(UNTITLED)

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00988R000300010086-5
• Release Decision: RIFPUB
• Original Classification: U
• Document Page Count: 11
• Document Creation Date: December 15, 2016
• Document Release Date: November 7, 2003
• Sequence Number: 86
• Content Type: REGULATION

7 A effoveccf eals 004/0 /11 CJ,~-RD
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1. ~ he ier I~ s you ave one unori~z rrorisnl
activities" in addition to collecting and analyzing "counterterrorism
intelligence.
a. term ""counterterrorism activities" appears in "Statement
of Purposes, ? p. 2, Title IV, ? ''_02(4).
b. "counterterrorism activity" defined in Title I, 5104(7)
(A), (B) and (C).
c. ?413(e)(1) -- CIA given duty to "conduct .., counter-
terrorism activities outside the U. S.
rorism
d. ?413(e)(2) - CIA given duty to ""conduct counterterrorism
activities within the 1. S. " with the caveat that they be "... integrally
related to counterintelligence or counterterrorism activities of
the Agency outside the U. S. "
e, ?413(f) - CIA given coordination role for all counter-
terrorism activities conducted outside the U. S. by any other
entity of the Intelligence Community.
2. ?411(a): Whether there is a substantive difference between the
use of the phrase "... under the direction and control of the National
Security Council" appearing in the second sentence of this subsection
and the way the National Security Act of 1947 addresses the same matter.
Note - ? 102(a) of the National Security Act of 1947, as amended, reads
in pertinent part: "There is established under the National Security
Council a CIA..." (emphasis added).
3. Whether the term "proprietary, "" as defined in this title, is
sufficient to cover partnerships, corporations and other businesses
whose relationship to CIA is publicly known.
Note: a. The definition as written does not take into account situations
such as the Air America situation, where the relationship between the
CIA and Air America has not been officially acknowledged but is
unofficially commonly known.
b. Suggest that the definition be revised to read in pertinent part:
"...but whose relationship with the CIA has not been publicly acknowledged
by the U. S. Government."
4. Whether the DNI and the DCI are one and the same persons [?412(x)].
Note: This subsection is confusing in that it nowhere explicitly or clearly
states that the DNI heads the CIA. Instead, as written and in particular
with its reference to ? 117 (Title I) entitled "Authority of the President
to Transfer Certain Duties and Authorities of the Director of -National
Intelligence" to which CIA has objected on numerous occasions, it
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appears that the DNI anct DCI roies can be split. The SSCI staff made
clear that this in fact is the intent of the subsection and that it reflects
some degree of congressional concern that the DNI and the D/ CIA.
(DCI) be split. The staff also indicated that instead of tackling the
ticklish issue head on, it was decided to throw the ball into the
President's court by including ? 117. The SSCT staff has emphasized
that ? 117 represents a "political compromise."
5. Whether the DCI may exercise inherent delegable powers
[j412(a)].
Note: This issue focuses on the lack of clarity as to whether the DCI
may exercise an inherent delegable power, for instance, to delegate his
duties to the DDNI or to any ADNI. This is nowhere clearly stated
in ?,,412 and is even more confused due to the reference in this section
to ?117.
6.. Whether the phrase "willing voluntarily" as used in ?413(b)(1) and
(2) is unnecessarily redundant and susceptible to being misconstrued
because of what appears to be an overemphasis through the use of an
unnecessarily "reinforced" phrase [?413(b)(1)].
Note: a. In previous discussions on this point with SSCI staff, CIA was
told that the reinforcing term "voluntarily" was included after "willing"
to cover and prevent situations wherein coercion or duress may be
employed which otherwise would not be reached if the term "willing"
alone were used.
b. Query: are there situations where coercion, threat or duress
may be necessary to elicit the foreign intelligence and without which
the collection effort would be thwarted? In this regard, note that the
coercion, threat or duress need not always be to physical safety.
c. ? 1-801 of E.O. 12036 might be substituted for all of subsection (b)
as more appropriate. E. O. 12036 does not differentiate between publicly
available/nonpublicly available foreign intelligence or collection within
or without U. S. boundaries. ?1-801 reads in pertinent part:
"1-801. Collect foreign intelligence, including information
not otherwise obtainable, and develop, conduct, or provide support
for technical and other programs which collect national [foreign]
intelligence.. 4 "
7, Whether the standard "... when integrally and exclusively related
to Agency activities outside the U. S. . . . " is an impractical/impossible
standard by -v which to measure clandestine collection of non-publicly
available foreign intelligence from foreign persons within the U. S.
[?413(b,)(2)1.
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Note: a. The particular concern here is with the adverbial modifiers
"integrally and exclusively. "
b. Query: how defined; how much of a nexus must be established;
and who decides that sufficient nexus with Agency activities outside
U. S. is present?
c. The standard in part is repeated in ?413(e)(2), line 3, "integrally
related to ... "
8. Whether the Congress should be treated in statute as coequal
recipient of the intelligence product along-with the Executive Branch.
[?413(c)].
9. Whether the language or construction used is proper statutory
language or style, e.g., ' The Agency shall act as the DNI's agent. . . rr
[?413(f)].
Note: If CIA's argument that DNI should be the same person as the D/CTA
is accepted, following language is suggested:
"The DNI, as head of the CIA, shall coordinate all...
"The Agency shall., under the direction and control of the
DNI, be responsible for the coordination of all collection outside
the U. S. of foreign intelligence, counterintelligence, and
counterterrorism activities by clandestine means including
collection utilizing human sources. "
10. Whether ?413(a)(2), lines 2-3, should be consistent with E. 0.
12036, which reads:
"?1-809. ' Conduct services of common concern for the
Intelligence Community as directed by the NSC;" (emphasis added)
Note: The preamble to the 1-8 series of subsections in Executive Order
12036 emphasizes the NSC direction. In that regard 51-8 reads in
pertinent part:
".. As authorized by the NSA of 1947, as amended, the CIA
Act of 1949, as amended, and other laws and directives, the CIA,
under the direction of the NSC, shall:... " (emphasis added).
11. Whether the Agency should be given the duty not only to "conduct
liaison with foreign governmental agencies" but also to coordinate all
such liaison conducted by other entities of the Intelligence Community
[?413(8)(3)].
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Note: a. Suggest that ?413(g)(3) be changed to read:
.. conduct liaison with foreign governmental
agencies in coordination with the Director of National
Intelligence and coordinate all such liaison conducted
by other entities of the Intelligence Community"
". .. conduct liaison with foreign governmental
agencies in coordination with the Director of National
Intelligence and, in accordance with the provisions of
the Act, carry out those responsibilities given the
Director of National Intelligence to coordinate all
such liaison"
b. CIA raised this issue with the SSCI staff, and the response was
that the State Department considered itself as having equity in this
liaison process and therefore wanted some role in it, i.e., that the
Agency should not itself be granted the coordination role. See also
in this regard ?114(j), Title I.
12. Whether the phrase "Office of the Director" should be defined
[?413(g)(5)].
Note: a. This is the first reference to "Office of the Director" in
Title IV. The "Office of the Director of National Intelligence" is
established under ?113(a) of Title I. See also in this regard the definition
of Intelligence Community [? 104'_(16), Title I] which lists the Office
of the Director as a separate entity within the Intelligence Community
[? 104(16)(A)].
b. The relationship between the Director, the Agency and the Office
of the DNI is unclear. See ? 113 of Title I in this regard where it is
stated that the DNI heads the Office of the Director with no mention
of its link to or relationship with the CIA.
c. Ambiguity surrounding role of the Office of the Director is reinforced
by the potential split of the DNI and the D/CIA.
13. Whether the CIA should be explicitly char ed with support of
the "Office of the Director of National Intelligence (ODNI) [5413(g)(5)]
and if so, whether the categories of support specifically listed In subsection
(g)(5) are sufficient to meet the needs of the ODNI.
Note: See paragraph 4 of this memorandum and ?412(a).
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14. Whether "[a]ll Agency activities within the United States involving
the collection of intelligence and all Agency counterintelligence and counter-
terrorism activities within the U. S. " should be required to be conducted
"in coordination with the Federal Bureau of Investigation and in accordance
with procedures agreed upon by the Attorney General andie Director of
National Intelligence" (emphasis added) ['?413(h)(i.)].
i\ ote: a. 413 (h) (J.) sets up a dual requirement of coordination with the
FBI and compliance with procedures agreed upon by the AG and DNI.
b. It is suggested that ? 1-801 of Executive Order 12036 dealing with
the same issue is drafted more precisely and substantively is preferable
to the dual requirement established by ?413(h)(1). ?1-801 of the Executive
Order reads in pertinent part:
"... The collection of information within the United
States shall be coordinated with the FBI as required
by procedures agreed upon by the Director. of Central
"
Intelligence and the Attorney General.
15. S,413(h)(2): Whether the annual review called for in this subsection
"of all Agency activities within the U. S. for the purpose of ensuring that
such activities do not violate any right protected byTtz~ e -Coris~ai:utiorz orY
-.a..rs n i the United S t a t e s , " e m p h a s i s a c ' I E d ? G . - unnecessarr y re-
dundant since, on t ie one hand, the Director is already charged with
reviewing intelligence activities "on a continuing basis" [5114(c:)], and
on the other hand, the Intelligence Oversight Board [?151] effectively
fulfills the same role.
16. Whether the following language contained in ?1-812 of Executive
Order 12036 should be included at end of ?413 as a new subsection
413(i):
"Conduct such administrative and technical support
activities within and outside the U.S. as are necessary
to perform the functions described in ?413 above,
including procurement and essential cover and
proprietary arrangements. "
17. Whether the phrase in lines 8-12 of 5421(a)(1), "... but only
when the Director certifies in writing that such limitation would unduly
impede the performance of a function authorized by this title. and
transmits such written certification to the appropriate committees of
Congress, " is administratively burdensome and unnecessary.
18. '"Whether provision also should be made for background investi-
gations to be conducted for the following categories of individuals not
currently covered under ?412(a)(6): employees; contractors; and
employees of contractors.
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n 11,;
Note: ?412(a)(6) makes provision for the Agency to "conduct background
investigations of applicants for employment with the Agency" (emphasis
added).
19. Whether the services listed ir5412(a)(8) are sufficient to cover
all generic categories of services perforaned~by the Agency "[1] carrying
out its functions under this [bill]"
Note: a. ?412(a)(3) as currently written authorizes the Agency to "perform
inspection, audit, public affairs, legal and legislative services. "
b. Query: What about budgetary and personnel services, for example?
20. Whether provision should be made to authorize the Agency to
pay "association and library dues. "
Note: a. Provision could be made for the Agency to pay "association
and library dues" by inserting words to that effect in ?412(x)(16) or
a new subsection (18) could be inserted.
b. ?8(a)(1) of the CIA. Act of. 1949, as amended (50 U. S. C. A. 403j(a)(1))
makes provision for the Agency to expend funds for payment of
"association and library dues,
21. Whether the Agency should have authority to dispose of property
and use the proceeds therefrom to purchase new property.
Note: a. There is no provision in the bill granting this authority.
b. It is suggested that a. new subsection ?421(a)(18) be drafted. Words
to the following effect are suggested:
"Dispose of property and use the proceeds therefrom to
purchase new property notwithstanding the provisions of
[cite relevant law] when the Director deems such action
necessary to the successful performance of the functions
of the Agency or to protect the security of Agency
activities.
d. ?421(d)(1) will have to be appropriately revised.
22. Whether the choice of the term "normal" in ?421(d)(1) is either
appropriate, given the true nature of the cover proprietary, or necessary
from a good drafting point of view.
23. Whether the "Agency budget" should be included in ?421(g)
in the list of items which cannot be disclosed via the mechanism of
construing any other provision of law to require such.
24. Whether the authority for employees to carry firearms as
described in 542'(i) is sufficiently broad to cover all Agency needs
in this arena.
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Note: a. Query: Does the term "courier protection purposes" encompass
"safeguarding confidential documents or materials, " those being tr. ans-
ported and those not in the process of being transported, and does the
'courier protecting purposes" term extend to information concerning
intelligence sources and methods?
b. While ?421(h) arguably provides authority for the security officers
policing installations and grounds of the Agency to carry firearms,
would it not be better to explicitly state this in ?421(i). Specific
language might take the form of:
"Agency personnel, designated by the DCI and qualified
for the use of firearms would be authorized to carry
firearms within the U. S. to protect facilities, properties,
monies and other valuable assets owned and utilized
by the Agency...
c. Query: Whether an attempt should be made to define "exigent
circumstances" as it appears in lines 5-6 of this subsection.
d. Query: Does the subsection extend to the "transportation
and utilization of firearms for authorized training"?
e. Keep in mind the Agency's firearms proposal submitted to
OMB, independent of the charter legislation.
25. Whether the language contained in ?421(j)(1) and (j)(2) sufficiently
meets Agency needs as provided for in current law.
26. Whether the procurement authority provided in ?422 of the bill
sufficiently covers all procurement authority currently provided under
??3 and 8 of the CIA Act of 1949, as amended.
27. Whether the reference to 5139 via the phrase in ?422(c) "... only
in accordance with section 139 of this Act... " would hamper certain
types of procurements.
Note: ? 139 of Title I, "Restrictions on Contracting" would allow con-
cealment of Agency involvement if a determination is made, pursuant
to procedures approved by the AG, that "such concealment is necessary
to maintain essential cover or proprietary arrangements for intelligence
purposes authorized by this .Act. "
28. ?423(2):
Note: a. The phrase in subsection (2), ". . . and under exigent circum-
stances, expert personnel ... " is new as of the 9 February bill.
b. The phrase "exigent circumstances" is undefined.
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29. Whether the term "request" used in line 5 of ?423(4) and line 5
of ?423(5) is appropriate in an authorization section.
Note: Subsections (4) and (5) provide no affirmative duty that the other
agencies mentioned therein support the Agency's needs. It would not seem
inappropriate to provide, instead of the present language, that when
the Agency makes the requisite finding, it shall notify the INS or the IRS,
as the case may be, and shall obtain, subject to approval by the Attorney
General, the waiver of of el rw se applicable rules and procedures or a
tax audit conducted so as to avoid public disclosure.
30. Whether the term "lawful" in line 3 of ?425(a) is necessary.
Note: The negative implication of this term is that the Agency is
involved in unlawful activities.
31. Whether the Agency should be authorized to expend sums for
activities of an extraordinary or emergency nature subject to DNI
advance approval [?425].
Note: a. In that regard the following language is submitted to be
inserted after the word "the" in line 32, deleting the phrase "lawful
functions of the Agency. " The first sentence of subsection (a) would then
read (inserted portion underlined):
"Notwithstanding any other provision of law, sums made
available to the Agency by appropriation or otherwise may
be expended for purposes necessary to carry out the. functions
authorized by this Act and for activities of an extraordinary
or emergency nature, not otherwise sut .oredy this Act,
w lien such expenditures are avorovec in acvance icy ti-he
Director of National Intelligence pursuant to to authority
in section 122(c) o this Act.
The additional language gives the Director necessary authority to expend
funds for activities of an extraordinary or emergency nature.
b. The 2 February 1978 SSCI Draft Title I contained in ?122(c)
language re expenditures for "activities of an extraordinary or emergency
nature. " That subsection in toto has been deleted. While ?122(b) of the
9 February 1978 Title I may arguably pick up the substance of the deleted
subsection (c), the phrase I'expenditures for activities of extraordinary
or emergency nature" nowhere specifically appears in the 9 February
1978 5 122. Similarly, subsection (b) of ?425, it might be argued,
captures the "expenditures for activities of an extraordinary or emergency
nature" category, but once again that terminology nowhere specifically
appears in ?425(b). If this in fact is the intent of these subsections, this
should be brought out in the hearings and in the report for the record, viz.
the legislative history, so as to record the intent of Congress to capture
in ?122(b) and ?425(b) the authority to expend for activities of an extraordinary
or emergency nature. CIA should, ho,,v,-ever, stress the need for specific
language to that effect.
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32. Whether the reporting requirement contained in the second
sentence of ?425(b) requires reporting by both the DNI and D/CIA
assumin; the potential split of the two directors may become law.
Note: It is suggested that the following language be adopted and
inserted in a separate subsection to replace the second sentence of
?425(b):
"All expenditures made under the authority of this
subsection shall be reported by the Director on a
quarterly basis to the Committees on Appropriations
of the Senate and the House of Representatives, and
to the Select Committee on Intelligence of the Senate. "
33. Whether the approval by OMB of "the proposed expenditure"
as well as the "withdrawal" of funds from the Reserve Fund may be
misconstrued to mean disclosure to O1VIB of the facts and circum-
stances of the proposed expenditure [?425(c)(l)(A)].
Note: If it is the intent of the drafters to cover by the phrase "the
proposed expenditure" the mere fact of expenditure, then the language
used is unclear.
34. Whether the phrase "facts and circumstances" in ?425(c)(1)(B)
requires more than just the reporting of the fact of withdrawal and the
fact of the proposed expenditure.
35. Whether the appointment of the General Counsel in ?426(a)
should be subject to the advice and consent of the Senate, thereby
potentially politicizing the position.
36. Whether the General Counsel should be responsible for and have
authority to "review all activities" not only of the CIA but also the
Office of the Director of National Intelligence, which is established
as a separate entity in ?113(a) of Title I [5426(a)(.1)].
Nate: The same comment applies to the responsibility and authority
of the Inspector General in ?426(b)(1) which should read, ". , .
investigate all activities of the Agency and the Office of the Director
of National Intelligence... " with corresponding appropriate changes
made in the remainder of the subsection.
37. Regarding ?431(a), which establishes penalties for improper
participation in the disposition of proprietaries, the reference to
139(a) in line 8 of the cited 18 U. S. C. ? 207(d) is incorrect; the
"waiver" referred to is described in ? 138(a) of Title I, not q139.
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38. Whether the list of items in lines 6 through 7 of the new
18 U. S. C. 716 cited under ?431(10(1) is sufficient to cover Agency
needs to prevent unlawful use of "the name 'Central Intelligence
Agency', the initials 'CIA', the seal of the Central Intelligence
Agency, or any colorable imitation of such name, initials or seal.. "
39. With regard to the new. 18 U. S. C. ?2392(a) entitled "Unauthorized
disclosure of identity of secret agents" in ?431(c)(1), which makes an
element of the crime the resultant injury to or jeopardizing of the
safety (or reasonable expectation thereof) of a CIA officer or employee,
whether the phrase "in a manner which results in injury to or jeopardizes
the safety of such officer or employee of the CIA, or could reasonably
have been expected to result in injury to or jeopardize the' safety of
such officer or employee of the CIA" should be amended so as to
require only the knowing communication, furnishing, or disclosure
of the ident ty of an undercover CIA officer or employee to complete
the offense.
-Note In the alternative the following language change (underlined) could
be proposed:
"... in a mariner which results in injury to or seriously
jeopardizes the safety or usefulness to the Agency of
such officer or employee, or cou cf reasonably-rave
been expected to result in injury or jeopardize the
safety or usefulness to the Agency of such officer or
employee, shall be fined.
. .
40. Whether the reference in line 1 of ?432(b) to "no police... .
powers" is fully consistent with ?421(h) which grants to the Director
the authority to "appoint and assign security officers to police the
installations and grounds of the Agency...'
Note: The legislative history of the Act should clarify this issue.
41. Whether the definition of the term "employee" is responsive
to Agency needs [?441(a)(1)].
Note: On previous occasions CIA stressed two alternative definitions:
a. "employee means an employee in or under an agency
and more specifically defined by regulations prescribed by the
Director" (this definition tracks 5 U. S. C. ?5921(3)), or
b. delete the phrase "specifically indicated" in line 3 of
this subsection and insert the phrase ' ... designated as an
employee by the Director or by a properly designated official
of the Agency. . . "
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42. Whether ?441(b)(1) and (b)(2) as written are sufficiently clear
with regard to the fact that CIA employees assigned within and without
the U. S. boundaries should receive allowances comparable with other
U. S. Government employees similarly situated.
Note: The following changes are suggested.
a. ?441(b)(1)(B) should read: "... allowances comparable to
those provided for in chapter 59 of title 5, United States Code. "
b. ?441(b)(2) should read:
"with respect to employees assigned to duty stations in any
foreign area, the Agency may provide allowances comparable
to those provided for in chapter 59 of title 5, United States
Code, allowances and other benefits as are provided
employees of the Foreign Service under title IX of the
Foreign Service Act of 1946 (22 U. S. C. ?1131 et se q.
)
and death gratuities as are provided employees e
Foreign Service under section 14 of the Act entitled
"An Act to provide certain basic authority for the
Department of State, approved August 1, 1956
(22 U. S. C. ?2679a.).
43. Whether the 60-day period required under ?441(c)(3) before
the expiration of which any executive order issued pursuant to
?441(c)(1) may not become effective is unnecessarily burdensome.
44.- Whether there is sufficient authority to cover the Agency's
need to pay special allowances including quarters, cost-of-living
representation allowances and travel expenses in situations where
special circumstances exist as determined by the Director,
t?441(d)(1)].
Note: For example, expenses in certain areas of the world where other
Government agencies do not have cost-of-living differentials or for
expenses incurred in those cases where CIA personnel cannot get into
Department of State special quarters.
45. Whether the inclusion of this section in all its detail
needlessly resurrects the CIARDS issue [,5442].
Note: Mere reference in the statute to the Dir. ector's statutory authority
to continue to designate persons in CIARDS per 78 Stat. 1043 would
suffice; the appropriate place would be in the section listing the
Director's authority.
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