TITLE IV OF H.R. 12240, THE 'INTELLIGENCE AND INTELLIGENCE-RELATED PROGRAM AUTHORIZATION ACT FOR FY 79'

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81M00980R000600310030-9
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 19, 2016
• Sequence Number: 30
• Content Type: MEMORANDUM FOR THE RECORD

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OLC 78-2134/2
18 August 1978
CLI
Llt~~y~~~ ~ U
SUBJECT: Title IV of H.R. 12240, the "Intelligence and
Intelligence-Related Program Authorization Act for FY 79"
1. On 25 July 1978 Senate and House conferees met to consider
H.R. 12240, the intelligence authorization bill.
2. H.R. 12240 caused.,some concern due to the presence of Title IV,
"Admission of Certain Excludable Aliens" in the bill. Title IV focuses
on the issue of the admission of aliens into the U.S. who are ineligible
and excludable under paragraphs 212(a)(27), (28) or (29) of the
Immigration and Nationality Act (8 U.S.C. 1182(a)). As proposed
Title IV of the bill would require the Attorney General to notify the
Intelligence Oversight and Judiciary Committees of the House and Senate
whenever such an alien is, in the opinion of the Attorney General,
excludable but nevertheless admitted. The Senate version of the
bill, S. 2939, contained no comparable provision.
3. Title IV appears to have been the result of testimony by FBI
officials who had complained that notwithstanding their professional
recommendations to the contrary aliens considered by FBI to be excludable
were being granted visas and entry into the U.S. FBI's complaint is
directly linked to what is known as the 'McGovern Amendment," an amend-
ment to the Foreign Relations Authorization Act for fiscal year 1978
(22 U.S.C. 2691), subsequently adopted and currently law, which eliminated
the Secretary of State's discretion with regard to recommending that an
alien, otherwise excludable under 8 U.S.C. 1182(28)**, should be admitted
and mandated the Secretary of State to act automatically in such cases
making an immediate waiver recommendation to the Attorney General so that
a visa might be issued.
**Paragraph 1182(a)(28) of Title 8 U.S,Ce treats of aliens ineligible
to receive visas because of political views or affiliations.
AORI/CDF
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4. In reporting on Title IV, the House Permanent Select Committee
on Intelligence commented on the counterintelligence priorities of the nation
as they relate to the visa.process. The Committee went on'to say the pro-
cedure contained in Title IV of H.R. 12240 might bring amore balanced
perspective to the decision-making process regarding the admission of.
aliens into the U.S.
5. Shortly after Title IV surfaced in the House bill, it became
apparent through the process of Executive Branch coordination that a
rift between the State and Justice Departments was developing with
regard to the underlying legal issues involved. It was subsequently
learned that the issues involved are both long standing and highly charged.
State and Justice were involved in an exchange of legal memoranda in an
attempt to settle the legal issues which focused-on the interpretation of
relevant provisions in the Immigration and Nationality Act, supra, dealing
with visa issuance and entry into the U.S. At a 22 June OMB-chaired
meeting attended by representatives of OLC, State, Justice, FBI and
IC Staff, it was decided that the DCI, exercising his Community role and
underscoring the counterintelligence equities involved, should send a
letter to Senator Bayh, Chairman SSCI, in opposition to Title IV.
6. On 10 July the DCI wrote to Senator Bayh expressing his apprecia-
tion for and underscoring the importance of HPSCI's efforts in Title IV to
find a proper balance between an 'open policy with. regard to the admission
of aliens and fundamental national security interests but recommending that,
in view of current consideration of the issues by the Special Coordination
Committee for Counterintelligence (SCC/CI) under the NSC pursuant to the
mandate contained in Section 1-304 of Executive Order 12036, enactment of
Title IV and its statutory reporting requirement be reconsidered with a
view'to allowing the Executive Branch consultation process to complete its
work. Justice and State concurred in the letter.
7. House-Senate conference on the bill was held on 25 July 1978. On
2 August, Representative Boland, Chairman, HPSCI, submitted the conference
report to the House (attached):.. The conferees retained Title IV essentially
as it was in H.R. 12240 before conference except that notification to the
appropriate House and Senate committees of each case of an excludable
alien being admitted was changed to a single report to be filed no later
than 30 October 1979 regarding those cases which developed during the
1 October 1978-30 September 1979 period.
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8. Conference Report language stressed the following matters with
regard to Title IV:
--The conferees noted that the NSC is looking into the
problems involved and underscored that, given the importance
of foreign counterintelligence, it is their hope that "this
legislation may stress the need to bring about a balanced
perspective in-the inter-agency decision-making process
regarding the FBI's recommendations for visa denials."
--The conferees also expressed the notion that "the
counterintelligence priorities of the nation may be askew,"
the operative effect of which may be to place a heavy burden
on the FBI's foreign counterintelligence and foreign counter-
terrorism endeavors.
--The conferees limited the reporting requirement called for
in Title IV as follows:
a. the report need not specifically identify individual
names as such specificity is unnecessary and may be tantamount
in some cases to disclosing sensitive information about intel-
ligence sources and methods;
b. the report itself need only describe the circumstances
of the case in general terms; and
c. the FBI need only notify the Attorney General of
those cases in which the alien, admitted over FBI advice
that such alien is excludable, "would be a legitimate
target of FBI foreign counterintelligence or foreign
counterterrorism intelligence concern."
9. While the Administration urged deletion of Title IV, the retention
of the title--as amended at conference--causes no major difficulties since it
merely establishes a one-time reporting requirement. Conference language
provides sufficient protection for any intelligence sources and methods
that may fall within the scope of the report, and limits the scope of the
report by directing that only those cases where an alien would be a
"legitimate target" of foreign counterintelligence or foreign counter-
terrorism intelligence need be reported.
10. Of related interest are the developments of late in the Senate
with regard to S. 3075, the "International Security Assistance Act'of 1978."
On 26 July 1978, Senator Howard Baker (R., Tenn.) introduced an amendment
to S. 3075 on the Senate floor which in effect would if enacted repeal
the "McGovern Amendment." Citing the lack of good faith on the part of
the Soviet Union in living up to the Helsinki Accords (Final Act of the
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Conference on Security and Cooperation in Europe, signed at Helsinki on
1 August 1975) and the recent Shcharansky and Ginzburg trials in Moscow,
Senator Jackson argued in support of the Baker amendment to S. 3075:
"As matters now stand, the Secretary [of State] is required
to recommend that.visas be granted, regardless of the
circumstances of the visa-request, the state of relations
with the country involved, or other factors that any
sensible and flexible policy would surely take into
account. Nothing in the Helsinki Final. Act dictates the
internal deliberative procedures by which we decide
whether or not to grant visas to enter the United
States. In any event the blatant record of Soviet
violations of the Helsinki Final Act does not argue
for a totally undescriminating policy on our part."
114 Cong. Rec. S 11816 (daily ed - July 26, 1978).
The Senate adopted Senator Baker's amendment on 26 July 1978.* However,
on 15 August 1978 the Baker amendment was stricken in conference.
11. On 17 August 1978 the conference report on the bill passed STAT
the House;. it will next:be referred to the Senate and brought up on
the_ floor of : that House for acceptance.
ASSIstant Legislative Counsel
Distribution:
1 - DDO
1 - DDA
1 - IC Staff
1 - OGC
1 - Compt
1 - OLC Subject
1 - OLC Chrono
OLC: RJWV: sm (18 Aug 78)
*114 Cong. Rec. S 11827 (daily ed. - July 26, 1978)
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