe -
Streets Act of 1968, through exception, recognized the
constitutional power of the President to authorize electronic
surveillance as he deems necessary to obtain foreign intel-
ligence information deemed essential to U.S. security. More
specifically, the Congress passed two laws directly related
to NSA which provided that agency unusual authorities re-
garding employment and classification (P.L. 86-36 of 1959)
and employment termination (P.L. 88-290) of 1964. While
these statutes did not recognize NSA's assigned functions
as such, the highly classified nature of its functions
was the explicit motivating factor.
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(3) National Programs (NRO) - The function of this program
(satellite reconnaissance) and the existence of the NRO organi-
zation are officially classified; as a result, neither.the
function nor the organization has a. specific statutory basis.
The NRO was established as a separate Defense agency reporting-
to the Secretary of Defense by DOD-CIA agreement in 1965. The
Secretary of Defense, of course, has broad authority under the
National Security Act of 1947 (50 U.S.C. 402-3) and the Defense
Reorganization Act of 1958 (10 U.S.C. 12) to control and re-
organize Defense activities. These statutes also have pro-
visions for reporting these actions to Congress for possible
rejection by the Congress; given the classified nature of
NRO activities, no formal reporting appears to have occurred.
(4) DIA - DIA was established in 1961 by direction of the Secretary
of Defense under the reorganization authority granted by 10
U.S.C. 125. The Secretary's plan was reported to the Armed
Services Committee as required by statute and DIA was sub-
sequently established.
(5) FBI - There is no statute establishing the FBI. Under pro--
vision of 28 U.S.C. 533, the Attorney General may appoint
officials "(1) to detect and prosecute crimes against the
United States, (2) to assist in the protection of the Pres-
ident, and (3) to conduct'such investigations regarding of-
ficial matters under the control of the Department of Justice
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and the Department of State as may be directed by the
Attorney General." Other statutes, such as the Congressional
Assassination, Kidnapping and Assault Act, vest in the Bureau
special responsibilities, but its principal investigatory
authorities appear to rest upon Executive Order and Pres-
idential statements or directives placing these responsibilities
under the authority of the Bureau.
(6) Service Cryptologic Agencies (SCAs)/Military Intelligence
Agencies - The SCAs predated the establishment of NSA and
now operate under the direction of NSA for their communica-
tions intercept missions. All were established by the.
Service Chief of Staff pursuant to the broad functions and
duties assigned to the Services
military intelligence agencies,
by statute. The various
which perform a wide variety'
of intelligence functions, also were
Service responsibilities for defense
B. Present State of the Law
ursuant
establishe ;to broad
of the United States.
(1) Statutor Basis: Except for the DCI/CIA, there
is a notable absence of specific statutory basis
for the organization of and functions performed
by the Intelligence Community. Almost all are
derivative of broad executive authorities entrusted
in the President, the DCI, the Secretary of Defense,
and the Military Services. In almost all cases,
because of security concerns, these authorities
have been exercised through classified directives
and memoranda such that the public at large, the
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Congress as .a whole, and most elements of the
executive branch are unaware of the organizational
arrangements, the assignment of functions and
duties, and nature of their activities. Nonethe-
less, a small group of senior Congressmen was
privy to the basic organization and functions such
that a semblance of budgetary appropriations process
could be carried out.
It is clear that the Congress did not envision,
either in the establishment of CIA or in any specific
subsequent legislation, the large, complex, and
expensive organizational and functional arrangement
that has come. to pass. More specifically, the de-..
velopment of CIA as a major element in intelli-
gence collection and covert action operations - as
it now is - does not appear to be consistent with
existing statutes except by indirection. Similarly,
the importance and growth of both communications
intercept and satellite reconnaissance are reflected
poorly or not at all in statute and have been treated
so secretively that there is a substantial question
that these organizations and functions are appro-
priately conducted except under a very broad in-
terpretation of the executive branch's authorities
and a very narrow construction of the Congress'
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authorities to legislate and to control the
pursestrings.
(2) Other Authorities: There appears to be ample au-
thority derivative from the constitutional duties
of the President and the statutory responsibilities
of the DCI, the Secretary of Defense, other depart-
ment heads, and the Services to provide for a
reasonable basis for the current organizational
and functional assignments. Most of the directives
carrying out these duties and responsibilities are,
however, classified; as a result, no compelling
and searching legal test has been conducted that
could provide a high confidence answer.
Clearly, the Congress - both by specific legisla-
tion and. through the annual appropriations process
has recognized at least the major outlines of cur-
rent Intelligence Community organizations and
functions. NSA, DIA, FBI, the Service Cryptologic
Agencies, and other military intelligence entities
have been recognized - sometimes in statute, some-
times by specific or general appropriations action
and by other indications of congressional recogni-
tion (reports, investigations, testimony, etc.).
Only the NRO is devoid of any specific congres-
sional recognition.
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The Congress as a whole, however, has taken very
little explicit recognition of some of these activ-
ities, such that a reasonable argument can be made
that the specific organizations with their fuxic-
tions, their funding, and their integration in the
Intelligence Community has not been recognized by
Congress in any identifiable fashion. While certainly
some key members of Congress were familiar with these
aspects of intelligence activities, no continuing
and explicit recognition is provided by an objective
reading of congressional activities.
(3) Limitations: With the exception of specific limi-
tations on CIA's internal security role contained
in the National Security Act, there are no statutory
restrictions or limitations specifically applicable
to the intelligence organizations and their func-
tions. This largely is the result of the absence
of specific legislation covering these organiza-
tions and their functions. While the intelligence
agencies and their activities are, of course, subject
to the provisions of other statutes, there appears
to have been a concerted executive branch and
congressional effort to avoid the enactment of laws
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specifically applicable to intelligence, except
to the extent that such laws would provide extra-
ordinary authorities exempting them from provi-
sions applicable to other agencies regarding the
use of funds, reporting requirements, and other
administrative conditions.
Thus, many of the extant statutes - the CIA Act
of 1949, the Classification Act, the CIA Retire-
ment Act, and the previously mentioned acts applicable
to NSA, for example - provide for specific exemptions
from otherwise standard administrative procedures.
By interpretation and extension, these exemptions
now serve to cover a wide variet?r of intelligence
practices ranging from employment to operations.
Perhaps,'the most notable examples of these inter-
pretative extensions are the subsequent GAO cur-
tailment of audits of even CIA unvouchered funds
and the informal agreements covering appropriation,
expenditure, and audit of NRO funds. Thus, the
limitations and restrictions placed on intelligence
activities by other statutes tend to be undermined
by the exemptions granted in some statutes.
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Non-statutory limitations and restrictions are
almost nonexistent except in the form of internal
agency guidelines. The NSC intelligence directives,
executive orders, and other directives rarely
address limitations and restrictions specifically
applicable to intelligence.organizations and
functions. As in the case of statutes, most pro-
vide for specific exemptions rather than enforcing
specific limitations on these activities. One
basic Executive Order (E.O. 11652) covering clas-
sification, for example, provides for a virtual
blanket exemption for intelligence information
from the general provisions of that order and for
declassification. Whether merited or not, it
serves as an exampla of the general exemptions
provided the intelligence agencies by current
directives.
III. Options for Dealing with Intelligence Charters and
Limitations
The options available for dealing with the absence of
statutory charters for intelligence organizations and functions
and of limitations on their activities are heavily dependent
on political and policy considerations as opposed to purely
legal considerations. They are difficult and complex issues
that require in-depth exploration.
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A. Options for Charters/Functions
B.
2. Specific statutes covering more sensitive aspects -
electronic intercept, domestic activities, covert
action, etc.
3. Executive order(s), rather than statutes, providing
for limitations as above.
4. Repealing some or all of existing statutory and/or
administrative exemptions.
1. Statute providing basic outline of intelligence
agencies' organization, functions, and activities.
2. Revised statute for CIA with or without specific
statutes for, at least, NSA and NRO.
3. Specific, detailed statutes for all major elements
CIA, NSA, NRO, DIA, SCAs, FBI, and some Service
entities.
4. Generic statute for basic functions and providing
broad authority to President (or DCI or Secretary
of Defense) to allocate functions subject to pro-
cedural approval.-
5. Executive order(s), rather than statutes, covering
any of the above alternatives.
6. Status quo.
Options for Limitations
l.. Generic statute providing for broad limitations
on foreign intelligence activities.
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