JUSTICE DRAFT REPORT ON S. 2366 "INTELLIGENCE AUTHORIZATION ACT"

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90M00005R001500040008-9
• Release Decision: RIPPUB
• Original Classification: U
• Document Page Count: 5
• Document Creation Date: December 27, 2016
• Document Release Date: December 28, 2012
• Sequence Number: 8
• Publication Date: June 6, 1988
• Content Type: MEMO

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SPECIAL
LEGISLATIVE REFERRA?a MEMORANDUM
TO: Legislative Liaison officer-
Central Intelligence Agency
Department of Defense - Brick - 697-1305 (o6)
SUBJECT: Justice draft report on S. 2366, "Intelligence Authorization
Act."
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship
to the program of the President, in accordance with OMB Circular
A-19.
A response to this request for your views is needed no later than
MONDAY, aVITL ! 3, l055.
Questions should be referred to Annette Rooney/sue Thau
(395-7300) the legislative analyst in this office.
RONALD IC. PETE.R.OON FOR
Assistant Director for
Legislative Reference
ocs A. D. Culvehouso, Jr.
A. Rat?l
G. Jones
A. Donahue
D. Gassamaf
ViAAe, pl~as+e
y +o CIA
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u.i. Alpsrunset M Jufmc
Owes of Leihltdve Affairs
isonorable dam Nunn
Chairman
committee on Armed services
U.C. Senate
. wash=r:gton, P.C, Z0010?i050
Dear Kr. cbeiraans
'This letter presents the views of the Department of Justice
with respect to the constitutional issues raised by S. 2366, the
'intslligtnc? Authorisation Act, risvai Year 1049. We are con-
cerned that the bill as currently drafted posts constitutional
problems.
The proposed legislation contains extensive reporting
requirements with respect to the inspector General of the Central
Intelligence Agency. doetion 006 would require the Director of
Central Intelligence to report to mpecifLed committees of
Congress "any . . . decision made by the Director . . . which
vould subatantiall.y affect the ability of the Inspector General
to carry out his duties and responsibilities! N and surther to
report the position of the inspector General with respect to
such decision . . . ." The Director must submit semiannual
reports to Congress suuamarising among other things, 'the status
of corrective actions taken during the reppoorting period in
response to Inspector General recommendations.' The Director
must also report on any decision 'to prohibit the inspector
General from initiating, carrying out, or completing any audit.
inspection, or investigation within the Central Intelligence
Agency . . . .G.
These requirements, in particular the disclosure of
Inn ector General recommendations and of p*tentially o sing
vidva within the executive, branch, impermissibly int.rfire with
the President's control over the deliberative processes of the
executive branch. Accordingly, these requirements run counter to
the President's authority as head of the unitary executive branch
to 'take Core that the laws be faithfully executed " U.S. Conat.,
art. ii, sec. ). and to coor6inato and supervise his subordi-
nates. Gee generally Myers v. United States, 272 U,$, 53, at
WMb". AC MLW
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163-164 (1926) 62=621 CODI&EMS1,100 COED V, SPnited Sates, 314
r.21 527, 530-6 t. Cl.
.
Were the bill to be presented to the trssident with these
provisions in their present fern, we mould recoment a veto.
In addition, one.section of the bill is very unclear and may
peas interpretive problems as volt.
*roposed section 42l(b) of Title 10 provides as follovas
(b) The Secretary or Defense may use funds other than
appropriated tunas to pay for the expenses of arrange-
ments with foreign countries for cryptologie support
vi.,hout regard to the provisions of law relating to the
use of the united States Government funds, except
that -!
(1) no such funds ma be used, in whole or in
part, by or for the benefit of the Department of
efensv for a purpose for which Congress had previously
denied tundsf
(Y) proceeds from the sale of cryptologic items
may only be used to purchase replacement items similar
to the Ste= that ore sold # and
(3) the euthorjty provided by this subsection may
not be used to acquire items or services for the
exclusive benefit of the United States.
Ne would interpret the phrase ?a purse for which Congress bad
proviously denied funds to refer only to affirmative prohibi-
tions on eponding enacted by Congress. A broader interpretation
of the act of 'ddnfying] funds" -? to include appropriation
proposals that Cr. never acted upon by committees, provisions of
billa that are dropped in conference, floor amendments that are
voted down, or many other similar events -- could violate the
Coneti.tution. ~r. , 462 U.S. 919, 962 (1903) (congres-
sional actions which are an exercise of legislative power are
subject to bicameralism and presentment requirements of Constitu-
tion), Thus, the phrase may not be interpreted to mean, for
example, that ant house of Congress moy prohibit expenditure
under this section by disapproving of funding for that purpose at
some point after enactment of the bill.
Of course, if the phrase is meant to be purely descriptive
and thus capable of definition as of the date of the enactment of
the bill, congress could craft a broader definition of 'denfyin9)
funds" vhile avoiding the constitutional problem. As a practical
matter, however, the phrase as currently drafted is insuffi-
ciently specific to enable the Zxecutive to determine what the
limits of any such broader construction might be.
- 2 ?
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The oftics e! Mtanapemtht and tvaptt has sdvistd this
ospartment that there is no Obj action to the SUbtnisslon of this
"sport from tbs atangpoont of the Administration's program.
Sincerely,
Thomes fit. bo.-d
Acting AsSISIant Attorney Q*ntral
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