SECTION 603 OF S. 1324, AS AMENDED

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP92M00732R001100030036-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 5
• Document Creation Date: December 23, 2016
• Document Release Date: April 29, 2014
• Sequence Number: 36
• Publication Date: September 13, 1989
• Content Type: MISC

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DRAFT 9/13/89
SECTION 603 OF S. 1324, AS AMENDED
SEC. 603. Sub act to the authorit of the Attorne
General/ Whe FBI s al superv se be responsie e or the
conduct of all investigations of?Violations of the espionage
laws of the United States by persons employed by or assigned
to United States diplomatic missions abroad. All departments
and agencies shall report immediately to the FBI any
information concerning (indicating) such a violation. Other
departments and agencies shall provide appropriate assistance
to the FBI in the conduct of such investigations. Nothing in
this provision shall be construed as establishing a defense
to any criminal, civil, or administrative action.
PROPOSED LANGUAGE FOR CONFERENCE REPORT
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Section 603 was adopted by the Senate for the purpose of
assigning to the FBI overall responsibility for the conduct
of espionage investigations at U.S. embassies and other
diplomatic establishments outside the United States. Recent
espionage cases at such locations have highlighted the lack
of overall, uniform direction governing such investigations.
Various departments and agencies of the U.S. Government
assign personnel to U.S. diplomatic establishments. These
include both civilian and military personnel as well as
contractor employees. When particular employees who are
subject to U.S. laws are suspected of espionage, the agency
with responsibility for any ensuing investigation has
depended upon the particular office within an embassy
employing the individual concerned. For example, if military
personnel were involved, the investigating agency would
depend upon the branch of service of the serviceman
concerned. If the employee were a civilian, the
investigation might be carried out by the FBI alone or acting
in concert with other appropriate investigative elements. By
making the FBI responsible for the conduct of all such
investigations, the Senate sought to ensure that the U.S.
agency with predominance in the counterintelligence field
would, indeed, direct all such investigations, regardless of
the employing department or agency, and would thereby develop
expertise in dealing with such cases at diplomatic
establishments that would, in time, improve the efficiency
and results of such investigations in general.
The House bill had no comparable provision.
Discussion
The Conferees agree with the objectives of the senate
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provision although they believe that three adjustments to the
provision reported by the Senate are desirable:
(1) The first adjustment is to add specific language to
the provision making clear that the FBI's responsibility here
is subject to the authority of the Attorney General. This
would be implicit in any case, but the conferees believed it
desirable to specify this relationship in the statute itself
for two reasons. First, it is contemplated that the Attorney
General will establish guidelines and policies, in
consultation with affected departments and agencies, to
implement this section. Such guidelines would, among other
things, take into account CIA's responsibility under
Executive Order 12333 to coordinate counterintelligence
activities abroad, the DCI's responsibility under that Order
to coordinate foreign liaison relationships, and the Da's
responsibilities under the National Security Act of 1947 to
protect intelligence sources and methods. Second, it is
contemplated that should such departments or agencies have
concerns with respect to the FBI's exercise of this authority
in particular cases, their recourse would be to raise the
matter with the Attorney General for resolution.
(2) The second change to the Senate formulation would be
to clarify that that FBI's authority in these circumstances
should be to supervise the conduct of espionage
investigations, not necessarily to carry out all such
investigations itself. Departments and agencies that have
investigative capabilities and authorities insofar as their
own personnel are concerned should not be precluded from
using such capabilities and authorities when it is
appropriate and desirable to do so. For example, each of the
military departments has concurrent authority to conduct
espionage investigations of its own servicemen under the
Uniform Code of Military Justice (UCMJ), utilizing
investigative techniques that are, in some cases, more
readily available in overseas locations than those available
to civil law enforcement authorities. By assigning the FBI a
coordination role for such investigations, the Conferees do
not intend to preclude use of investigators employed by other
departments and agencies or the use of techniques authorized
such investigators where it is appropriate and desirable to
utilize them. Indeed, the Conferees anticipate that any
espionage investigation conducted at a diplomatic
establishment would ordinarily involve the participation of
any investigative agency with concurrent jurisdiction over
the subject and the use of all lawful investigative
techniques that would facilitate the investigation.
While the Conferees intend that the FBI will supervise
all such investigations, whether FBI agents will be
dispatched to a particular diplomatic establishment where an
investigation is occurring will depend upon the circumstances
of the case, including the availability of FBI agents for
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such purpose. The intent is that the FBI shall exercise
overall supervision of those investigations that it does not
conduct or participate in and that the FBI shall be informed
contemporaneously of all significant developments in such
investigations.
(3) The third adjustment to the Senate provision would
be to clarify that departments and agencies should be legally
required to report to the FBI any information concerning
violations of the espionage statutes which they have
identified. The language in the Senate bill would have
required the reporting of any information "indicating" a
violation of the espionage statutes. While the conferees
agree that the FBI should be brought into such situations at
the earliest appropriate opportunity, they were concerned
that the Senate formulation would be interpreted as requiring
the reporting of all types of information concerning U.S.
employees at diplomatic establishments to the FBI which might
be construed as "indications" of espionage, whether or not
such employee or employees had, in fact, been identified as a
suspect in an espionage investigation.
The Conferees intend that, at a minimum, any department
or agency which identifies a particular U.S. employee or
employees at a U.S. diplomatic establishment as possibly
having violated the espionage laws of the United States be
reported at once to the FBI. Consultations at earlier stages
with appropriate FBI Headquarters offices are encouraged, but
the Conferees intend that the FBI take responsibility for the
coordination of such investigations only after one or more
espionage suspects have been identified. Thus,
investigations of security violations or of suspected
violations of regulations which might be eventually be linked
to espionage, e.g. violation of fraternization rules,
engaging in black market activities, etc., are left in the
hands of existing investigative authorities until such
investigations develop evidence of a link to a foreign
government. Similarly, unsubstantiated, non-specific
information coming to the attention of elements within a
diplomatic establishment is not required to be reported to
the FBI under this provision unless such information links a
particular employee or employees to possible espionage.
Again, seeking FBI Headquarters assessment of such
infomation is encouraged, but the statute itself does not
impose a reporting requirement in these circumstances. There
may, for example, be legitimate concerns among departments
and agencies who receive such information that premature
dissemination of such information and subsequent
investigative actions based thereon could unnecessarily
expose sensitive confidential sources.
The Conferees also make clear that this provision
applies only to the conduct of espionage investigations, not
to the decision whether to prosecute, or whether to prosecute
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in a civil or military court. These are decisions made by
the Department of Justice in consultation with affected
departments or agencies.
The Conferees further make clear that a decision by the
FBI to terminate, or to decline to pursue, an espionage
investigation under this provision, does not preclude
departments or agencies with concurrent authority from
continuing to investigate pursuant to such authority, or from
continuing to investigate lesser or related offenses
occasioned by the same conduct, for prosecution or
appropriate administrative actions; provided that information
concerning violations of the espionage statutes which may be
subsequently developed shall be reported immediately to the
FBI. Thus, in a case where the FBI decides to close an
investigation of a military serviceman for espionage, the
military investigative agency concerned may nonetheless
Continue its investigation or continue to develop additional
evidence of lesser offenses--for example, failure of the
serviceman concerned to report unauthorized contacts with
foreign nationals--as the basis for courts martial or
non?judicial punishment under the UCMJ. Should such
investigations produce information concerning violation of
the espionage statutes, however, such information must be
reported immediately to the FBI.
It is also not intended that the responsibility assigned
the FBI by this section to coordinate the conduct of
investigations be construed as authority for the FBI to
coordinate the conduct of damage assessments which would
ordinarily ensue in these circumstances. This would be left
to the department or agency whose classified information was
the subject of the compromise in question.
Finally, this provision is intended solely to regulate
interagency relationships, and shall not be construed to
establish a defense to any matter based upon actions taken by
the Department of Defense or any other department or agency
with authority to investigate and dispose of allegations of
espionage.
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