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Mr. McCURDY submitted the following conference report and statement on the bill (H.R. 1455) to authorize appropriations for fiscal year 1991 for intelligence activities of the United States Government, the Intelligence Community Staff, and the Central Intelligence Agency Retirement and Disability System, and for other purposes:
The committee of conference on the disagreeing votes of the two Houses on the amendment of the Senate to the bill (H.R. 1455) to authorize appropriations for fiscal year 1991 for intelligence activities of the United States Government, the Intelligence Community Staff, and the Central Intelligence Agency Retirement and Disability System, and for other purposes, having met, after full and free conference, have agreed to recommend and do recommend to their respective Houses as follows:
That the House recede from its disagreement to the amendment of the Senate and agree to the same with an amendment as follows:
In lieu of the matter proposed to be inserted by the Senate amendment insert the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the `Intelligence Authorization Act, Fiscal Year 1991'.
TITLE I--INTELLIGENCE ACTIVITIES
SEC. 101. AUTHORIZATION OF APPROPRIATIONS.
Funds are hereby authorized to be appropriated for fiscal year 1991 for the conduct of the intelligence activities of the following elements of the United States Government:
(1) The Central Intelligence Agency.
(2) The Department of Defense.
(3) The Defense Intelligence Agency.
(4) The National Security Agency.
(5) The Department of the Army, the Department of the Navy, and the Department of the Air Force.
(6) The Department of State.
(7) The Department of the Treasury.
(8) The Department of Energy.
(9) The Federal Bureau of Investigation.
(10) The Drug Enforcement Administration.
SEC. 102. CLASSIFIED SCHEDULE OF AUTHORIZATIONS.
(a) The amounts authorized to be appropriated under section 101, and the authorized personnel ceilings as of September 30, 1991, for the conduct of the intelligence activities of the elements listed in such section, are those specified in the classified Schedule of Authorizations prepared by the committee of conference to accompany H.R. 1455 of the One Hundred Second Congress.
(b) The Schedule of Authorizations described in subsection (a) shall be made available to the Committees on Appropriations of the Senate and House of Representatives and to the President. The President shall provide for suitable distribution of the Schedule, or of appropriate portions of the Schedule, within the executive branch.
SEC. 103. PERSONNEL CEILING ADJUSTMENTS.
The Director of Central Intelligence may authorize employment of civilian personnel in excess of the numbers authorized for fiscal year 1991 under sections 102 and 202 of this Act when he determines that such action is necessary for the performance of important intelligence functions, except that such number may not, for any element of the Intelligence Community, exceed 2 percent of the number of civilian personnel authorized under such sections for such element. The Director of Central Intelligence shall promptly notify the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate whenever he exercises the authority granted by this section.
TITLE II--INTELLIGENCE COMMUNITY STAFF
SEC. 201. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated for the Intelligence Community Staff for fiscal year 1991 the sum of $27,900,000, of which $6,580,000 shall be available for the Security Evaluation Office.
SEC. 202. AUTHORIZATION OF PERSONNEL END-STRENGTH.
(a) Authorized Personnel Level: The Intelligence Community Staff is authorized 240 full-time personnel as of September 30, 1991, including 50 full-time personnel who are authorized to serve in the Security Evaluation Office. Such personnel of the Intelligence Community Staff may be permanent employees of the Intelligence Community Staff or personnel detailed from other elements of the United States Government.
(b) Representation of Intelligence Elements: During fiscal year 1991, personnel of the Intelligence Community Staff shall be selected so as to provide appropriate representation from elements of the United States Government engaged in intelligence and intelligence-related activities.
(c) Reimbursement: During fiscal year 1991, any officer or employee of the United States or a member of the Armed Forces who is detailed to the Intelligence Community Staff from another element of the United States Government shall be detailed on a reimbursable basis, except that any such officer, employee or member may be detailed on a nonreimbursable basis for a period of less than one year for the performance of temporary functions as required by the Director of Central Intelligence.
SEC. 203. INTELLIGENCE COMMUNITY STAFF ADMINISTERED IN SAME MANNER AS CENTRAL INTELLIGENCE AGENCY.
During fiscal year 1991, activities and personnel of the Intelligence Community Staff shall be subject to the provisions of the National Security Act of 1947 (50 U.S.C. 401 et seq.) and the Central Intelligence Agency Act of 1949 (50 U.S.C. 403a et seq.) in the same manner as activities and personnel of the Central Intelligence Agency.
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TITLE III--CENTRAL INTELLIGENCE AGENCY RETIREMENT AND DISABILITY SYSTEM AND RELATED PROVISIONS
SEC. 301. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated for the Central Intelligence Agency Retirement and Disability Fund for fiscal year 1991 the sum of $164,600,000.
SEC. 302. CIA FORMER SPOUSE QUALIFYING TIME.
Section 204(b) of the Central Intelligence Agency Retirement Act of 1964 for Certain Employees (50 U.S.C. 403 note) is amended by inserting before the period at the end of paragraph (4) `during the participant's service as an employee of the Central Intelligence Agency'.
SEC. 303. ELIMINATION OF 15-YEAR CAREER REVIEW FOR CERTAIN CIA EMPLOYEES.
Section 203 of the Central Intelligence Agency Retirement Act of 1964 for Certain Employees (50 U.S.C. 403 note) is amended by striking out the second sentence and inserting in lieu thereof the following: `Any officer or employee who elects to accept designation as a participant entitled to the benefits of the system shall remain a participant of the system for the duration of his or her employment with the Agency. Such election shall be irrevocable except as and to the extent provided in section 301(d) of this Act and shall not be subject to review or approval by the Director.'.
SEC. 304. SURVIVOR ANNUITIES UNDER CIARDS FOR SPOUSES OF REMARRIED, RETIRED PARTICIPANTS.
(a) Calculation of Reduction in Annuities: Section 221(n) of the Central Intelligence Agency Retirement Act of 1964 for Certain Employees (50 U.S.C. 403 note) is amended by inserting `or elected under section 226(e)' after `(unless such reduction is adjusted under section 222(b)(5))'.
(b) Election of Reduction in Annuity: Section 226 of the Central Intelligence Agency Retirement Act of 1964 for Certain Employees (50 U.S.C. 403 note) is amended by adding at the end the following new subsection:
`(e) Upon remarriage occurring on or after the date of the enactment of this subsection to a spouse other than the spouse at the time of retirement, a retired participant whose annuity was not reduced (or was not fully reduced) to provide a survivor annuity for the participant's spouse or former spouse as of the time of retirement may irrevocably elect, by means of a signed writing received by the Director within one year after such remarriage, a reduction in the retired participant's annuity for the purpose of providing an annuity for such retired participant's spouse in the event such spouse survives the retired participant. The reduction shall be effective the first day of the month which begins nine months after the date of remarriage. For any remarriage that occurred before the date of the enactment of this subsection, the retired participant may make such an election within two years after such date. To the greatest extent practicable, the retired participant shall pay a deposit under the same terms and conditions as those prescribed for retired employees under the Civil Service Retirement and Disability System under section 8339(j)(5)(C)(ii) of title 5, United States Code. A survivor annuity elected under this subsection shall be treated in all respects as a survivor annuity under section 221(b).'.
(c) Conforming Amendment: Section 226(d) of such Act is amended by striking out `This' and inserting in lieu thereof `Subsections (a) through (c) of this'.
SEC. 305. REDUCTION OF REMARRIAGE AGE.
(a) Reduction of Remarriage Age for Survivor and Retirement Benefits.--The Central Intelligence Agency Retirement Act of 1964 for Certain Employees (50 U.S.C. 403 note) is amended--
(1) in section 221--
(A) in subsections (b)(1)(A) and (b)(3)(C), by striking out `age 60' each place it appears and inserting in lieu thereof `age 55'; and
(B) in subsection (g)(1), by striking out `age sixty' each place it appears and inserting in lieu thereof `age 55';
(2) in section 222--
(A) by striking out `60 years of age' each place it appears in subsections (a)(2), (a)(3)(A), and (b)(2) and inserting in lieu thereof `55 years of age'; and
(B) by striking out `age 60' each place it appears in subsections (b)(3), (b)(5)(A), (c)(3)(C), (c)(3)(D), and (c)(4) and inserting in lieu thereof `age 55'; and
(3) in section 232(b)(1), by striking out `attaining age sixty' in the last sentence and inserting in lieu thereof `attaining age 55'.
(b) Effective Date of Amendments.--(1) The amendments made by subsection (a) relating to widows or widowers shall apply in the case of a surviving spouse's remarriage occurring on or after July 27, 1989, and with respect to periods beginning after such date.
(2) The amendments made by subsection (a) relating to former spouses shall apply with respect to any former spouse whose remarriage occurs after the date of enactment of this Act.
SEC. 306. ELECTION BETWEEN CIARDS ANNUITY AND OTHER SURVIVOR ANNUITIES.
Section 221(g) of the Central Intelligence Agency Retirement Act of 1964 for Certain Employees (50 U.S.C. 403 note) is amended by adding at the end the following new paragraph:
`(3) A surviving spouse who married a participant after his or her retirement shall be entitled to a survivor annuity payable from the fund under this title only upon electing this annuity instead of any other survivor benefit to which he or she may be entitled under this or any other retirement system for Government employees on the basis of a marriage to someone other than the participant.'.
SEC. 307. RESTORATION OF FORMER SPOUSE BENEFITS AFTER DISSOLUTION OF REMARRIAGE.
(a) Survivor Annuity.--Section 224 of the Central Intelligence Agency Retirement Act of 1964 for Certain Employees (50 U.S.C. 403 note) is amended--
(1) in subsection (b)(1), by inserting `, except that the entitlement of the former spouse to such a survivor annuity shall be restored on the date such remarriage is dissolved by death, annulment, or divorce' after `fifty-five';
(2) in subsection (c)(1)(B), by inserting `, except that the entitlement of the former spouse to such a survivor annuity shall be restored on the date such remarriage is dissolved by death, annulment, or divorce' after `fifty-five'; and
(3) by adding at the end thereof the following new subsection:
`(e) Notwithstanding subsection (c)(2)(A) of this section, the thirty-month application requirement for a survivor annuity under this section to be payable shall not apply in cases in which a former spouse's entitlement to such a survivor annuity is restored under subsection (b)(1) or (c)(1)(B) of this section.'.
(b) Retirement Benefits.--Section 225 of the Central Intelligence Agency Retirement Act of 1964 for Certain Employees (50 U.S.C. 403 note) is amended--
(1) in subsection (b)(1), by inserting `, except that the entitlement of the former spouse to benefits under this section shall be restored on the date such remarriage is dissolved by death, annulment, or divorce' after `fifty-five';
(2) in subsection (c)(1)(B)(i), by inserting `, except that the entitlement of the former spouse to benefits under this section shall be restored on the date such remarriage is dissolved by death, annulment, or divorce' after `fifty-five years of age';
(3) by redesignating subsection (e) as subsection (f); and
(4) by adding after subsection (d) the following new subsection (e):
`(e) Notwithstanding subsection (c)(4)(A) of this section, the thirty-month application requirement for benefits under this section to be payable shall not apply in cases in which a former spouse's entitlement to such benefits is restored under subsection (b)(1) or (c)(1)(B) of this section.'.
(c) Health Benefits.--Section 16(c) of the Central Intelligence Agency Act of 1949 (50 U.S.C. 403a et seq.) is amended by adding after paragraph (2) the following new paragraph:
`(3)(A) A former spouse who is not eligible to enroll or to continue enrollment in a health benefits plan under this section solely because of remarriage before age fifty-five shall be restored to such eligibility on the date such remarriage is dissolved by death, annulment, or divorce.
`(B) A former spouse whose eligibility is restored under subparagraph (A) may, under regulations which the Director of the Office of Personnel Management shall prescribe, enroll in a health benefits plan if such former spouse--
`(i) was an individual referred to in paragraph (1) and was an individual covered under a benefits plan as a family member at any time during the 18-month period before the date of dissolution of the marriage to the Agency employee or annuitant; or
`(ii) was an individual referred to in paragraph (2) and was an individual covered under a benefits plan immediately before the remarriage ended the enrollment.'.
(d) Effective Date.--The amendments made by this section shall take effect as of October 1, 1990. No benefits provided pursuant to the amendments made by this section shall be payable with respect to any period before such date.
(e) Compliance With Budget Act.--Any new spending authority (within the meaning of section 401(c) of the Congressional Budget Act of 1974) provided pursuant to the amendments made by this section shall be effective for any fiscal year only to such extent or in such amounts as are provided in advance in appropriation Acts.
TITLE IV--GENERAL PROVISIONS
SEC. 401. INCREASE IN EMPLOYEE COMPENSATION AND BENEFITS AUTHORIZED BY LAW.
Appropriations authorized by this Act for salary, pay, retirement, and other benefits for federal employees may be increased by such additional or supplemental amounts as may be necessary for increases in such compensation or benefits authorized by law.
SEC. 402. RESTRICTION ON CONDUCT OF INTELLIGENCE ACTIVITIES.
The authorization of appropriations by this Act shall not be deemed to constitute authority for the conduct of any intelligence activity which is not otherwise authorized by the Constitution or laws of the United States.
SEC. 403. EXCEPTED POSITIONS FROM THE COMPETITIVE SERVICE.
Section 621 of the Department of Energy Organization Act (42 U.S.C. 7231) is amended by adding at the end thereof the following new subsection:
`(f) All positions in the Department which the Secretary determines are devoted to intelligence and intelligence-related activities of the United States Government are excepted from the competitive service, and the individuals who occupy such positions as of the date of enactment of this Act shall, while employed in such positions, be exempt from the competitive service.'.
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SEC. 404. INTELLIGENCE COMMUNITY CONTRACTING.
(a) Policy Concerning Products Produced in the United States: The Director of Central Intelligence shall direct that elements of the Intelligence Community, whenever compatible with the national security interests of the United States and consistent with the operational and security concerns related to the conduct of intelligence activities, and where fiscally sound, should award contracts in a manner that would maximize the procurement of products produced in the United States.
(b) Definition: For purposes of this section, the term `Intelligence Community' has the same meaning as set forth in paragraph 3.4(f) of Executive Order 12333, dated December 4, 1981, or successor orders.
SEC. 405. FURNISHING OF INTELLIGENCE INFORMATION TO THE SENATE AND HOUSE SELECT COMMITTEES ON INTELLIGENCE.
(a) Furnishing of Specific Information: In accordance with title V of the National Security Act of 1947, the head of any department or agency of the United States involved in any intelligence activities which may pertain to United States military personnel listed as prisoner, missing, or unaccounted for in military actions shall furnish any information or documents in the possession, custody, or control of the department or agency, or person paid by such department or agency, whenever requested by the Permanent Select Committee on Intelligence of the House of Representatives or the Select Committee on Intelligence of the Senate.
(b) Access by Committees and Members of Congress: In accordance with Senate Resolution 400, Ninety-Fourth Congress, and House Resolution 658, Ninety-Fifth Congress, the committees named in subsection (a) shall, upon request and under such regulations as the committees have prescribed to protect the classification of such information, make any information described in subsection (a) available to any other committee or any other Member of Congress and appropriately cleared staff.
TITLE V--DEPARTMENT OF DEFENSE INTELLIGENCE PROVISIONS
SEC. 501. REIMBURSEMENT RATE FOR CERTAIN AIRLIFT SERVICES.
(a) In General: Chapter 157 of title 10, United States Code, is amended by adding at the end the following new section:
`2642. Reimbursement rate for airlift services provided to Central Intelligence Agency
`(a) Authority.--The Secretary of Defense may authorize the use of the Department of Defense reimbursement rate for military airlift services provided by a component of the Department of Defense to the Central Intelligence Agency, if the Secretary of Defense determines that those military airlift services are provided for activities related to national security objectives.
`(b) Definition: In this section, the term `Department of Defense reimbursement rate' means the amount charged a component of the Department of Defense by another component of the Department of Defense.'.
(b) Clerical Amendment: The table of sections at the beginning of such chapter is amended by adding at the end the following new item:
`2642. Reimbursement rate for airlift services provided to Central Intelligence Agency.'.
SEC. 502. PUBLIC AVAILABILITY OF MAPS, ETC., PRODUCED BY DEFENSE MAPPING AGENCY.
(a) In General.--(1) Chapter 167 of title 10, United States Code, is amended by adding at the end the following new section:
`2796. Maps, charts, and geodetic data: public availability; exceptions
`(a) The Defense Mapping Agency shall offer for sale maps and charts at scales of 1:500,000 and smaller, except those withheld in accordance with subsection (b) or those specifically authorized under criteria established by Executive order to be kept secret in the interest of national defense or foreign policy and in fact properly classified pursuant to such Executive order.
`(b)(1) Notwithstanding any other provision of law, the Secretary of Defense may withhold from public disclosure any geodetic product in the possession of, or under the control of, the Department of Defense--
`(A) that was obtained or produced, or that contains information that was provided, pursuant to an international agreement that restricts disclosure of such product or information to government officials of the agreeing parties or that restricts use of such product or information to government purposes only;
`(B) that contains information that the Secretary of Defense has determined in writing would, if disclosed, reveal sources and methods used to obtain source material for production of the geodetic product; or
`(C) that contains information that the Director of the Defense Mapping Agency has determined in writing would, if disclosed, reveal military operational or contingency plans.
`(2) In this subsection, the term `geodetic product' means any map, chart, geodetic data, or related product.
`(c)(1) Regulations to implement this section (including any amendments to such regulations) shall be published in the Federal Register for public comment for a period of not less than 30 days before they take effect.
`(2) Regulations under this section shall address the conditions under which release of geodetic products authorized under subsection (b) to be withheld from public disclosure would be appropriate--
`(A) in the case of allies of the United States; and
`(B) in the case of qualified United States contractors (including contractors that are small business concerns) who need such products for use in the performance of contracts with the United States.'.
(2) The table of sections at the beginning of such chapter is amended by adding at the end the following new item:
`2796. Maps, charts, and geodetic data: public availability; exceptions.'.
(b) Deadline for Initial Regulations: Regulations to implement section 2796 of title 10, United States Code, as added by subsection (a), shall be published in the Federal Register for public comment in accordance with subsection (c) of that section not later than 90 days after the date of the enactment of this Act.
SEC. 503. POST-EMPLOYMENT ASSISTANCE FOR CERTAIN NSA EMPLOYEES.
The National Security Agency Act of 1959 (50 U.S.C. 402 note) is amended by adding at the end thereof the following new section:
`Sec. 17. (a) Notwithstanding any other law, the Director of the National Security Agency may use appropriated funds to assist employees who have been in sensitive positions who are found to be ineligible for continued access to Sensitive Compartmented Information and employment with the Agency, or whose employment has been terminated--
`(1) in finding and qualifying for subsequent employment,
`(2) in receiving treatment of medical or psychological disabilities, and
`(3) in providing necessary financial support during periods of unemployment,
if the Director determines that such assistance is essential to maintain the judgment and emotional stability of such employee and avoid circumstances that might lead to the unlawful disclosure of classified information to which such employee had access. Assistance provided under this section for an employee shall not be provided any longer than five years after the termination of the employment of the employee.
`(b) The Director of the National Security Agency shall report annually to the Committees on Appropriations of the Senate and House of Representatives, the Select Committee on Intelligence of the Senate, and the Permanent Select Committee on Intelligence of the House of Representatives with respect to any expenditure made pursuant to this section.'.
SEC. 504. USE OF COMMERCIAL ACTIVITIES AS COVER SUPPORT TO INTELLIGENCE COLLECTION ACTIVITIES OF THE DEPARTMENT OF DEFENSE.
(a) In General: Chapter 21 of title 10, United States Code, is amended--
(1) by inserting after the chapter heading the following:
`Subchapter
Sec.
`I. General Matters
421
`II. Intelligence Commercial Activities
431
(2) by adding at the end the following:
`431. Authority to engage in commercial activities as security for intelligence collection activities.
`432. Use, disposition, and auditing of funds.
`433. Relationship with other Federal laws.
`434. Reservation of defenses and immunities.
`435. Limitations.
`436. Regulations.
`437. Congressional oversight.
`431. Authority to engage in commercial activities as security for intelligence collection activities
`(a) Authority: The Secretary of Defense, subject to the provisions of this subchapter, may authorize the conduct of those commercial activities necessary to provide security for authorized intelligence collection activities abroad undertaken by the Department of Defense. No commercial activity may be initiated pursuant to this subchapter after December 31, 1995.
`(b) Interagency Coordination and Support.--Any such activity shall--
`(1) be coordinated with, and (where appropriate) be supported by, the Director of Central Intelligence; and
`(2) to the extent the activity takes place within the United States, be coordinated with, and (where appropriate) be supported by, the Director of the Federal Bureau of Investigation.
`(c) Definitions.--In this subchapter:
`(1) The term `commercial activities' means activities that are conducted in a manner consistent with prevailing commercial practices and includes--
`(A) the acquisition, use, sale, storage and disposal of goods and services;
`(B) entering into employment contracts and leases and other agreements for real and personal property;
`(C) depositing funds into and withdrawing funds from domestic and foreign commercial business or financial institutions;
`(D) acquiring licenses, registrations, permits, and insurance; and
`(E) establishing corporations, partnerships, and other legal entities.
`(2) The term `intelligence collection activities' means the collection of foreign intelligence and counterintelligence information.
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`432. Use, disposition, and auditing of funds
`(a) Use of Funds.--Funds generated by a commercial activity authorized pursuant to this subchapter may be used to offset necessary and reasonable expenses arising from that activity. Use of such funds for that purpose shall be kept to the minimum necessary to conduct the activity concerned in a secure manner. Any funds generated by the activity in excess of those required for that purpose shall be deposited, as often as may be practicable, into the Treasury as miscellaneous receipts.
`(b) Audits.--(1) The Secretary of Defense shall assign an organization within the Department of Defense to have auditing responsibility with respect to activities authorized under this subchapter.
`(2) That organization shall audit the use and disposition of funds generated by any commercial activity authorized under this subchapter not less often than annually. The results of all such audits shall be promptly reported to the intelligence committees (as defined in section 437(d) of this title).
`433. Relationship with other Federal laws
`(a) In General: Except as provided by subsection (b), a commercial activity conducted pursuant to this subchapter shall be carried out in accordance with applicable Federal law.
`(b) Authorization of Waivers When Necessary to Maintain Security.--(1) If the Secretary of Defense determines, in connection with a commercial activity authorized pursuant to section 431 of this title, that compliance with certain Federal laws or regulations pertaining to the management and administration of Federal agencies would create an unacceptable risk of compromise of an authorized intelligence activity, the Secretary may, to the extent necessary to prevent such compromise, waive compliance with such laws or regulations.
`(2) Any determination and waiver by the Secretary under paragraph (1) shall be made in writing and shall include a specification of the laws and regulations for which compliance by the commercial activity concerned is not required consistent with this section.
`(3) The authority of the Secretary under paragraph (1) may be delegated only to the Deputy Secretary of Defense, an Under Secretary of Defense, an Assistant Secretary of Defense, or a Secretary of a military department.
`(c) Federal Laws and Regulations.--For purposes of this section, Federal laws and regulations pertaining to the management and administration of Federal agencies are only those Federal laws and regulations pertaining to the following:
`(1) The receipt and use of appropriated and nonappropriated funds.
`(2) The acquisition or management of property or services.
`(3) Information disclosure, retention, and management.
`(4) The employment of personnel.
`(5) Payments for travel and housing.
`(6) The establishment of legal entities or government instrumentalities.
`(7) Foreign trade or financial transaction restrictions that would reveal the commercial activity as an activity of the United States Government.
`434. Reservation of defenses and immunities
`The submission to judicial proceedings in a State or other legal jurisdiction, in connection with a commercial activity undertaken pursuant to this subchapter, shall not constitute a waiver of the defenses and immunities of the United States.
`435. Limitations
`(a) Lawful Activities.--Nothing in this subchapter authorizes the conduct of any intelligence activity that is not otherwise authorized by law or Executive order.
`(b) Domestic Activities.--Personnel conducting commercial activity authorized by this subchapter may only engage in those activities in the United States to the extent necessary to support intelligence activities abroad.
`(c) Providing Goods and Services to the Department of Defense.--Commercial activity may not be undertaken within the United States for the purpose of providing goods and services to the Department of Defense, other than as may be necessary to provide security for the activities subject to this subchapter.
`(d) Notice to United States Persons.--(1) In carrying out a commercial activity authorized under this subchapter, the Secretary of Defense may not permit an entity engaged in such activity to employ a United States person in an operational, managerial, or supervisory position, and may not assign or detail a United States person to perform operational, managerial, or supervisory duties for such an entity, unless that person is informed in advance of the intelligence security purpose of that activity.
`(2) In this subsection, the term `United States person' means an individual who is a citizen of the United States or an alien lawfully admitted to the United States for permanent residence.
`436. Regulations
`The Secretary of Defense shall prescribe regulations to implement the authority provided in this subchapter. Such regulations shall be consistent with this subchapter and shall at a minimum--
`(1) specify all elements of the Department of Defense who are authorized to engage in commercial activities pursuant to this subchapter;
`(2) require the personal approval of the Secretary or Deputy Secretary of Defense for all sensitive activities to be authorized pursuant to this subchapter;
`(3) specify all officials who are authorized to grant waivers of laws or regulations pursuant to section 433(b) of this title, or to approve the establishment or conduct of commercial activities pursuant to this subchapter;
`(4) designate a single office within the Defense Intelligence Agency to be responsible for the management and supervision of all activities authorized under this subchapter;
`(5) require that each commercial activity proposed to be authorized under this subchapter be subject to appropriate legal review before the activity is authorized; and
`(6) provide for appropriate internal audit controls and oversight for such activities.
`437. Congressional oversight
`(a) Proposed Regulations.--Copies of regulations proposed to be prescribed under section 436 of this title (including any proposed revision to such regulations) shall be submitted to the intelligence committees not less than 30 days before they take effect.
`(b) Current Information.--Consistent with title V of the National Security Act of 1947 (50 U.S.C. 413 et seq.), the Secretary of Defense shall ensure that the intelligence committees are kept fully and currently informed of actions taken pursuant to this subchapter, including any significant anticipated activity to be authorized pursuant to this subchapter. The Secretary shall promptly notify the appropriate committees of Congress whenever a corporation, partnership, or other legal entity is established pursuant to this subchapter.
`(c) Annual Report.--Not later than January 15 of each year, the Secretary shall submit to the appropriate committees of Congress a report on all commercial activities authorized under this subchapter that were undertaken during the previous fiscal year. Such report shall include (with respect to the fiscal year covered by the report)--
`(1) a description of any exercise of the authority provided by section 433(b) of this title;
`(2) a description of any expenditure of funds made pursuant to this subchapter (whether from appropriated or non-appropriated funds); and
`(3) a description of any actions taken with respect to audits conducted pursuant to section 432 of this title to implement recommendations or correct deficiencies identified in such audits.
`(d) Intelligence Committees Defined.--In this section, the term `intelligence committees' means the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives.'.
(b) Effective Date.--The Secretary of Defense may not authorize any activity under section 431 of title 10, United States Code, as added by subsection (a), until the later of--
(1) the end of the 90-day period beginning on the date of the enactment of this Act; or
(2) the effective date of regulations first prescribed under section 436 of such title, as added by subsection (a).
SEC. 505. DISCLOSURE TO MEMBERS OF CONGRESS OF A CLASSIFIED DEFENSE INTELLIGENCE AGENCY REPORT RELATING TO MILITARY PERSONNEL LISTED AS PRISONER, MISSING, OR UNACCOUNTED FOR.
The Secretary of Defense shall provide to any Member of Congress, upon request, full and complete access to the classified report of the Defense Intelligence Agency commonly known as the Tighe Report, relating to efforts by the Special Office for Prisoners of War/Missing in Action of the Defense Intelligence Agency to fully account for United States military personnel listed as prisoner, missing, or unaccounted for in military actions. The Secretary may withhold from disclosure under the preceding sentence any material that in the judgment of the Secretary would compromise sources and methods of intelligence.
TITLE VI--OVERSIGHT OF INTELLIGENCE ACTIVITIES
SEC. 601. REPEAL OF HUGHES-RYAN AMENDMENT.
Section 662 of the Foreign Assistance Act of 1961 (22 U.S.C. 2422) is repealed.
SEC. 602. OVERSIGHT OF INTELLIGENCE ACTIVITIES.
(a) In General: Title V of the National Security Act of 1947 is amended--
(1) by redesignating sections 502 and 503 as sections 504 and 505, respectively; and
(2) by striking out section 501 (50 U.S.C. 413) and inserting in lieu thereof the following new sections:
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`(1) keep the intelligence committees fully and currently informed of all intelligence activities, other than a covert action (as defined in section 503(e)), which are the responsibility of, are engaged in by, or are carried out for or on behalf of, any department, agency, or entity of the United States Government, including any significant anticipated intelligence activity and any significant intelligence failure; and
`(2) furnish the intelligence committees any information or material concerning intelligence activities, other than covert actions, which is within their custody or control, and which is requested by either of the intelligence committees in order to carry out its authorized responsibilities.
`(1) Each finding shall be in writing, unless immediate action by the United States is required and time does not permit the preparation of a written finding, in which case a written record of the President's decision shall be contemporaneously made and shall be reduced to a written finding as soon as possible but in no event more than 48 hours after the decision is made.
`(2) Except as permitted by paragraph (1), a finding may not authorize or sanction a covert action, or any aspect of any such action, which already has occurred.
`(3) Each finding shall specify each department, agency, or entity of the United States Government authorized to fund or otherwise participate in any significant way in such action. Any employee, contractor, or contract agent of a department, agency, or entity of the United States Government other than the Central Intelligence Agency directed to participate in any way in a covert action shall be subject either to the policies and regulations of the Central Intelligence Agency, or to written policies or regulations adopted by such department, agency, or entity, to govern such participation.
`(4) Each finding shall specify whether it is contemplated that any third party which is not an element of, or a contractor or contract agent of, the United States Government, or is not otherwise subject to United States Government policies and regulations, will be used to fund or otherwise participate in any significant way in the covert action concerned, or be used to undertake the covert action concerned on behalf of the United States.
`(5) A finding may not authorize any action that would violate the Constitution or any statute of the United States.
`(b) To the extent consistent with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters, the Director of Central Intelligence and the heads of all departments, agencies, and entities of the United States Government involved in a covert action--
`(1) shall keep the intelligence committees fully and currently informed of all covert actions which are the responsibility of, are engaged in by, or are carried out for or on behalf of, any department, agency, or entity of the United States Government, including significant failures; and
`(2) shall furnish to the intelligence committees any information or material concerning covert actions which is in the possession, custody, or control of any department, agency, or entity of the United States Government and which is requested by either of the intelligence committees in order to carry out its authorized responsibilities.
`(c)(1) The President shall ensure that any finding approved pursuant to subsection (a) shall be reported to the intelligence committees as soon as possible after such approval and before the initiation of the covert action authorized by the finding, except as otherwise provided in paragraph (2) and paragraph (3).
`(2) If the President determines that it is essential to limit access to the finding to meet extraordinary circumstances affecting vital interests of the United States, the finding may be reported to the chairmen and ranking minority members of the intelligence committees, the Speaker and minority leader of the House of Representatives, the majority and minority leaders of the Senate, and such other member or members of the congressional leadership as may be included by the President.
`(3) Whenever a finding is not reported pursuant to paragraph (1) or (2) of this section, the President shall fully inform the intelligence committees in a timely fashion and shall provide a statement of the reasons for not giving prior notice.
`(4) In a case under paragraph (1), (2), or (3), a copy of the finding, signed by the President, shall be provided to the chairman of each intelligence committee. When access to a finding is limited to the Members of Congress specified in paragraph (2), a statement of the reasons for limiting such access shall also be provided.
`(d) The President shall ensure that the intelligence committees, or, if applicable, the Members of Congress specified in subsection (c)(2), are notified of any significant change in a previously approved covert action, or any significant undertaking pursuant to a previously approved finding, in the same manner as findings are reported pursuant to subsection (c).
`(e) As used in this title, the term `covert action' means an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly, but does not include--
`(1) activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional activities to improve or maintain the operational security of United States Government programs, or administrative activities;
`(2) traditional diplomatic or military activities or routine support to such activities;
`(3) traditional law enforcement activities conducted by United States Government law enforcement agencies or routine support to such activities; or
`(4) activities to provide routine support to the overt activities (other than activities described in paragraph (1), (2), or (3)) of other United States Government agencies abroad.
`(f) No covert action may be conducted which is intended to influence United States political processes, public opinion, policies, or media.'.
(b) Clerical Amendment: The table of contents in the first section of the National Security Act of 1947 is amended by striking out the items relating to sections 501, 502, and 503 and inserting in lieu thereof the following:
`Sec. 501. General congressional oversight provisions.
`Sec. 502. Reporting of intelligence activities other than covert actions.
`Sec. 503. Presidential approval and reporting of covert actions.
`Sec. 504. Funding of intelligence activities.
`Sec. 505. Notice to Congress of certain transfers of defense articles and defense services.'.
(c) Conforming Amendments: (1) Section 504 of the National Security Act of 1947, as redesignated by subsection (a), is amended in subsection (a)(2) by striking out `section 501' and inserting in lieu thereof `section 503'.
(2) Section 505 of such Act (50 U.S.C. 415), as redesignated by subsection (a), is amended in subsection (a)(1) by striking out `section 501 of this Act' and inserting in lieu thereof `this title'.
(3) Sections 167(g) and 2547(c) of title 10, United States Code, are amended--
(A) by striking out `would require--' and all that follows through `a notice' and inserting in lieu thereof `would require a notice'; and
(B) by striking out `section 501(a)(1) of the National Security Act of 1947 (50 U.S.C. 413)' and inserting in lieu thereof `title V of the National Security Act of 1947 (50 U.S.C. 413 et seq.)'.
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SEC. 603. LIMITATIONS ON USE OF FUNDS.
Section 504 of the National Security Act of 1947 (50 U.S.C. 414), as redesignated by section 602(a) and amended by section 602(c), is further amended--
(1) by redesignating subsection (c) as subsection (e); and
(2) by inserting after subsection (b) the following new subsections:
`(c) No funds appropriated for, or otherwise available to, any department, agency, or entity of the United States Government may be expended, or may be directed to be expended, for any covert action, as defined in section 503(e), unless and until a Presidential finding required by subsection (a) of section 503 has been signed or otherwise issued in accordance with that subsection.
`(d)(1) Except as otherwise specifically provided by law, funds available to an intelligence agency that are not appropriated funds may be obligated or expended for an intelligence or intelligence-related activity only if those funds are used for activities reported to the appropriate congressional committees pursuant to procedures which identify--
`(A) the types of activities for which nonappropriated funds may be expended; and
`(B) the circumstances under which an activity must be reported as a significant anticipated intelligence activity before such funds can be expended.
`(2) Procedures for purposes of paragraph (1) shall be jointly agreed upon by the intelligence committees and, as appropriate, the Director of Central Intelligence or the Secretary of Defense.'.
SEC. 604. TRANSFERS OF DEFENSE ARTICLES OR SERVICES.
Section 505 of the National Security Act of 1947 (50 U.S.C. 415), as redesignated by section 602(a), is amended by inserting `, or the anticipated transfer in any fiscal year of any aggregation of defense articles or defense services,' in subsection (a)(1) after `service'.
And the Senate agree to the same.
From the Select Committee on Intelligence:
DAVE MCCURDY,
BARBARA KENNELLY,
DAN GLICKMAN,
NICHOLAS MAVROULES,
BILL RICHARDSON,
STEPHEN SOLARZ,
NORMAN D. DICKS,
RONALD V. DELLUMS,
DAVID BONIOR,
MARTIN OLAV SABO,
WAYNE OWENS,
BUD SHUSTER,
LARRY COMBEST,
DOUG BEREUTER,
R.K. DORNAN,
BILL YOUNG,
DAVID O'B. MARTIN,
GEORGE W. GEKAS,
From the Committee on Armed Services for the consideration of Defense Tactical Intelligence and related activities and section 505 of both the House bill and the Senate amendment:
LES ASPIN,
IKE SKELTON,
WILLIAM L. DICKINSON,
Managers on the Part of the House.
From the Select Committee on Intelligence:
DAVID L. BOREN,
SAM NUNN,
FRITZ HOLLINGS,
BILL BRADLEY,
ALAN CRANSTON,
DENNIS DECONCINI,
HOWARD M. METZENBAUM,
JOHN GLENN,
FRANK H. MURKOWSKI,
JOHN WARNER,
ALFONSE D'AMATO,
JOHN C. DANFORTH,
WARREN RUDMAN,
SLADE GORTON,
JOHN H. CHAFEE,
From the Committee on Armed Services:
J.J. EXON,
STROM THURMOND,
Managers on the Part of the Senate.
The managers on the part of the House and the Senate at the conference on the disagreeing votes of the two Houses on the amendment of the Senate to the bill (H.R. 1455) to authorize appropriations for fiscal year 1991 for intelligence activities of the United States Government, the Intelligence Community Staff, and the Central Intelligence Agency Retirement and Disability System, and for other purposes, submit the following joint statement to the House and the Senate in explanation of the effect of the action agreed upon by the managers and recommended in the accompanying conference report:
The Senate amendment struck out all of the House bill after the enacting clause and inserted a substitute text.
The House recedes from its disagreement to the amendment of the Senate with an amendment which is a substitute for the House bill and the Senate amendment. The differences between the House bill, the Senate amendment, and the substitute agreed to in conference are noted below, except for clerical corrections, conforming changes made necessary by agreements reached by the conferees, and minor drafting and clarifying changes.
Due to the classified nature of intelligence and intelligence-related activities, a classified annex to this joint explanatory statement serves as a guide to the classified Schedule of Authorizations by providing a detailed description of program and budget authority contained therein as reported by the Committee of Conference.
The actions of the conferees on all matters at difference between the two Houses are shown below or in the classified annex to this joint statement.
A special conference group resolved differences between the House and Senate regarding DoD Intelligence Related Activities, referred to as Tactical Intelligence and Related Activities (TIARA). This special conference group was necessitated by the differing committee jurisdictions of the intelligence committees of the House and the Senate. This special conference group consisted of members of the House and Senate Committees on Armed Services and the House Permanent Select Committee on Intelligence.
The amounts listed for TIARA programs represent the funding levels jointly agreed to by the TIARA conferees and the House and Senate conferees for the National Defense Authorization Act, 1991. In addition, the TIARA conferees have agreed on the authorization level, as listed in the classified Schedule of Authorizations, the joint statement, and its classified annex, for TIARA programs which fall into the appropriation category of Military Pay.
Sections 101 and 102 of the conference report authorize appropriations for the intelligence and intelligence-related activities of the United States Government for fiscal year 1991 and establish personnel ceilings applicable to such activities.
Section 103 of the conference report authorizes the Director of Central Intelligence to make adjustments in personnel ceilings in certain circumstances. Section 103 of the conference report is identical to section 103 of the House bill and section 103 of the Senate amendment.
The conferees emphasize that the authority conveyed by section 103 is not intended to permit the wholesale raising of personnel strength in each or any intelligence component. Rather, the section provides the Director of Central Intelligence with flexibility to adjust personnel levels temporarily for contingencies and for overages caused by an imbalance between hiring of new employees and attrition of current employees from retirement, resignation, and so forth. The conferees do not expect the Director of Central Intelligence to allow heads of intelligence components to plan to exceed personnel levels set in the Schedule of Authorizations except for the satisfaction of clearly identified hiring needs which are consistent with the authorization of personnel strengths in this bill. In no case is this authority to be used to provide for positions denied by this Act.
Title II of the conference report authorizes appropriations and personnel end-strengths for fiscal year 1991 for the Intelligence Community Staff and provides for administration of the staff during fiscal year 1991 in the same manner as the Central Intelligence Agency. The conference report, as did the House bill and the Senate amendment, authorizes $27,900,000 and 240 personnel.
Included in the funds authorized for the Intelligence Community Staff are $6,580,000 for the Security Evaluation Office (SEO). In the conference report on the FY 1990 Intelligence Authorization Act (see pages 21-22. H. Rept. 101-367, 101st Congress, 1st Session), the conferees expressed concern that for various reasons the SEO had failed to focus the unique capabilities of the intelligence community, as expected by the committees, on the problems of embassy security. The conference report set forth in detail what the conferees believed the organizational relationships and functions of the SEO should be to achieve the role envisioned for it.
The conferees on this year's bill continue to support the language in the fiscal year 1990 conference report on the SEO.
Section 301 of the conference report authorizes appropriations for fiscal year 1991 of $164,600,000 for the CIA Retirement and Disability Fund. Both the House bill (section 301) and the Senate amendment (section 301) authorized $164,600,000.
Section 302 of the conference report amends the Central Intelligence Agency Retirement Act of 1964 for Certain Employees to make clear that the five years of marriage spent outside the United States required to qualify for former spouse status must have occurred during periods of the participant's service with the CIA. Section 302 is identical to section 302 of the House bill and section 302 of the Senate amendment.
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Section 303 amends the Central Intelligence Agency Retirement Act of 1964 for Certain Employees to eliminate the statutory provisions requiring a 15-year career review and a re-election option for CIARDS and FERS Special Category participants to remain under CIARDS or in FERS Special Category status for the duration of their CIA service. Section 303 is identical to section 303 of the House bill and section 303 of the Senate amendment.
Section 304 of the conference report amends the Central Intelligence Agency Retirement Act of 1964 for Certain Employees to permit a retiree under CIARDS who failed to elect a survivor benefit for a prior spouse to elect to provide a survivor benefit upon remarriage after retirement. Section 304 is identical to section 304 of the House bill and, except for a technical drafting difference, identical to section 304 of the Senate amendment.
Section 305 of the conference report amends the Central Intelligence Agency Retirement Act of 1964 for Certain Employees to lower, from 60 to 55, the age before which an entitlement to retirement benefits, in the case of former spouses, and survivor benefits, in the case of surviving spouses and former spouses, shall terminate because of the remarriage of the former spouse or surviving spouse. Section 305 is identical to section 305 of the House bill and section 305 of the Senate amendment.
Section 306 amends the Central Intelligence Agency Retirement Act of 1964 for Certain Employees to require a surviving spouse, who marries a retiree and becomes entitled to a CIARDS survivor annuity, to choose between such annuity and any other federal government survivor annuity to which he or she may be entitled. Section 306 is identical to section 306 of the House bill and to section 306 of the Senate amendment.
Section 307 of the conference report amends the Central Intelligence Agency Retirement Act of 1964 for Certain Employees to restore certain survivor, retirement, and health benefits to former spouses whose benefits were terminated because of remarriage before age 55 and whose remarriage was later dissolved by death, divorce, or annulment. Section 307 is identical to section 307 of the House bill and to section 307 of the Senate amendment.
Section 401 of the conference report provides that appropriations authorized by the conference report for salary, pay, retirement and other benefits for Federal employees may be increased by such additional or supplemental amounts as may be necessary for increases in such compensation or benefits authorized by law. Section 401 is identical to section 401 of the House bill and to section 401 of the Senate amendment.
Section 402 of the conference report provides that the authorization of appropriations by the conference report shall not be deemed to constitute authority for the conduct of any intelligence activity which is not otherwise authorized by the Constitution or laws of the United States. Section 402 is identical to section 402 of the House bill and to section 402 of the Senate amendment.
Section 403 of the conference report amends the Department of Energy Reorganization Act to provide that all positions within the Department which are determined by the Secretary to be devoted to intelligence and intelligence-related activities are excepted from the competitive service. Section 403 is identical to section 403 of the House bill and section 404 of the Senate amendment.
Section 404 of the conference report requires the Director of Central Intelligence to direct that, whenever compatible with the national security interests of the United States and consistent with the operational and security concerns related to the conduct of intelligence activities, and where fiscally sound, elements of the Intelligence Community should award contracts in a manner that would maximize the procurement of products produced in the United States. The conferees note that the use of a differential in evaluating the bids of domestic and foreign firms is not inconsistent with the meaning of the term `fiscally sound.' Section 404 is identical to section 404 of the House bill and section 405 of the Senate amendment.
Section 405 of the Senate amendment requires the head of any department or agency of the United States involved in any intelligence activities which may pertain to United States military personnel listed as prisoner, missing, or unaccounted for in military actions to provide to the Senate or House Select Committee on Intelligence, upon request, any documents or information in the possession, custody or control of the department or agency, or a person paid by such department or agency. The section also directs the intelligence committees of the Senate and House consistent with applicable Senate and House resolutions and committee regulations, to make information requested by the committees on United States military personnel listed as prisoner, missing, or unaccounted for in military actions available, upon request, to any other committee or any other Member of Congress and appropriately cleared staff.
The House bill did not contain a similar provision.
The House recedes.
Section 501 of the conference report authorizes the Secretary of Defense to permit a component of the Department to charge the CIA the same rate for military airlift services as would be charged another component of the Department if the Secretary determines that such services are provided for activities related to national security objectives. Section 501 is identical to section 501 of the House bill and to section 501 of the Senate amendment.
Section 502 of the conference report amends chapter 167 of title 10 of the United States Code to (a) authorize withholding from public disclosure unclassified maps, charts and related geodetic data produced by the Defense Mapping Agency, and (2) provide for the public sale by the Defense Mapping Agency of unclassified maps and charts of scales 1:500,000 and smaller. Section 502 is identical to section 502 of the House bill and to section 502 of the Senate amendment.
Section 503 of the conference report amends the National Security Agency Act of 1959 to provide discretionary authority to the Director of the National Security Agency to utilize appropriated funds to provide assistance to former National Security Agency employees for up to five years after leaving such employment if the Director determines such assistance is essential to avoid circumstances that might lead to the unlawful disclosure of classified information to which the employee to be assisted had access. Section 503 is identical to section 503 of the House bill and to section 503 of the Senate Amendment.
Section 504 of the conference report adds a new subchapter II to chapter 21 of title 10 of the United States Code empowering the Secretary of Defense to authorize the conduct of commerical activities necessary to provide sufficient security for authorized intelligence collection activities undertaken abroad by the Department of Defense. Section 504 is identical to section 504 of the House bill and, except for a technical drafting difference, to section 504 of the Senate amendment.
Section 505 requires the Secretary of Defense to provide to Member of Congress a classified report prepared for the Director of the Defense Intelligence Agency concerning military personnel listed as prisoner, missing, or unaccounted for. Section 505 is identical to section 505 of the House bill, and to section 505 of the Senate amendment.
Sections 601-604 of the Conference report contain significant provisions regarding congressional oversight of intelligence activities, including requirements relating to the authorization of covert actions by the President and the reporting of covert actions to the Congress. These provisions would for the first time in statute impose the following requirements:
A finding must be in writing.
A finding may not retroactively authorize covert activities which have already occurred.
The President must determine that the covert action is necessary to support identifiable foreign policy objectives of the United States.
A finding must specify all government agencies involved and whether any third party will be involved.
A finding may not authorize any action intended to influence United States political processes, public opinion, policies or media.
A finding may not authorize any action which violates the Constitution of the United States or any statutes of the United States.
Notification to the congressional leaders specified in the bill must be followed by submission of the written finding to the chairmen of the intelligence committees.
The intelligence committees must be informed of significant changes in covert actions.
No funds may be spent by any department, agency or entity of the Executive Branch on a covert action until there has been a signed, written finding.
Sections 601 through 604 are substantially similar to sections 601 through 604 in title VI of the Senate amendment, with technical and drafting changes and the substantive changes noted below. The House bill did not contain similar provisions.
The conferees note that sections 601-604 are based on legislation (S. 1721 and H.R. 3822) which was reported by the intelligence committees in the 100th Congress (S. Rept. 100-276; H. Rept. 100-793, parts 1 and 2) but, although passed by the Senate, did not reach the House floor.
Current law, which has been in effect since 1980, requires that the President fully inform the intelligence committees `in a timely fashion' of covert actions for which prior notice was not given. The executive branch has asserted that the President's constitutional authorities and/or existing law (section 501(b) of the National Security Act of 1947) permit the President to withhold notice from the committees for as long as he deems necessary. Such arguments were made most strongly in a Memorandum to the Attorney General, dated December 17, 1986, from Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel, Department of Justice, entitled `The President's Compliance with the `Timely Notification' Requirement of Section 501(b) of the National Security Act' (reprinted in Hearings before the Select Committee on Intelligence, `Oversight Legislation,' S. HRG. 100-623, pp. 126-152), which concluded that the President has `virtually unfettered discretion to choose the right moment for making the required notification.'
Both intelligence committees expressed strong disagreement with this legal opinion when it came to light, believing it to be clearly inconsistent with the understandings which underlay the 1980 Act.
In 1989, the Senate Select Committee on Intelligence asked the newly-installed Bush Administration to reject the Cooper memorandum and to provide explicit assurances with respect to how the President intended to comply with the requirement for `timely notice,' contained in section 501(b). A similar request was made by the House Permanent Select Committee on Intelligence in 1990.
President Bush responded to these requests with similar letters to both committees. The text of the letter to the Chairman of the House Committee is reprinted here in full:
Dear Mr. Chairman: I am aware of your concerns regarding the provision of notice to Congress of covert action and the December 17, 1986 opinion of the Office of Legal Counsel of the Department of Justice, with which you strongly disagree primarily because of the statement that `a number of factors combine to support the conclusion that the `timely notice' language should be read to leave the President with virtually unfettered discretion to choose the right moment for making the required notification.'
I can assure you that I intend to provide notice to Congress of covert action in a fashion sensitive to these concerns. The statute requires prior notice or, when no prior notice is given, timely notice. I anticipate that in almost all instances, prior notice will be possible. In those rare instances where prior notice is not provided, I anticipate that notice will be provided within a few days. Any withholding beyond this period will be based upon my assertion of authorities granted this office by the Constitution.
I am sending a similar letter to Congressman Hyde.
Sincerely,
George Bush.
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In re-enacting the phrase `in a timely fashion,' which is the formulation contained in existing law, the conferees wish to emphasize and make absolutely clear that such action should not in any way be taken to imply agreement or acquiescence in the Cooper memorandum insofar as such memorandum interprets the `timely fashion' phrase as it exists in current law.
At the same time, however, it is the intent of the conferees that this provision be interpreted in a manner consistent with whatever authority the Constitution may provide. If the Constitution in fact provides the President authority to withhold notice of covert actions for longer periods, then the conferees' interpretation cannot be legally binding upon the President. In his letter to the committees, reprinted above, the President asserts that the Constitution, in his view, does provide such authority.
Neither committee has ever accepted this assertion. The conferees recognize that this is a question that neither they nor the Congress itself can resolve. Congress cannot diminsh by statute powers that are granted by the Constitution. Nor can either the legislative or executive branch authoritatively interpret the Constitution, which is the exclusive province of the judicial branch.
Congress is, however, free to interpret the meaning of statutes which it enacts. While the conferees recognize that they cannot foreclose by statute the possibility that the President may assert a constitutional basis for withholding notice of covert actions for periods longer than `a few days,' they believe that the President's stated intention to act under the `timely notice' requirement of existing law to make a notification `within a few days' is the appropriate manner to proceed under this provision, and is consistent with what the conferees believe is its meaning and intent.
The conferees note that the current law, restated in the conference report, already permits the President, in extraordinary circumstances, to afford the requisite notice to the leadership of Congress and the chairmen and ranking minority members of the intelligence committees rather than to the two committees. The conferees intend that this provision be utilized when the President is faced with a covert action of such extraordinary sensitivity or risk to life that knowledge of the covert action should be restricted to as few individuals as possible. In such cases it is expected that knowledge of the action will be similarly limited within the executive branch.
The conferees further note that in defining for the first time in statute the term `covert action' they do not intend that the new definition exclude any activity which heretofore has been understood to be a covert action, nor to include any activity not heretofore understood to be a covert action The new definition is meant to clarify the understanding of intelligence activities that require presidential approval and reporting to Congress; not to relax or go beyond previous understandings.
The activity of each component of the United States Government that will be involved in a particular area must be examined to determine if the activity of that component is a covert action. It may be that an activity which is not a covert activity may be supported by a component of the government, for example, an intelligence component, whose participation would constitute a covert action. Thus, while an operation conducted by the uniformed military forces may not be a covert action, the unattributable efforts of the CIA to support that activity might be a covert action.
The definition of `covert action' applies only to activities in which the role of the United States Government is not intended to be apparent or acknowledged publicly. Therefore, the definition of `covert action' does not apply to acknowledged United States government activities which are intended to misled a potential adversary as to the true nature of United States military capabilities, intentions, or operations. Likewise, the definition of `covert action' does not apply to acknowledged United States government activities which are intended to influence public opinion or governmental attitudes in foreign countries. In both cases, the activity is not a `covert action' because the United States government acknowledges the activity as being an activity of the United States government. Concealment or misrepresentation of the true nature of an acknowledged United States activity does not make it a `covert action' even if the concealment or misrepresentation is intended to influence political, economic, or military conditions abroad. Similarly, acknowledged United States activities intended to influence public opinion or governmental attitudes in foreign countries are not `covert action,' even if specific objectives of the activities are concealed. The conferees agree that the definition of `covert action' does not apply unless the fact of United States government involvement in the activity is itself not intended to be acknowledged.
In addition, certain counterintelligence activities which are intended to influence military conditions abroad do not fall within the definition of `covert action.' The definition of `covert action' expressly exempts `traditional counterintelligence activities,' which include double agent operations and operations to frustrate intelligence collections activities by hostile foreign powers. The ordinary objectives of such traditional counterintelligence activities might include influencing the intelligence gathered by foreign powers regarding specific United States military capabilities, intentions, or operations. The conferees agree that the fact that such activities may have a substantial influence on the military plans and programs of certain foreign powers does not make them `covert action.' However, there is a line beyond which such activities could, at least in theory, be undertaken to effect major changes in the national defense policies of such foreign powers or to provoke significant military responses by such foreign powers. If such activities were to be undertaken for such purposes, they would exceed the ordinary objectives of traditional counterintelligence activities and would constitute `covert action.' The conferees agree that none of the counterintelligence activities which the Department of Defense has reported to the intelligence committees constitute covert action within the meaning of this definition.
The conferees note that `traditional military activities' and `routine support' to such activities do not fall within the definition of covert action. It is the intent of the conferees that `traditional military activities' include activities by military personnel under the direction and control of a United States military commander (whether or not the U.S. sponsorship of such activities is apparent or later to be acknowledged) preceding and related to hostilities which are either anticipated (meaning approval has been given by the National Command Authorities for the activities and for operational planning for hostilities) to involve U.S. military forces, or where such hostilities involving United States military forces are ongoing, and, where the fact of the U.S. role in the overall operation is apparent or to be acknowledged publicly. In this regard, the conferees intend to draw a line between activities that are and are not under the direction and control of the military commander. Activities that are not under the direction and control of a military commander should not be considered as `traditional military activities.'
Whether or not activities undertaken well in advance of a possible or eventual U.S. military operation constitute `covert action' will depend in most cases upon whether they constitute `routine support' to such an operation, as explained in the report accompanying the Senate bill.
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The report of the Senate Intelligence Committee accompanying S. 2834 (S. Rept. 101-358), the first version of the fiscal year 1991 intelligence authorization bill, indicated that a major review of Department of Defense intelligence priorities, resources, organizations, roles, and functions should be undertaken. The report further directed the Secretary of Defense and, where appropriate, the Director of Central Intelligence (DCI) to review all Department of Defense intelligence and intelligence-related activities and, to the maximum degree possible, consoldiate or begin consolidating all disparate or redundant functions, programs, and entities and, concurrently, to strengthen joint intelligence organizations and operations. The Senate report called on the Secretary of Defense and the DCI to report on their efforts to examine these issues by no later than March 1, 1991, and indicated that the Committee intended to initiate studies and hold hearings to monitor the progress of these efforts.
Subsequent to the issuance of the Senate Intelligence Committee report, the Senate Armed Services Committee included a section in its version of the defense authorization bill for fiscal year 1991 entitled `Intelligence Priorities and Reorganization' (Section 904) which directs the Secretary of Defense, together with the Director of Central Intelligence, to conduct a joint review of all intelligence and intelligence-related activities in the Tactical Intelligence and Related activities (TIARA) program and the National Foreign Intelligence Program (NFIP). The Senate bill also required the number of personnel assigned or detailed in aggregate to NFIP programs and related TIARA programs to be reduced by not less than five percent during each of fiscal years 1992 through 1996.
In the defense authorization conference, the House receded to the Senate with regard to the Section 907 (formerly Section 904) provisions. However, the conferees from the Permanent Select Committee on Intelligence strongly disagreed with the action taken by the House conferees on this matter. For that reason, two conferees from the Intelligence Committee signed the conference report noting an exception to Section 907. The third Intelligence Committee conferee withheld his signature from the conference report, at least in part because of his concern with Section 907.
In the report which accompanied its version of the initial Fiscal Year 1991 intelligence authorization bill, H.R. 5422 (H. Rept. 101-725), the Permanent Select Committee on Intelligence acknowledged that intelligence was in a state of transition and that budgets in the coming years would not be able to support the level of growth that the intellgence community had enjoyed in the recent past. However, the Committee indicated that it was imperative that sufficient resources be made available to ensure that the intelligence community can fulfill critical requirements so that policymakers will have the kind of information vital to protecting our national security. At the same time, the Committee urged the Director of Central Intelligence and the Secretary of Defense to ensure a coordinated, comprehensive, baseline review of functional and organizational priorities, and a strong management infrastructure committed to prioritizing resources and requirements.
The conferees believe that redundancy within the intelligence community exists, and that joint intelligence organizations within the Department of Defense should be strengthened. Indeed, the Administration has reached the same conclusions. The Secretary of Defense mandated that a study be conducted by the Assistant Secretary of Defense for Command, Control, Communications, and Intelligence (C3I) to review the very concerns stated in the report of the Senate Intelligence Committee. The results of this study have been received and are being reviewed by both committees, and the conferees anticipate that some organizational restructuring and personnel reductions based on a fresh assessment of requirements, priorities, structure and available resources, will follow from the study effort. Some of the information in the study was used by the intelligence committees as a part of their fiscal year 1992 budget review. However, that review ranged more broadly, not only encompassing the entities an resources of Department of Defense intelligence, but also including elements of the NFIP which do not lie within the ambit of defense intelligence.
The conferees are aware that the intelligence budget, much like the defense budget, will be constrained in coming years. However, the conferees reserve judgment on how large a reduction may be required. The conferees do not believe that a 25 percent reduction in defense intelligence personnel should be deemed appropriate in the absence of a thorough review of resources, priorities, and requirements. Without that review, the intelligence committees lack the information needed to determine proper personnel levels. The conferees therefore do not feel that Administration planning for fiscal years beyond 1991 should necessarily, at this time, be based on an assumption of a 25 percent reduction in personnel. The conferees note that both intelligence committees intend to conduct studies and hearings on these matters as part of future budget reviews. The conferees further note that the fiscal year 1992 and subsequent authorization bills will include personnel levels that reflect such reviews. The conferees believe that the purpose of the mandated personnel reduction provision in the fiscal year 1991 defense authorization bill was to set goals to be met only after the conclusion of the Congressional budget process, and that the Administration is not required by the provision to meet these reductions in any budget submission nor accompanying multiyear defense plan. In fact, the conference report on the FY 91 defense authorization bill states that `nothing in this provision [section 907] would preclude the President from submitting whatever budget proposal in this area he deems appropriate.'
Finally, the conferees applaud the professional efforts of the defense intelligence community which, over the last ten years, has been rebuilt from the drastically reduced state to which it had declined in the 1970s. The conferees intend to be supportive of measures to allocate resources resulting from any reorganization of defense intelligence to cover new and emerging requirements, such as economic competitiveness, counternarcotics, counterterrorism, and the proliferation of biological, chemical and nuclear weapons throughout the world, but expect that it will be possible to provide some of the resources for these needs from departments and elements previously focused on the Soviet Union and Eastern Europe.
Treatment of certain alien employees in Hong Kong
Section 403 of the Senate amendment authorized the Director of Central Intelligence to apply any unused portion of the annual allocation provided by section 7 of the CIA Act of 1949, for fiscal years 1991 through 1996, to permit the entry into the United States of employees of the Foreign Broadcast Information Service in Hong Kong, and their dependents, prior to the end of fiscal year 1997. The House bill did not contain a similar provision. The conferees agreed that the inclusion of Section 403 was unnecessary because the Immigration Act of 1990 had provided a similar grant of authority to the Director of Central Intelligence.
Drug testing
Title VI of the House bill required the Director of Central Intelligence to institute a random drug testing program for employees of the CIA. The Senate amendment did not contain a similar provision and the conferees have agreed to the Senate position.
The conferees note that CIA maintains an aggressive drug awareness and prevention program, and is actively committed to preventing and detecting drug use among CIA employees.
The CIA's drug detection program includes background investigations of all applicants, specifically focusing on whether applicants may use or abuse drugs or alcohol. Applicants are also given medical examinations that screen urine and blood samples. Psychological assessments are made of applicants to determine behavior that could indicate abuse of drugs or alcohol. Finally, every applicant is givan a polygraph examination to determine whether the applicant has abused drugs or alcohol.
The CIA's program for a drug-free workplace does not end with the acceptance of an applicant for employment. The Agency continues to be vigilant against drug abuse among its employees. Agency policy requires that new employees be subject to reinvestigation after three years. This reinvestigation includes another medical examination and another polygraph examination that covers substance abuse during the time of employment at the Agency. Agency employees are also subject to periodic routine reinvestigations. A specific issue polygraph examination and/or fitness-for-duty medical examination may be conducted at any time if there are indications of drug abuse.
Should be conferees, through the oversight activities of the intelligence committees, determine that a drug problem has developed at the CIA, the issue of random testing will be reexamined.
From the Select Committee on Intelligence:
DAVE MCCURDY,
BARBARA KENNELLY,
DAN GLICKMAN,
NICHOLAS MAVROULES,
BILL RICHARDSON,
STEPHEN SOLARZ,
NORMAN D. DICKS,
RONALD V. DELLUMS,
DAVID BONIOR,
MARTIN OLAV SABO,
WAYNE OWENS,
BUD SHUSTER,
LARRY COMBEST,
DOUG BEREUTER,
R.K. DORNAN,
BILL YOUNG,
DAVID O'B. MARTIN,
GEORGE W. GEKAS,
From the Committee on Armed Services for the consideration of Defense Tactical Intelligence and related activities and section 505 of both the House bill and the Senate amendment:
LES ASPIN,
IKE SKELTON,
WILLIAM L. DICKINSON,
Managers on the Part of the House.
[Page: H5907]
From the Select Committee on Intelligence:
DAVID L. BOREN,
SAM NUNN,
FRITZ HOLLINGS,
BILL BRADLEY,
ALAN CRANSTON,
DENNIS DECONCINI,
HOWARD M. METZENBAUM,
JOHN GLENN,
FRANK H. MURKOWSKI,
JOHN WARNER,
ALFONSE D'AMATO,
JOHN C. DANFORTH,
WARREN RUDMAN,
SLADE GORTON,
JOHN H. CHAFEE,
From the Committee on Armed Services:
J.J. EXON,
STROM THURMOND,
Managers on the Part of the Senate.
END