LETTER TO MR. ROBERT E. CARLSTROM FROM (SANITIZED).

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81M00980R000800030030-8
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 3
• Document Creation Date: December 20, 2016
• Document Release Date: November 16, 2006
• Sequence Number: 30
• Publication Date: April 21, 1978
• Content Type: LETTER

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THE DIRECTOR OF CENTRAL INTELLIGENCE
Office of Legislative Counsel
21 April 1,978
Mr. Robert E. Carlstrom
Legislative Reference Division
Office of Management and Budget
Washington, D.C. 20503
Dear Bob:
I would like to provide you with additional background regarding our
interest in S. 1437, the "Criminal Code Reform Act of ].978,11 to follow uj.)
our telephone conversation on 19 April 1978.
As you are aware, we have been in contact periodically with the
Department of Justice concerning S. 1437 since our initial views letter
on the bill was sent to the Office of Management and Budget on 2( May 19',
Most recently, on 12 April 1978, we met to discuss these concerns with
the staff of the House Permanent Select Committee on Intelligence (HI'SCI),
and with Mr. Ronald Gainer, Deputy Assistant Attorney General for the
Office for Improvements in the Administration of Justice. During thit
meeting, we explained the nature of our concern with this legislation;
namely, the legislation's failure to provide explicitly, in some manner,
for a "defense of public authority," and the resulting uncertainty and
potential problems that might develop if and when intelligence officers
carry out lawfully authorized activities that are at the same time or.
their face violative of provisions in this legislation. It was stressed
that, although S. 1437 contains, in section 501, reference to the general
common law public authority defense, and although the CIA has in the past
been advised by the Department of Justice that certain existing criminal
statutes do not extend to official activities otherwise authorized pursua c
to law, the broad reach of this legislation and the current environment in
which intelligence officers must operate, requiring a much greater degree
of attention than previously to engaging only in those activities that ar(:
clearly if not explicitly authorized, makes us uncomfortable with this
legislation, which sets forth numerous explicit proscribed activities
without corresponding recognition of the fact that intelligence activities
carried out pursuant to lawful authority are not within the scope of these
provisions. (We are aware that the specific defenses, including the public
authority defense, previously incorporated in S. 1, the predecessor legisla
tion, were dropped from S. 1437 in the interest of compromise.)
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In.our view, perhaps the key question with which Congress must come
to grips is what activities are or should intelligence agencies be
authorized to conduct (particularly those related to civil rights).
The intelligence charter legislation, now before both intelligence
oversight committees, in large part will address the basic question
of what activities Congress intends intelligence agencies and officers
to be able to conduct. For the following reasons, however, we believe
this would not provide the best forum from which to address the matter
of the inter-relationship between proper intelligence activities and
Federal criminal statutes applicable to persons generally. In our view,
this basic issue should be considered in the context of congressional.
consideration of S. 1437.
--There necessarily would not be a complete overlap
between the authorizing provisions in the charter legislation
and the enumerated proscribed activities in. the criminal
code revision.
--It would be extremely difficult, if not impossible,
and undesirable at any rate, to attempt to specifically identify
each and every activity which intelligence officers and agencies
should be authorized to perform, and, conversely, each and
every civil or criminal proscriptive statute that should be
made inapplicable to intelligence officers and agencies.
--There may very well be an extended period of time
before which the intelligence charter legislation will be
enacted.
--The current environment in which intelligence officers
must operate, with increasing oversight and required deference
to regulations and statutes, is creating great uncertainty and
hesitancy to engage in intelligence or intelligence-related
activities absent very clear and unambiguous authority to
carry out such activities. Increasingly, individual officers
are concerned that they run the risk of being liable for civil
or criminal sanctions for conducting an intelligence activity
that, although fully and appropriately authorized at the time,
later is determined to be without sufficiently explicit statutory
authority.
Neither the fact that future prosecutions would be unlikely, nor that
authorized intelligence activities subsequently would likely be found
not to fall within the intent of a criminal statute, addresses these
practical problems.
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Those with whom we have spoken have indicated informally that they
are sympathetic to our concerns and agree that it would be appropriate
to raise the issue with the House Judiciary Committee now considering
the legislation. We believe these important issues should be raised
in as open a manner as possible with both the Judiciary and Intelligence
Committees. Given the key role being played by Senator Edward Kennedy
in this legislation, and in light of the sponsors' clear intent to move
the legislation through the Congress as quickly as possible, we are also
contemplating checking with Senator Kennedy to obtain his ideas on this
matter. In our view, it would be beneficial to raise this matter even
if all that might result at this time would be a commitment to consider
the matter apart from S. 1437 in order not to hold up that bill..
We appreciate your interest in this matter. As we discussed, we
will continue to work closely with the Department of Justice, and
particularly Mr. Ronald Gainer, regarding our concerns with and activities
on this matter. Please let me know if there are additional considerations
you believe relevant. As we agreed also in our telephone conversation,
we will submit a formal report in satisfaction of your request for views
on S. 1437 after additional discussions.
Sincerely,
Assistant egms a ive ouuse
Distribution:
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1 - 0GC
1 - OLC Subject
1 - OLC Chrono
OLC:RLB:sm (21 Apr 78)
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