Intelligence


THE STATUTORY CIA INSPECTOR GENERAL ACT, THE NATIONAL INTELLIGENCE REORGANIZATION ACT, AND THE NATIONAL SECURITY REFORM ACT (Senate - January 25, 1989)

[Page: S122]

Mr. SPECTER. Mr. President, I am reintroducing today three bills which I originally proposed on October 27, 1987, during the 100th Congress. The first of these bills constitutes a division from my proposed National Security Reform Act (S. 1818), which I shall refer to as the Central Intelligence Agency Inspector General Act. The second bill represents an update of my National Intelligence Reorganization Act (S. 1820). The third bill is my proposed National Security Reform Act (S. 1818) minus the CIA inspector general provision.

Each of my original bills served, I believe, as a useful catalyst in enacting legislation or in generating debate and discussion on national security matters with my colleagues, members of academia and present and former government officials.

Portions of the legislation relating to the CIA inspector general, originally introduced as S. 1818, the National Security Reform Act, were enacted into law. These provisions, incorporated into the Intelligence Authorization Act of 1989, were signed into law by President Reagan on September 28, 1988, after being passed by both Houses of Congress. These provisions specified that the Director of Central Intelligence shall furnish to the Intelligence Committees the following reports relating to the activities of the inspector general:

First, a report made at the time any inspector general is selected by the DCI, specifying the name and background of the person selected and a certification that such selection was made without regard to political affiliation.

Second, a report made at the time any inspector general is removed by the DCI and the basis for such removal.

Third, semiannual reports, to be furnished not later than June 30 and December 31 of each year, summarizing the activities of the Office of Inspector General to include descriptions of any violations of laws or regulations and the status of corrective actions taken.

Fourth, a report of any decision made by the Director of Central Intelligence to prohibit the IG from initiating, carrying out, or completing any audit, inspection, or investigation within the CIA, to be made within 7 days of such decision.

Fifth, a report within 7 days of any other decision made by the DCI which would substantially affect the ability of the inspector general to carry out his duties and responsibilities. This report shall include the position of the inspector general with respect to such decision.

The first bill I am introducing today denominate as the Central Intelligence Agency's Inspector General Act and includes the balance of the inspector general provisions of S. 1818 as revised. Essentially, these provisions include:

First, creation in law of a CIA Office of Inspector General accountable to the Congress.

Second, appointment of the inspector general by the President with the advise and consent of the Senate.

Third, removal of the inspector general only by the President.

Fourth, empowering the IG to issue subpoenas as necessary to carry out his responsibilities.

The purpose of the expanded provisions for a CIA inspector general is to improve the credibility of the CIA and therefore, to improve its effectiveness by requiring independence of the CIA inspector general by mandating that the IG report directly to the Congress.

The second bill I am introducing, Mr. President, is the National Intelligence Reorganization Act, which I also originally introduced in the 100th Congress as S. 1820. As I indicated earlier, this legislation has drawn broad interest especially from academia and former senior government officials. For example, on March 3, 1988, Georgetown's Foreign Service Graduate School sponsored a 1-day symposium on this comprehensive legislation which, in my view, greatly improves the management structure and control of the activities and vast resources of our country's intelligence agencies and departments. Several Presidents since President Eisenhower and past Senate Intelligence Committees have been trying to define more clearly the missions, structure and management of the intelligence community into a more cohesive, integrated and efficient force for national security. Unfortunately, the effort has been only marginally successful; a more comprehensive change is long overdue and the National Intelligence Reorganization Act will serve this end.

I have also consulted with a broad spectrum of former senior government officials from the field of intelligence and national security. In particular, I have placed great value in the counsel provided by former Secretary of Defense, Clark Clifford, who was the principal framer of the 1947 National Security Act which created the CIA. In my view, there is no wiser counsel in America's national security affairs than Mr. Clifford, who has offered several recommendations which I have incorporated into the legislation. I am including for the Record, a copy of my June 20, 1988, letter to Mr. Clifford and his July 19, 1988, response.

I am introducing a third bill which is a part of S. 1818. When I first introduced the National Security Reform Act legislation, the administration was in the midst of a major crisis arising from the sale of arms to Iran. That matter illustrated the willingness of certain members of the executive branch to thwart the spirit and letter of the law, in this case, the Intelligence Oversight Act of 1980. That law required the executive branch to report covert actions in a `timely fashion' to the Intelligence Oversight Committees. There was a wise rationale behind this law. It was to provide the President the benefit of congressional counsel before undertaking foreign policy action which might be unwise. As we all painstakingly learned, congressional notification was bypassed and the President and the country were thrust into a major crisis of confidence and credibility. The rest is history.

Consequently, in an unusual Saturday session of the Senate Select Committee on Intelligence on June 27, 1987, members of the committee had an extended debate on legislative measures which might be needed to help ensure that the country is spared another badly conceived Iran-Contra affair. There was near unanimous agreement that the current law on the reporting of covert action to the Congress needed clarification and restructuring. During the debate I offered ideas and language which I later incorporated into a legislative proposal, the National Security Reform Act. Several of these proposals were also incorporated into the comprehensive intelligence oversight bill, S. 1721, which bill overwhelmingly passed the U.S. Senate by a vote of 71 to 19 on March 15, 1988. My legislation differs from S. 1721 in several significant respects. First, I call for the President to inform the Congress within 24 hours instead of 48 hours of any finding he may sign authorizing covert action. I believe that while the 24-hour standard is more stringent, it will provide the opportunity for more timely congressional counsel. The earlier there is congressional input, the better, because it will have a greater likelihood of reversing any unwise Executive action. Clearly, there will be times when key congressional leaders will not be available in which case I would expect a good faith effort of notification. Second, I am in favor of Presidential notification of eight instead of four designated congressional leaders to include the chairmen and ranking minority members of the Senate and House Intelligence Committees. I firmly believe that the Intelligence Committee leaders will understand more fully the nature of the proposed action from their current experience in intelligence matters and will provide valuable insights from such experience.

Regrettably, the Iran-Contra affair also demonstrated the willingness of certain executive branch members to deceive the Congress. Nothing I heard during the Iran-Contra proceedings troubled me more than this deceit. Such acts, if allowed to go unchecked, will only foster more deceit and will represent the initial divisive cracks in the Constitution's call for a system of checks and balances. Therefore, I am again including in the National Security Reform Act a provision to require mandatory penalties where executive branch officials make false statements to congressional committees. The first bill to create an independent inspector general with expanded powers follows, and I ask unanimous consent that the bill be printed in the Record.

There being no objection, the bill was ordered to be printed in the Record, as follows:

[Page: S123]

The Central Intelligence Agency Act of 1949 (50 U.S.C. 403a et seq.) is amended by deleting all after Sec. 16 and adding the following:

`INSPECTOR GENERAL FOR THE CENTRAL INTELLIGENCE AGENCY

`Sec. 17. (a) Purpose; Establishment: In order to create an objective and effective unit, appropriately accountable to the Congress, to initiate and conduct independently, inspections, investigation and audits relating to programs and operations of the Central Intelligence Agency, there is hereby established in the CIA an office of Inspector General.

`(b) Appointment and Removal: There shall be at the head of the Office an Inspector General who shall be appointed by the President, by and with the advice and consent of the Senate. This appointment shall be made without regard to political affiliation and shall be made solely on the basis of integrity, the security standards of the CIA and on prior experience in the field of foreign intelligence. Such appointment shall also be made on the basis of demonstrated ability in accounting, financial analysis, law, management or public adminstration. The Inspector General shall report directly to and be under the general supervision of the Director of Central Intelligence.

`(c) The Director may prohibit the Inspector General from initiating, carrying out, or completing any audit, inspection or investigation, or from issuing any subpoena, concerning ongoing operations only, and only if he determines that such prohibition is necessary to protect vital national security interests of the United States.

`(d) If the Director exercises any power under subsection (c) of this section, he shall submit an appropriately classified statement of the reasons for the exercise of the power within seven (7) days to the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence.

`(e) The Inspector General may be removed from office only by the President. The President shall immediately communicate in writing to the Senate Select Committee on Intelligence and the House Permanent Select Committee the reasons for any such removal.

`(f) Duties and Powers: (1) It shall be the duty and responsibility of the Inspector General appointed under this Act--

`(A) to provide policy direction for and to conduct, supervise, and coordinate independently, the inspections, investigations and audits relating to the programs and operations of the CIA to assure they are conducted efficiently and in accordance with applicable law and regulations; and

`(B) to keep the Director fully and currently informed concerning violations of laws and regulations, fraud and other serious problems, abuses and deficiencies and to report the progress made in implementing corrective action.

`(2) In the event the Inspector General is unable to resolve any differences with the Director on the execution of his duties and powers, he shall report such matter to the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence within seven (7) days.

`(g) The Inspector General shall have the power to issue subpoenas, as may be necessary, to carry out his work. In addition, he shall have direct access to all records and direct and prompt access to the Director when necessary for any purpose pertaining to the performance of his duties.

`(h) Reports: The Inspector General shall not later than June 30 and December 31 of each year, prepare a classified semiannual report summarizing the activities of the Office during the immediately preceding six-month period. Such reports also should include: (i) a certification that such activities have been carried out in accordance with accepted Federal standards for inspections, investigations and audits; (ii) a certification that the Inspector General has had full and direct access to all information relevant to his activities; (iii) a description of any violation of law or willful violation of regulations, or any evidence of serious fraud, waste and abuse, identified during the reporting period; and (iv) the status of corrective actions taken during the reporting periods in response to Inspector General recommendations.

`(i) Classified semiannual reports of the Inspector General shall be furnished to the Director who shall transmit them to the Senate Select Committee on Intelligence and to the House Permanent Select Committee on Intelligence Representatives within 30 days after receipt, together with any comments he deems appropriate.'

[Page: S124]

NATIONAL INTELLIGENCE REORGANIZATION

Mr. SPECTER. Mr. President, the second bill is the National Intelligence Reorganization Act. A more detailed statement of it's purpose follows:

This bill would enhance considerably the objectivity and reliability of our Nation's intelligence, which the events of the past 3 years have demonstrated to be woefully lacking. It would greatly improve the management structure and control of the activities and vast resources of our country's intelligence agencies and departments.

This bill is based on S. 1820 which I introduced in the 100th Congress and on which I testified before the Senate Intelligence Committee on November 1987.

In his Iran-Contra testimony, Secretary of State George Shultz summarized, in very clear terms; the principal problem with U.S. intelligence. `[One is] the importance of separating the function of gathering and analyzing intelligence from the function of developing and carrying out policy. If the two things are mixed together, it is too tempting to have your analysis and selection of information that's presented favor the policy that you're advocating `Secretary Shultz went on to say that, long before the Iran-Contra events came to light, he already had come to have grave doubts about the objectivity and reliability of some of the intelligence he was receiving precisely because the people who supplied it were too deeply involved in advocating and carrying out policy.

In the 40 years since passage of the National Security Act the Directors of Central Intelligence have been tested repeatedly on their ability to maintain a delicate separation of two competing responsibilities. On the one hand, the Director of Central Intelligence [DCI] has been expected to provide unvarnished intelligence information to the President and other foreign policy-makers. On the other hand, he has been asked to be a participant in the making and execution of foreign policy through covert actions. If history has taught us anything, it is that the desired separation cannot and has not been maintained. It is unrealistic and probably unfair to expect our Nation's senior intelligence officer to be the purveyor of objective, unbiased information upon which the President and Secretary of State may formulate a foreign policy, while at the same time charging him to influence and implement that policy in the form of covert action.

The problem is particularly acute when the DCI is a foreign policy activist. Director William Casey was not the first Director of Central Intelligence who desired to be involved to some degree in the formulation or implementation of foreign policy, nor is he likely to be the last. Recognizing this, we should take steps to ensure, to the greatest degree possible, some structural separation of the DCI's current function. We simply cannot afford to have two Secretaries of State, two foreign policymakers who may be attempting to move the country in different directions, one overtly and the other covertly. No one is well served by this contradiction--not the President, not the Congress and not the country.

Now we have a choice, we can preserve the status quo and hope that the current Director of Central Intelligence--and each of his successors--will understand the lessions of the Iran-Contra affair. Or we can create a better system of checks and balances on covert action undertaking. It is up to the Congress to clarify in the law what we expect the Director of Central Intelligence and the CIA to do and not to do. We can do this by providing an organizational framework designed to permit the Director of Central Intelligence to provide objective, reliable and coordinated intelligence to provide objective, reliable and coordinated intelligence to policymakers in a timely manner. However, we must make it clear to the Director--not simply the current one but to all future ones--that it is not the DCI's function to formulate and implement foreign policy.

This bill accomplishes these purposes by:

First, amendment the National Security Act of 1947 to make clear that the principal role of foreign intelligence and of the agencies who provide such intelligence is to ensure the provision of objective, reliable, coordinated and timely information upon which the President and other senior foreign policymakers may base sound foreign policy decisions.

Second, relieving the Director of Central Intelligence of the responsibility for implementing covert actions but charging him with responsibility for overseeing the conformity of such actions with applicable laws and regulations.

Third, establishing the position of `Director of the Central Intelligence Agency' to manage the CIA on a full time basis and to implement cover actions directed by the President.

As I already have stated, this bill will greatly enhance the management of the activities and vast resources of our several intelligence departments and agencies. In 1947, President Trument, mindful of the President's need for intelligence and of Pearl Harbor's bitter lesson stemming from uncoordinated and poorly disseminated intelligence, formed an agency to centralize intelligence. The position of Director of Central Intelligence was created to head the new Central Intelligence Agency and to coordinate the activities of the intelligence entities in existence. Those entities consisted of the intelligence services of the Army and Navy, a small bureau in the State Department and remnants of the OSS. Since 1947, that coordination task has grown enormously with the addition of complex technology, the commitment of vast resources and the establishment of many large, secretive and organizationally complex departments and agencies.

Since John F. Kennedy, several Presidents have directed their Director of Central Intelligence to devote the bulk of their time to the intelligence community. For a number of reasons this has not happened. Suffice it to say that, in some cases. DCI's have found the operational role of the CIA more glamorous than managing an intelligence community composed of agencies and departments opposed to centralized direction. Events such as Watergate, congressional investigations of wrongdoings, and the turnover of DCI's, also have contributed to the neglect.

Today, the intelligence community as it is called, consists of the Central Intelligence Agency, the Defense Intelligence Agency, the National Security Agency, the large foreign intelligence and counterintelligence elements of the Army, Navy, Air Force and Marine Corps, offices for the collection of specialized intelligence through reconnaissance, the FBI's Foreign Counterintelligence Division, the State Department's Bureau of Intelligence and Research and elements of the Treasury and Energy Departments. These organizations provide what we call national foreign intelligence. There are other elements in the Government, mostly within the Defense Department, which run a vast system of tactical intelligence nearly as complex and as expensive as that of the national foreign intelligence world. Outside of the Government, there is another world of contractors who design and develop these complex intelligence system and, in some cases, operate them for the intelligence agencies.

Make no mistake about my remarks. These agencies and programs are critical to our national security. The country needs them. But their budgets are in the billions; their growth in terms of people is the greatest in the history of U.S. intelligence; their mission and challenges now and for the foreseeable future are so demanding, complex, and interdependent that their management and leadership can no longer be accomplished by a Director of Central Intelligence who also must manage a large agency such as the CIA.

The Intelligence Oversight Committees which review the programs and budgets of the intelligence community have clearly identified management of the intelligence community as critical issue. In 1976, the Select Committee to study Government operations with respect to intelligence--the predecessor to the Senate Select Committee on Intelligence--`found concern that the function of DCI in his roles as intelligence community leader and princippal intelligence adviser to the President is inconsistent with his responsibilities to manage one of the intelligence community agencies--the CIA.' The committee also expressed concern that the DCI's new span of control--both the entire intelligence community and the entire CIA--may be too great for him to exercise effective detailed supervision of clandestine activities. Those concerns are even greater today than they were 13 years ago, because of the greater challenges and costs facing intelligence, the growing competition for resources and the unacceptable risks to U.S. foreign policy.

To address this problem, the bill I am introducing today also:

Changes the title of the `Director of Central Intelligence' to the `Director of National Intelligence' to reflect the new, more important status of this position--the title is not new; it was first proposed by the Senate Intelligence Committee in 1980;

Establishes the Director of National Intelligence as the primary adviser to the President on national foreign intelligence and as the full-time manager of the intelligence community with clearly defined statutory responsibilities and authorities for the foreign intelligence effort;

Makes the Director of National Intelligence a statutory member of the National Security Council to ensure that he is aware of emerging issues for which there is an intelligence need and to ensure that there is an objective intelligence base for national security and foreign policy decisions being contemplated;

Ensures that the position of the Director of National Intelligence as leader of the intelligence community is not a hollow one, by giving the position not only the statutory authority to approve and submit the intelligence community program, resources and budget, but also to task all intelligence collection and analytical resources;

Eliminates the need for a Director of the Intelligence Community staff since that 237-person staff plus other offices and personnel would report directly to the Director of National Intelligence.

Finally, I endorse completely the view expressed by Judge Webster, the present CIA Director, that the Agency's directorship should not change every time a new President is elected. This gives rise to charges that the position has been politicized and that there is an inadequate institutional memory of lessons learned from the past. In the past 15 years there have been 7 heads of the CIA and only 2 of these were career intelligence officers. We cannot afford a generalized loss of confidence in the CIA's objectivity and reliability, because of the politicization of its analysis such as was expressed by Secretary of State Shultz, to ensure a more professional approach to intelligence activities and analysis, to reduce the risk of politicization and to protect against the dangers of an intelligence `czar,' this bill also would:

Create a fixed, 7-year tenure for the Director of the Central Intelligence Agency.

Require that at least one of the positions of Director or Deputy Director of the Central Intelligence Agency be filled by a career intelligence officer from the intelligence community.

I am not proposing that the Director of National Intelligence be tenured because I believe that the President should have the right to select individuals who are to serve as his primary advisers. I believe that with a separate and tenured Director of the CIA and with other intelligence agency heads not under the administrative control of the Director of National Intelligence (the Directors of the National Security Agency and the defense intelligence agencies are appointed by the Secretary of Defense), we would have a better system of checks and balances against politicization of intelligence.

The beginning of a new administration is a particularly propitious time to consider this reorganization issue. Accordingly, I urge my colleagues to join in support of this legislation.

Mr. President, I ask unanimous consent that the bill and the referenced correspondence with Mr. Clifford be printed in the Record.

There being no objection, the material was ordered to be printed in the Record, as follows:

[Page: S125]

S. --

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SHORT TITLE

Section 1. This Act may be cited as the `National Intelligence Reorganization Act.'

Sec. 2. Section 101(a) of the National Security Act of 1947 is amended in the fourth undesignated paragraph--

(1) by striking out `and' at the end of clause (6);

(2) by striking out the period at the end of clause (7) and inserting in lieu thereof'; and'; and

(3) by adding at the end thereof the following:

`(8) The Director of National Intelligence in his role as primary adviser on intelligence.'.

Sec. 3. Title I of the National Security Act of 1947 is amended by inserting new section 102.

`DIRECTOR OF NATIONAL INTELLIGENCE

`Sec. 102. (a)(1) There are hereby established the positions of Director of National Intelligence (hereafter in this Act referred to as the `DNI') and the Deputy Director of National Intelligence who shall each be appointed by, serve at the pleasure of, the President, by and with the advice and consent of the Senate.

`(2) The principal role of foreign intelligence and of the agencies which provide such intelligence is to ensure the provision of objective, reliable, coordinated, and timely information upon which the President and other senior foreign policy makers may base sound foreign policy decisions. To ensure such provision, the DNI shall serve as the nation's senior intelligence officer and primary adviser to the President on foreign intelligence matters, Accordingly, the DNI shall be freed from any duties involving the formulation of foreign policy and the implementation of special activities except as may be specifically authorized by this Act. The Deputy Director of National Intelligence shall act for, and exercise the powers of, the Director during his absence or disability.

`(3) the DNI shall be responsible directly to the President and the National Security Council.

`(4) Upon request, any department, agency, or other component of the United States Government involved in intelligence or intelligence-related activities shall detail for the use of the DNI such staff as may be necessary to carry out the duties of the DNI under this section.

`(b) To carry out his reponsibilities under this section, the DNI shall--

`(1) ensure that such objective, reliable and coordinated national foreign intelligence is provided to the President and officials in the executive and legislative branches in a timely manner;

`(2) oversee and provide direction to the national foreign intelligence activities of all agencies, departments, offices, and other entities of the intelligence community.

`(3) develop such strategy, objectives and guidance for the intelligence community as will enhance capabilities for responding to expected future needs for national foreign intelligence;

`(4) provide guidance for national foreign intelligence program and budget development to program managers, heads of agencies, departments, offices, and other entities of the intelligence program and budget;

`(5) review, evaluate, approve, and submit, to the Congress through the President, a national foreign intelligence program and budget;

`(6) review and approve all requests for reprogramming national foreign intelligence funds;

`(7) develop collection strategies, objectives, and targets in the intelligence community for national foreign intelligence requirements and priorities established by the National Security Council;

`(8) direct, control, and manage the tasking of national foreign intelligence collection activities;

`(9) coordinate, produce, and disseminate all national foreign intelligence and, levy analytic tasks on all intelligence community production organizations and entities in consultation with those organizations and entities. Intelligence of the departments and agencies of the Government relating to the national security shall be open to the audit of the DNI, and such intelligence as relates to the national security and is possessed by such departments and other agencies of the Government, shall be made available to the DNI for correlation, evaluation, and dissemination;

`(10) ensure that appropriate mechanisms for competitive analysis are developed so that diverse views and judgments within the intelligence community are brought to the attention of national policymakers;

`(11) conduct jointly with the Secretary of Defense and the Chairman of the Joint Chiefs of Staff, military net assessments which allow for independent judgments by the DNI on areas critical to United States national security, strategy, tactics, or specific weapons systems;

`(12) oversee special activities on a perodic basis for compliance with established laws and regulations.

`(13) promote the development and maintenance of services of common concern by designated intelligence organizations on behalf of the intelligence community;

`(14) formulate policies concerning foreign intelligence and counterintelligence arrangements with foreign governments, coordinate foreign intelligence and counterintelligence relationships between agencies of the intelligence community and the intelligence or internal security services of foreign governments, and establish procedures governing the conduct of liaison by any agency, department, office or other entity of the United States Government with such services;

`(15) establish security countermeasure standards for the safeguard of foreign intelligence systems and information;

`(16) protect intelligence sources and methods from unauthorized disclosure;

`(17) establish appropriate staffs, committees, or other advisory groups to assist in the execution of the Director's responsibilities; and

`(18) monitor national foreign intelligence program implementation and conduct program and performance audits and evaluations.'.

Sec. 4. (a) Title I of the National Security Act of 1947 is amended by changing old section 102 to be new section 102A with the following changes:

(1) by inserting the words `director of the' before the caption `central intelligence agency'.

(b) Section 102A, subsection (a) of the National Security Act of 1947 is amended--

(1) by inserting after the words `. . . National Security Council', the words `and Director of National Intelligence';

(2) by striking out `Director of Central Intelligence' and inserting in lieu thereof `Director of the Central Intelligence Agency'; and

(3) by striking out `Deputy Director of Cerntral Intelligence' and inserting in lieu thereof `Deputy Director of the Central Intelligence Agency'.

(c) Section 102A subsection (a) of such Act is further amended--

(1) by inserting `(1)' immediately after `(a)';

(2) by striking out the proviso and the colon immediately proceding such proviso at the end of the second sentence and inserting in lieu thereof a comma and the following:
`except that at no time shall the two positions of the Director and Deputy Director be occupied simultaneously by--

`(a) commissioned officers of the armed services, whether in an active or retired status; or

`(b) individuals not having previously served in career positions in the Intelligence Community;

`(c) the term of service of the Director shall be seven years. The Director may not be reappointed and may be removed by the President only for cause; and

`(d) the provisions of 102A subsections (a)(1) shall apply to the service of the first Director and the first Deputy Director of the Central Intelligence Agency appointed after the date of enactment.'.

(d) Section 102A, subsections (b) and (c). References in these sections to the Director or Deputy Director of Central
Intelligence shall be deemed to be references to the Director or Deputy Director of the Central Intelligence Agency.

(e) Section 102A subsection (d) of such Act is amended to read as follows:

`(d) For the purpose of carrying out of the Agency's intelligence activities in the interests of national security, it shall be the duty and responsibility of the Agency, under the management direction of the Director of the Central Intelligence Agency:

`(1) to collect, produce, and disseminate foreign intelligence and counterintelligence, including information not otherwise obtainable, and to coordinate the collection of foreign intelligence or counterintelligence within the United States with the Federal Bureau of Investigation as authorized by law or procedures established by the Attorney General: Provided, That the Central Intelligence Agency shall have no police, subpoena, law enforcement powers, or internal security functions;

`(2) to conduct counterintelligence activities outside the United States and, without assuming or performing any internal security functions, conduct counterintelligence activities within the United States in coordination with the Federal Bureau of Investigation, as authorized by law and procedures established by the Attorney General;

`(3) to coordinate counterintelligence activities and the collection of information not otherwise obtainable when conducted outside the United States by other departments and agencies;

`(4) to conduct special activities approved by the President;

`(5) to conduct services of common concern for the Intelligence Community as directed by the National Security Council and the DNI;

`(6) to carry out or contract for research, development, and procurement of technical systems and devices relating to authorized functions;

`(7) to protect the security of its installations, activities, information, property, and employees by appropriate means, including such investigations of applicants, employees, contractors, and other persons with similar associations with the Central Intelligence Agency as are necessary; and

`(8) to conduct such administrative and technical support activities within and outside the United States as are necessary to perform the functions described in paragraphs (1) through (7), including procurement and essential cover and proprietary arrangements.'.

Sec. (a) Section 5313 of title 5, United States Code, is amended by--

(1) changing Director of Central Intelligence to read Director of National Intelligence;

(2) adding at the end thereof the following:

`Director of the Central Intelligence Agency.'.

(b) Section 5314 of title 5, United States Code, is amended by adding at the end thereof the following:

`Deputy Director of the Central Intelligence Agency.'.

Sec. 6. The provision of section 102a of the Act relating to the Director of the Intelligence Community staff is repealed.

Sec. 7. The Central Intelligence Act of 1949 is amended by changing references to the Director or Deputy Director of Central Intelligence to mean the Director or Deputy Director of the Central Intelligence Agency.

--

U.S. Senate,
Washington, DC, June 20, 1988.

Mr. Clark Clifford,
815 Connecticut Avenue NW.,
Washington, DC.

[Page: S126]

Dear Mr. Clifford: As you may be aware, in 1987 I introduced legislation to improve the effectiveness and objectiveness of national intelligence, principally through reorganization.

In view of the fact that your November 20, 1987 letter to the Senate Intelligence Committee suggested an organizational change--separation of the functions of the nation's chief intelligence officer and the director of the CIA, I would appreciate your views on the legislation in its entirety and on its specific features.

1987 marked the 40th anniversary of a historic piece of legislation in which you played so pivotal a role. The National Security Act has brought order and organization to our defense and national security apparatus and has served the nation well. But, in light of lessons learned over 40 years, the missions and structure for intelligence are in need of update for two very important reasons. For one, the number of intelligence agencies have multiplied since 1947 and the nature of intelligence has changed dramatically from one of labor intensity to one of capital intensity. This newer, vast, costly and complex world of intelligence is in need of stronger direction and management which only a leader divorced from the day to day management of the CIA can bring. As a prime example, the Senate Select Committee on Intelligence has recently noted large shortfalls in the planning and programming for collection assets necessary to monitor a potential START agreement. Given the fact that the Intelligence Community has been aware of this need and the number of different intelligence agencies who have been attempting to manipulate the end result, the lack of strong, central management direction has become all too readily apparent.

Secondly, the experiment whereby the nation's chief intelligence officer is also required to execute policy in the form of covert action simply has not worked. It may be unfiair to expect the DCI to maintain the delicate balance between implementing foreign policy in the form of covert action and providing unbiased intelligence. Unless the President receives unvarnished intelligence from the DCI without the concern, expressed by Secretary of State Shultz, that it may be driven by policy considerations in the form of covert action, then the President is not being well served.

To the critics who would claim that the proposed reorganization would create a new layer of bureaucracy and would weaken the position of the DCI, I would point out that the infrastructure has been in place for years. The Director of National Intelligence would manage the intelligence agencies through the extant Intelligence Community Staff and the National Intelligence Council. In addition, the stature and authorities of the DNI would be retained through his control of the Intelligence Community budget, by virtue of the fact that he would serve as the President's principal intelligence advisor and, finally through his appointment as a statutory member of the National Security Council.

Among the important features of S. 1820 are the following:

[Page: S127]

1. Establishes the position of Director of National Intelligence (DNI) and makes him a statutory member of the NSC in his role as primary advisor on intelligence.

2. States the principal role of intelligence and the U.S. intelligence agencies.

3. Establishes that the principal role of the DNI is to serve as the nation's senior intelligence officer and primary adviser to the President on foreign intelligence matters. It relieves the DNI from any duties involving the formulation of foreign policy and the implementation of `special activities.'

4. Delineates the DNI's responsibilities and authorities. (Most of these are extracted from Executive Order 12333).

5. Establishes the positions of Director and Deputy Director of the Central Intelligence Agency, requires that one or both be career intelligence officers and provides tenure to the D/CIA for a period of seven years.

6. Delineates the D/CIA's duties and authorities. (Most of these are also extracted from Executive Order 12333.) One duty is `to conduct special activities approved by the President. On this, I envision the D/CIA reporting directly to the President's National Security Advisor.

I look forward to your comments and recommendations.

Sincerely,
Arlen Specter.

--

CLIFFORD & WARNKE,

Attorneys and Counsellors at Law,
Washington, DC, July 19, 1988.

Hon. Arlen Specter,
U.S. Senate, Washington, DC.

Dear Senator Specter: I was pleased to receive your recent letter concerning S. 1820 which I have reviewed with interest. As I said in my November 20, 1987 letter to Senator Boren and Senator Cohen, proposals such as S. 1820 to separate the functions of the nation's chief intelligence officer and the director of the CIA should receive consideration by the intelligence committees. This consideration of course must be measured and deliberate.

As you have indicated, there is every reason to attempt to improve coordination of the nation's various intelligence agencies whose activities are vital to our security and effectiveness. A principal means of such coordination must be clear delineation of responsibility and accountability. Moreover, the role of the CIA in engaging in special or covert activities, as well as intelligence activities, pursuant to Section 102(d)(5) of the National Security Act of 1947, necessarily complicates this coordination. It is essential in fulfilling the strictures of the 1947 Act and related laws, along with the constitutional principles on which they are based, to keep covert activities separate from intelligence activities, as well as restricted to their intended scope and purpose. As you know, I recently have testified in this regard before the Senate Intelligence Committee, as well as its House counterpart and the House Foreign Affairs Committee.

The bill that you have proposed, in my estimation, largely addresses the principles and concerns that I have stated. Therefore, I support the overall conception of the legislation. There are, however, some specific aspects of the bill about which I would express some concern and suggest some revision.

First, the bill should establish more clearly the relationship between the DNI and the D/CIA. As I understand it, you propose that the D/CIA be subordinate to the DNI at least in the intelligence field where the DNI would oversee and coordinate all of the intelligence agencies on an equivalent basis. Such a system seems sensible, and the bill should make it more explicit.

Second and perhaps most significantly, the bill must more carefully address the management of covert activities. This is one aspect of the relationship of the DNI and D/CIA described above, but also a broader and more important aspect of the exercise of covert activities. As I understand it, the bill would charge the D/CIA with operational responsibility for formulating and implementing covert activities, but also charge the DNI with responsibility for overseeing such activities `on a periodic basis.' In addition, the DNI would serve on the National Security Council and thus be accountable directly to the President, while the D/CIA would not. I believe that it is essential to proper exercise of covert activities, pursuant to the National Security Act of 1947, that the head of the agency charged with primary responsibility for covert activities be accountable directly to the President. As you know, the President must approve all covert activities and must expect to answer for these activities to the Congress and the people. Only in this way can covert activities be controlled and contained. Any unneeded link in the chain of command over these activities threatens the system of constraint and responsibility.

Therefore, I would suggest that the bill be revised to specify that covert activities, unlike intelligence activities, are the sole responsibility of the D/CIA who is directly accountable to the President and the National Security Council--including, of course, the DNI--with regard to these activities. While such a revision entails differentiating between the D/CIA's authority over intelligence activities and covert activities, I view this differentiation as desirable. It will strengthen the intended and essential separation of these activities.

Third, the bill may require some revision with regard to the statutory obligations for reporting activities of the intelligence agencies to the Congress pursuant to the National Security Act of 1947, as amended. Having a single official like the DNI responsible for reporting all intelligence activities is sensible. Covert activities however should remain a subject for the President to report to the Congress. Additionally, the D/CIA as the offical with sole responsibility for covert activities should also be required to report to Congress.

I trust that these comments will prove to be constructive. Your effort to improve the operation of the intelligence agencies is notable, and I wish you success.

Sincerely,
Clark M. Clifford.

NATIONAL SECURITY REFORM

Mr. SPECTER. Mr. President, the third bill of this package is the National Security Reform Act. A more detailed statement of its purpose follows:

Hearings before the Senate Intelligence Committee and joint hearings before the Select Senate and House committees on the Iran/Contra matter have demonstrated the need for significant action in order to establish the appropriate role for congressional oversight pursuant to the checks and balances contemplated by the U.S. Constitution. Notwithstanding any action which may be taken by the President by way of Executive order on this issue, legislative change is necessary to impose statutory requirements governing this or future administrations where any such executive orders might be countermanded.

This bill is based on S. 1818 which I introduced in the 100th Congress and on which hearings were held by the Senate Intelligence Committee in late 1987.

This bill has four goals:

First, to encourage timely consultation with key Members of Congress to obtain the benefit of their insights to avoid future blunders like the transaction with Iran on arms for hostages;

Second, to provide for effective congressional oversight by specific statutory requirements establishing precise time limits for notice where the President decides not to consult in advance;

Third, to establish mandatory penalties where executive branch officials make false statements to congressional committees; and

Fourth, to add an Inspector General for the Central Intelligence Agency to help assure lawful internal compliance on matters which do not come within the purview of congressional oversight.

Notwithstanding the obvious failure of the executive branch to provide requisite information to Congress under the provisions of existing statutes, some have argued that there was compliance because of the vagaries of current law. In order to prevent a repetition of such conduct, the National Security Act of 1947 (50 U.S.C. 413) and section 662 of the Foreign Assistance Act of 1961 (22 U.S.C. 2422), known as the Hughes-Ryan amendment, are made more specific by this bill. Existing law prohibits the expenditure of funds by the Central Intelligence Agency for covert activites `unless and until the President finds that each such operation is important to the national security of the United States.' Efforts have been made to justify the CIA's action in the Iran/Contra matter by contentions that an oral finding was sufficient and that a later written finding could retroactively justify earlier covert action.

This bill unequivocally requires that the findings be in writing and that the President shall give notice and a copy of any finding to the House and Senate Intelligence Committees contemporaneously with the finding, but in no event later than 24 hours after it is made. A limited exception is provided for an oral finding in situations where the President deems that immediate action by the United States is required to deal with the emergency situation affecting vital national interests and time does not permit the preparation of a written finding. In that event, the finding must be immediately reduced to writing after the action is orally approved, with the written finding to be completed no later than 24 hours after the making of the oral finding.

Where an oral finding is used, there is the additional requirement that the written finding shall include a statement of the reasons of the President for having first proceeded with an oral finding. This bill further provides that a finding shall be effective only with respect to operations beginning after the finding was made by the President in order to preclude any contention that the finding may retroactively cover prior CIA operations.

These statutory requirements leave no room for doubt that no covert action may be undertaken without complying with the requirements of a written finding and the requisite notice, by any personnel of the executive branch or anyone acting on its behalf including foreign governments or any individual. This specific provision would preclude any future argument that the delivery of arms to Iran was legally justified, after the fact, by a retroactive finding or that other entities or actors were not bound by the same limitations affecting the CIA.

This bill further removes any possible ambiguity in section 501(b) of the President's obligation to notify the House and Senate Intelligence Committees of covert action. Section 501(b) now provides:

[Page: S128]

(b) The President shall fully inform the intelligence committees in a timely fashion of intelligence operations in foreign countries, other than activities intended solely for obtaining necessary intelligence, for which prior notice was not given under subsection (a) and shall provide a statement of the reasons for not giving prior notice.

The phrase `for which prior notice was not given under subsection (a)' carries the direct implication that the House and Senate Intelligence Committees should have been `fully and currently informed' of covert activities which are covered by section 501(b). It is obvious that the President did not comply with section 501(b) to inform the Intelligence Committees in a `timely fashion' where some 14 months elapsed from the time of the first covert action on the Iranian arms sales to the time that information reached the Intelligence Committees. Yet, some have contended that the exigencies of the situation excused the President from giving earlier notice so that requirements of a `timely fashion' were observed.

This bill removes any room for such future arguments by requiring the President to give notice to the Intelligence Committees contemporaneously with any written or oral finding. In order to remove any conceivable ambiguity as to the meaning of `contemporaneously,' a time certain is added requiring the information to be transmitted no later than 24 hours after the making of an oral or written finding. Absent the experience of the Iran/Contra matter, it would seem unnecessary to put a 24-hour limitation after the requirement of `contemporaneously,' but the recent experience that a time certain be affixed so that no one can later claim that `contemporaneously' means days, weeks, months, or even years later.

The requirement that the President shall contemporaneously inform the Intelligence Committees is intended to provide a procedure where the Intelligence Committees might be consulted in advance so that the President would have the benefit of their thinking if he so chose. The language of section 501(a)(1) to keep the Intelligence Committees `fully and currently informed of all intelligence activities' suggests a design for congressional input. Even with such contemporaneous information and the possibility of congressional input, it would remain within the President's power to proceed or not as he chooses.

There is much to recommend the availability of the institutional experience of the Senate and House Intelligence Committees. Had there been a review by the Intelligence Committees of the sale of arms to Iran, it is likely that the policy would never have been implemented. Had members of the Senate and House Intelligence Committees joined the Secretary of State and the Secretary of Defense and others in discouraging Presidential action in selling arms to Iran, the President might well have ceased and desisted on his own. Had the President declined to terminate that disastrous policy, then the Congress might have utilized its power to terminate funding through its appropriations powers, thereby ending the sale of arms to Iran.

The President's obligations on congressional oversight are further limited by excluding notice to the Intelligence Committees where the President determines that it is essential to limit such disclosure to meet extraordinary circumstances affecting the vital interests of the United States. In that event, such notice is to be given only to the chairman and ranking minority members of the Intelligence Committees, the Speaker and minority leader of the House of Representatives and the majority and minority leaders of the Senate. That more limited disclosure gives sufficient assurances of preservation of secrecy. A valid argument could be made that notice should go only to the leadership of both Houses in the interests of secrecy, but the greater familiarity of the chairman and vice chairman of the Intelligence Committees warrants their being included.

In 1988, the full Senate considered a 48-hour notice requirement included in S. 1721, as introduced by Senator Cohen. Although the Senate passed the bill including this notice requirement on March 15, 1988, the House of Representatives did not act on the bill prior to adjournment of the 100th Congress. Therefore, I am reintroducing my bill today in an effort to press for enactment of this necessary notice requirement.

This bill further provides for a mandatory sentence of imprisonment for any officer or employee of the United States who provides false information to any committee or subcommittee of the Senate or House of Representatives. No matter how rigorous or exacting statutory requirements may be, the oversight function of Congress cannot be accomplished if executive branch officials present false or misleading testimony to the Congress.

This is especially problemsome where witnesses appear before the Intelligence Committees in a secret session. Where evidence is provided in a public session, there is an opportunity for others to learn of the false information and to come forward with the truth so that the congressional oversight committees can perform their functions. That is not possible where key executive officials appear in secret and provide false information to the Oversight Committees. Under those circumstances, the committees realistically have little or no opportunity to determine the truth.

While false official statements to such congressional committees are covered by section 1001 of the Criminal Code, (18 U.S.C. 1001), this kind of misconduct, either in secret or public session, is so serious that it warrants a mandatory jail sentence.

While there has been experience with witnesses who return to the committee to apologize for prior testimony, such apologies fall far short of correcting the enormous damage which has been done. Obviously, there is no way to know how much false, deceptive, or misleading evidence has been presented in secret where the truthful information has never come to the attention of the committees. This mandatory jail sentence is intended to put members of the executive branch on notice that the matter is extremely serious as reflected by the heavy penalty.

It is obviously well within the ambit for any witness who appears before a congressional committee to decline to answer any question until that witness has had an opportunity to reflect on the question or to consult with his or her superior. Simply stated, it is understandable if a witness declines to answer or asks for a delay, but it is intolerable for false or deceptive answers to be made. The committee would doubtless consider not insisting on an answer where some reason was advanced for nondisclosure. Where any witness chooses to decline to answer a question, there is always an opportunity for further consideration by both the witness and the committee.

In any event, an enforceable legal obligation to answer does not arise as a practical matter until citation for contempt of Congress is obtained and the court orders an answer. It is only at this point that a witness is subject to a sanction for contempt for failing to answer.

This bill further provides that anyone who gives such false or deceptive information may recant and avoid possible criminal liability by correcting the record within 5 days. This 5-day period should be ample time for rethinking the issue and time to make the appropriate correction.

I ask unanimous consent that this bill be printed in the Record.

There being no objection, the bill was ordered to be printed in the Record, as follows:

[Page: S129]

S. 145

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `National Security Reform Act.'

SEC. 2. PRESIDENTIAL FINDINGS ON CERTAIN INTELLIGENCE OPERATIONS

Subsection (b) of section 501 of the National Security Act of 1947 is amended to read as follows:

`(b)(1) No covert operations in foreign countries, other than operations intended solely for obtaining necessary intelligence, may be approved, conducted, or funds appropriated or expended for, by or on behalf of the executive branch, unless and until the President makes a finding that each such covert operation is important to the national security of the United States. Operations by or on behalf of the executive branch include action by any officer or employee of the United States Government or any foreign government or individual acting at the request of or with the concurrence of any officer or employee of the United States Government. Each such covert operation shall be considered a significant anticipated intelligence activity for the purposes of this section.

`(2) Each finding of the President under paragraph (1)--

`(A) shall immediately be reduced to writing and signed by the President, except that the President may make such finding orally if the President determines that immediate action by the United States is required to deal with an emergency situation affecting vital United States interests and that time does not permit the drafting of a written finding;

`(B) any oral finding as provided for under (A) shall be reduced to writing immediately after the action is orally approved with the written finding to be completed no later than twenty-four hours after the making of the oral finding;

`(C) the written version of the oral finding shall include a statement of the reasons of the President for having first proceeded with an oral finding;

`(D) shall be effective only with respect to operations beginning after the finding was made by the President.

`(3) The President shall contemporaneously, but in no event later than twenty-four hours after the making of a written finding, inform the intelligence Committees of, and provide a copy of, any such finding which authorizes covert action unless the President determines it is essential to limit such notification to meet extraordinary circumstances affecting vital interests of the United States in which event oral notice shall contemporaneously, but in no event later than twenty-four hours after the making of an oral or written finding, be given to the chairman and ranking minority members of the Intelligence Committees, the Speaker and minority
leader of the House of Representatives and the majority and minority leaders of the Senate.'.

SEC. 3. DECEIVING CONGRESS OR ITS COMMITTEES.

Whoever being an officer or employee of the United States, in any matter within the jurisdiction of the Senate or the House of Representatives of the United States, or any committee or subcommittee thereof, knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statement or misrespresentation, or makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement of entry shall be imprisoned for not less than one year nor more than five years and may be fined not more than $10,000. Liability under the provisions of this section may be avoided by anyone who notifies in writing the committee or subcommittee of the Senate or House of Representatives of the United States of any violation hereof and provides the truthful information in its place within five days.

Mr. SPECTER. Mr. President, I think there is an optimistic spirit present today. I think in the past our leaders, including you, Mr. President, in your capacity as majority leader, Senator Dole as the Republican leader, have accomplished much.

Now we have a new administration, a new breeze which is blowing through the city, through the country, and through the world. We have new leadership on the majority side. And there have been eloquent statements today about the prospects for a great productive 101st Congress. I look forward to working with my colleagues on these important tasks.

Mr. President, I yield back the remainder of my time.

I thank the Chair.

END



NEWSLETTER
Join the GlobalSecurity.org mailing list