31 JANUARY 1978 MEETING WITH SSCI STAFF RE CENTRAL INTELLIGENCE AGENCY TITLE, INTELLIGENCE CHARTER LEGISLATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86-00101R000100070030-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 14, 2016
• Document Release Date: November 26, 2002
• Sequence Number: 30
• Publication Date: February 3, 1978
• Content Type: MFR

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OLC 78-0399/6
3 February 1978
SU&1~CT: 31 January 1978 14leeting with SSCI Staff Re "Central Tntel_ligence
Agency" Title, Intelligence Charter Legislation
1. Orz 31 January 1978 members of OLC and. the ~u~clersigned) STAT
and OGC, met with Pat Norton, o t e SCI staff, to discuss
issues re a ing ~-o t e SSCI's latest draft of the "Central Intelligezic:e
Agency" title.
2. CIA representatives raised specific issues in the title with a
view to underscoring the problems posed thereby to the Agency.
3. CI:A representatives were limited to one hour wit}zin which they
had to raise numerous issues reflected in comments received from
various Agency operational, elements. Since time ,aas of the essence,
CIA representatives were Luzable to raise every issue, concentrating
on thaw considered to be the major issues. Attached :is a paper indicating
the .issues raised and discussed at subject meeting as we11 as the position
taken by bSr. Norton on each one.
4. In passing, hir. Norton mentioned that the "CIA"' title would be
renumbered from Title IV to Title III.
5, an a totally unrelated matter, Dlr. Norton indicated that he
expected the SSCI would be greatly pressured in FOIA germs as a result
of CIA's inadvertent release last week of a document containing }~_ighl.y
classified information re an Israeli state secret, since relatecl inforznat:i.on
in the custody of the SSCI naw arguably would. be considczred =in t}ae public
domain.
STAT
zce o Legislative; Counsel_
Distribution:
1 - AD-l~f, NFAC 1 - IC Staff 1. r. ?LC Subject
1 -NFAC l - DDO/PCS~ 1 - OLC Ch.rono
2 - OGC 1 - Compt u
-DDA 1-IG
1-DDS~,T 1-
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STAT
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ISSUED RAISED RE "CIA" TITLE AT 31 JANUARY 1978 1VIEETING
1. ?402(2), p. 2 -- CIA representatives noted that there is no provision
made in this suTsection to authorize the CIA to perform "special. activities. "
i~-Ir. Norton agreed to delete the term "foreign" in front. of "i.ntelligence"
in line 2 of this subsection and to drop the phrase "counterintelligence,
and counterterrorism" in lines 2 and 3 of the same subsection.
'.C'his subsection then will read in pertinent part: "(2) to authorize
the CIA. to perform those intelligence activities which are necessary.. ~ "
2m ?404, pp. 4-5 -CIA representatives indicated that this enti.rc _
section Ys unnecessary in view of ? 10$, "Authorities and Duties of the
Director, " SSCI draft Title I, which covers substantially th.e same matters.
C:LA. also made the point that ?404 (b) is confusing in twa regards:
(a) the subsection nowhere explicitly states that the DNI heads
the CIA. Instead, as written and in particular with its reference to
?111 (Title I), the section in Title I entitled "Authority o:f the president
to Transfer Certain Duties and Authority of the Director of 1`Tational
Intelligence" to urhich CIA has objected on numerous occasions, it appears
that th.e D1~'I and the DCI roles can be split. Mr. l~'orton made it
clear that this is in fact the intent of the subsection and that it reflects
same degree of congressional concern that the DNI and D/C1A be
split. He also indicated that instead of tackling the ticklish issue
head on, the staff decided to throtiv the ball into the president's court
by including ? 111 in Title I. It is to be noted that in previous discussions
on the same issue Elliot iLIaxwell has emphasized that ? 11.1 of Title I
is a "political compromise, "
(b) the second point discussed under this subsection dealt. with
the matter of it not being at all clear that the DCI may exercise an
inherent delegable power to, for instance, delegate his duties to the
DDNI ar any ADNI while he, the DNI, i.s ottt of Washington or the
country. This is nowhere clearly stated in ?404 of the CIA title and
is even more confused due to the inclusion in Title I of ?11.1.?
Mr, Norton said that he understood our point and would look at
the matter again in view of our concerns.
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3, j404(e), p. 5 -termination authority - as written this subsection
limits t i~ e-Dx.re~`ctor~s termination authority to "nat:i.onal security" situations.
This is the same language used in the 18 January 1978 draft of Title I,
?108(m). CIA made the same argument as previously raised with regard
to this issue (ref: OLC 78-0355, 19 January 1978 and OLC 78-0199,
30 January. 1978) and suggested that after the phrase "national security"
in line 5 of ?404(e) the phrase "or of the efficiency of the Agency" be
added.
While Mr. 1`7orton did not accept this language, he said that he might
be able to satisfy our concerns in subsection (6) of ?406, top of p. 10.
Mr. Norton indicated that he would change ?406(x)(6) to read in pertinent
part as follows :
"(6) appoint and separate such personnel as it deems advisable,
without regard to tie prov lions of Title 5, United Sates Cade,
governing appointments to and separations from the competitive
services. " (emphasis adde
CIA agreed that this on its face address to satisfy our concerns.
Mr, Norton then indicated, per our admonition, that a new subsection {h)
would be added at p. 12 stating in effect that anyone terminated under
1406(x){6) by the Agency or any employ?ee leaving the Agency for whatever
reasons would be included on the lists of the competitive service a,t
an equivalent level for purposes of seeking other Federal employment.
CIA submitted the follotivng language to 1I r. Norton for his consideration:
"[CIA.) Employees may move to positions in the competitive
service in the same manner as if they were transferring between
two positions in the competitive service, provided they have
served continuously for at least one year immediately precluding
the movement. Employees must not have a break in service o:f
one work day for the purpose of appointment to a position in the
competitive servi.ce.'
4. ?406(x)(6), p. 10 -Executive Schedule positions -CIA suggested
that it wou e mare appropriate from a drafting viewpoint to bring
in the Executive Schedule positions under ?406(x)(6), noting that ?406(x)(6)
as drafted picks up the authority to appoint up to GS-18. Mr. Norton
seemed to accept our comments on this issue. The effect of this then
will be to have ?409(c)(2), p. 17 read as follows:
"Executive Schedule or equivalent positions within the Agency
i.n addition to those of the Director, the General Counsel and
Inspector General other than those transferred to the Agency
under this Act shall be as authorized by law."
~:,_;. .
..,. ..'
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 The x~v~~~~~~~~~~.~~~~~Yi~tli~4~1D1~~-0~~~~~~~~on p. 10
tivith appropriate conforming changes being made. ?409(c)(1) on p. 17
will be dropped and ?40J(c)(3) tivill be renumbered to ?40cJ(c},
In order to ensure that the Executive Schedule positions presently
being occupied within the Agency continue to exist, ?420(a) is to be
changed by inserting after the word "All" and before the word "personnel"
in line 1 of the subsection the phrase "positions established in and all... "
5. ?405(b)(1), p. 6 -CIA suggested deleting the term "voluntarily"
frazn the t. it me o t is subsection as redundant. Mr. Norton -said
he would. think about it but did state that there would be voices raised
against this since it was included to cover coercive techniques.
7. ?405(f), p. 7 -CIA objected to the phrase "utilizing human
sources~In .Fine ~J of this subsection as being too narrow and stated
that the subsection should read to provide the Agency coordination
authority for all clandestine collection of foreign intelligence outside
the 17. S. 1VIr. Norton indicated that a new paragraph would be included
in ?405 to address this matter. IIowever, as Mr. Norton read what
is to be the new paragraph it uras noted that the same limiting language,
e. g. , "'utilizing human sources" remained. Mr. Norton indicated that
the staff was under pressur. e from other agencies to include the limitation.
8. ?405(g}(3}, p. 7 -CIA sug~ested that the phrase "and coordinate"
should e inserte after the term 'conduct, " dropping the term "such. "
Mr. Norton said he would -raise the issue but indicated that State wanted
some role in this coordination. CIA stated that State last on this issue
in ~'xecutive Order 1.2036 and said that State should not therefore be
raising it again in the context of charters.
9. ?405(8)(4}, p. ? -CIA noted the use of the phrase "Office of the
Directo~n. t~i.e second line of this subsection. Mr. Norton indicated
that it is Elliot Maxwell's intention to create this entit;y via. definition
in Title I,
10. ?405(h)(2), pp. 7-8 -CIA noted that as to the DNI the substance
of this su'Fi.se tc lon~is a rI eaTy covered in ? 108(c) of SSCI draft Title I
a.nd suggested that a~; to the Attorney General his role under
?405(h)(2) could be covered in ?124(f) o:f Title I.
11. ?405, pp. 6-8 -CIA. noted that ?405 as written makes no reference
to the Agee cyrs~~ autfi~~~rity to protect the activity of the installations f
activities/information/personnel such as is stip~zlated in ? 1-811 of
~;xecutive Order 12036. Mr. l~~orton indicated that this would be picked
up in 'T'itle IL
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12. ?406, pp. 9-12 -- at the outset of mtr discussion of this section,
CI_~ indica~ecl that there teas na provision therein for? "F~'irear?ms Carrying
Autnarity. Z~Ir. Norton stated that the next draft of the CIA title will.
have newly included a "Firearms Authority, " C"IA gave -ta N1r. Norton
the "I"'firearms Authority" language that. it recently proposed and
submitted as separate legislation. CIA underscored the fact that Justice
had given its endorsement to our language with only one substantive change,
the gist of which. tivas communicated to R'Ir. Norton,.
13. ?406(a)(5), p< 9 -CIA pointed out to Mr. Norton that language
in lines and 6 o t is subsection has the Director certifying to himself.
~Ir. _+~'artan agreed to drop the phrase "certifies to the Director of
1\atianal Intelligence that a" and insert "expressly tivaives. "
14. ?406(x){9}, p. 10 -- il~Tr. Norton indicated that. the entire sentence
begZnning wxt .tree wor s "The Agency... "and ending ~,vith ". or cultural
affairs" will be dropped from the CLA. title and newly included under
Title I.
ld< ?406(d)(2), p. 11 - in line 11 of this subsection, ]1llr. Norton
agreed tca insert t e fo~lo~s~ing phrase after the phrase ".., in urhatever
amount, "and before the ..?ord "shall": "a?ter all. obligations of the
proprietary have been rnet... "
16. ?406(g), p. 12 - nlr. Norton agreed to cansi.der irxcluding in this
stt'osection t en prase-"Agency budget" so as to preclude any provision
of la:v from being construed to require the Director to disclose such..
1Z. ?408(b), p. 15 -CIA suggested r.e~.x, language for lines 1--~i
of this suc section. to read as fallo~vs:
"In any case in which the Director determines such action
to lae necessary i.n the interest of national security, the
expend%tures of funds appropriated or transferred to tyre .l~.gency
shall be accounted for solely an the certificate of the Di:recto.r
and. every such certificate shall. be deerneei a. sufficicnf, voucher
for the amount certified therein, taut such expenditures may only
be for activities authorized by la~.v. "
1~~Ir. Nartan accepted the language but indicated that since the language
already included in the draft par-rats prior statutes and since the time
frame in which they are ape rating is so short, they probably would not
change it.
1$. ?409, pp. 16-17 -CIA indicated that this section in its entirety
is duplicative of ? I d e of Title I.
19. ?409(a), p. 16 -CIA asked if them i~~ere mare General Counsel
nositians? in the Governrr~ent that are subject to "the advice anal consent
of the Senate. " ~~Ir. Norton stated that t'nore tivere indeed anti added
that he ~va.s personally opposed to such,
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20. ?414(x), p. 21: CIA indicated that it would like to limit the
element o~ the cr mi e involved to the mere fact of "unauthorized release"
and therefore tivould like to have the phrase " .. in a manner which
results in injury to or seriously jeopardizes the safety of such officer
or employee... " 14Ir. Norton did not agree to this. CIA in the alternative
then asked to have the phrase ".. , or usefulness to the Agency... "
inserted after the word "safety" and before the word "of" in line 6 of
the subsectian. NIr, Norton did not agree to this. Mr. Norton did
agree to delete the tit,-ord "seriously" in line 6 of the subsection,
21. ?417(a)(1), n. 23: CIA supplied Mr. Norton with two variations
on the definition oft e term "employee":
a. employee means an employee in or. under an agency and
more specifically defined by regulations prescribed by the Director.
b. delete the phrase "specifically indicated" in line 3 of
?417(a)(1} and insert the phrase "designated as an employee by
the Director or by a properly designated official of the Agency. "
In a subsequent phone conversation, Keith Raffel, of the SSCI,
indicated that they would have no problem with accepting the
definition of "employee" at (a) above, which tracks that
in 5 L. S, C. ? 5921(3).
22. ?-=17(b)(1)(A), (b)(1)(B) and ?4I7(b)(2) -the phrase "in accordance
tivith" appearing in eac o t ese su sections is to be replaced by the
phrase "comparable ti;rith and as provided by. "
23. ?417(d)(1), p. 25 -CIA stressed that the Agency needs authority
to pa.y bene it -for special quarters, cost-of-living, travel and represen-
tation expenses and the DNI should have the leeway to make these
determinations when special circumstances exist.
24. ?-117(4)(1} and (d)(1), p. 25 -CIA stressed the need for provision
to be ma e un er one o t~ese su sections to explicitly grant to the
Agency the authority to sell real property overseas and to buy new
real property with the proceeds therefrom; NIr. Norton agreed to take
it into consideration,
25. ?418, p. 26 -CIA questioned the necessity of inclusion of this
section stressing tFi~at it can only serve to open up the CIARDS issue
needlessly. CIA stated that it would be sufficient to reiterate the
Director's authority to continue to designate persons in CIARDS per
78 stat 1043. No agreement was reached on this issue. Mr. Norton
did agree to drop the term. "highly" in line 9 of the section.
26. ?420(b), p. 27 - It was agreed to insert the phrase "or any
other proper y esignated official" or urords to that effect after the
term 'Director" and before the phrase "by any court... " in line 7
of this subsection.
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