from
INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 1999 (House of
Representatives - May 07, 1998)
original starts at [Page: H2944]
Contents: Comments by Reps.Millender-McDonald and Conyers
A Tangled Web: A History of CIA Complicity
in Drug International Trafficking
Comments by Rep. Waters
Summary of Memorandum of Understanding
Correspondence between CIA and DOJ
Reporting and Use of Information Concerning Federal Crimes (1982)
Officers or Employees of Agencies in the Intelligence Community
Non-Employees
Current Memorandum of Understanding(1995) & Footnotes
Closing Comments
* Ms. MILLENDER-McDONALD. Mr. Chairman, I rise to express my support for
H.R. 3694, the Intelligence Authorization for FY 1999. However, my
support is not without serious reservations, for I remain deeply
concerned about allegations that have been raised regarding CIA
involvement in drug trafficking in South Central Los Angeles and
elsewhere. While I applaud Chairman Porter Goss, Ranking Member Norm
Dicks, and the rest of the House Permanent Select Committee for
convening a public hearing following release of Volume One of the
Central Intelligence Agency Inspector General's report in response to
the San Jose Mercury News' series `Dark Alliance', I have made my views
about the shortcomings in this report known to the Committee and to the
Agency. I am aware that Volume Two of the Inspector General's report,
which deals with the more substantive issues regarding the extent of
the relationship between the intelligence community and the Nicaraguan
Contra resistance, has been provided to the Select Committee in
classified form. I understand that it is being reviewed by the Central
Intelligence Agency to determine whether any or all of it may be
declassified. And, we are still awaiting release of Inspector General
Michael Bromwich's report on the allegations of wrongdoing that may
have occurred within branches of the U.S. Department of Justice.
* However, I would like to take this opportunity to strongly urge CIA
Director John Tenet and Chairman Goss to do everything possible to
declassify as much information in the report as possible as its subject
matter goes to the heart of the issues raised by my constituents in the
public meetings I convened following publication of the San Jose
Mercury News series. I also urge Attorney General Janet Reno to release
the I.G.'s report at the earliest possible opportunity. Failure to make
this information public feeds the skepticism of the hundreds of
constituents in my District who still want answers and who are
encouraged by the Committee's expressed commitment to make public as
much information as possible.
* Furthermore, to fully appreciate our government's efforts to fight the
scourge of narcotics, the public must understand its intricacies,
including the role of interdiction and intelligence. Public release of
the reports, followed by public hearings, and ultimately the conduct by
the Committee of its own inquiry, will assist my constituents to
evaluate the role of the Central Intelligence Agency played in
balancing competing national priorities. Such a process will also give
Members of Congress, as policy makers, the information necessary to
make informed decisions about handling such issues in the future.
* Consequently, I and my constituents continue to eagerly await the
public release of the reports by the Inspectors General of Justice and
CIA. I reiterate my hope that the Select Committee will give their
content, methodologies and findings the scrutiny they deserve and in a
similar spirit of openness, make themselves available to my
constituents to respond to any questions these reports generate. I
believe such openness is critical to restoration of the credibility and
public trust necessary to allow intelligence gathering activities,
which by their nature are secretive, to coexist with democracy.
*
* Mr. CONYERS. Mr. Chairman, I want to take a few minutes to talk about
some of the things that aren't being talked about enough. The war on
drugs has come up several times today. I think there's some compelling
evidence to show how the culture of obsessive secrecy that is part of
covert action cultivates an actual and implied climate of impunity.
* The CIA's Inspector General, Fred Hitz, undertook a massive study into
the CIA ties to drug traffickers. Upon completion of the first volume
of the 600 page report, Hitz declared that they found `no evidence . .
. of any conspiracy by the CIA or its employees to bring drugs into the
United States.' Then he announced that hardly any of his findings would
be publicly available, casting a long shadow of doubt as to the scope
and conclusions of the investigation. A second volume is still in the
works.
* The CIA's credibility when it comes to investigating itself was further
brought into question when Hitz disclosed during recent testimony
before the House Intelligence Committee that in 1982, the CIA and
Attorney General William French Smith had an agreement that the CIA was
not required to report allegations of drug smuggling by non-employees.
Non-employees was explicitly interpreted to include unpaid and paid
assets of the CIA, such as pilots and informants. The memorandum, dated
February 11, 1982, states `no formal requirement regarding the
reporting of narcotics violations has been included in these
procedures', referring to the procedures relating to non-employee
crimes. I want to compliment the gentlelady from California, Ms.
Waters, for her hard work on this topic and for obtaining this and
other relevant memoranda. I ask you, though, is this the war on drugs
that President Reagan launched?
* Nobody here who advocates cuts to the intelligence budget or reforming
this intelligence system gone haywire doubts for one second that the
U.S. needs reliable information about exports of Russian missile
technology or the trade in bacteriological warfare technology. I am a
veteran and I know how important intelligence is. But doesn't the above
information illustrate why the integrity of our intelligence system is
in doubt?
* The historical record shows that this culture of secrecy too often
undermines our foreign and domestic interests.
* In 1989, the Senate Subcommittee on Terrorism, Narcotics and
International Communications, headed by Senator John Kerry, found that
`there was substantial evidence of drug smuggling through the war zone
on the part of individual Contras, Contra suppliers, Contra pilots,
mercenaries who worked with the Contra supporters throughout the
region.' Moreover, U.S. officials `failed to address the drug issue for
fear of jeopardizing the war efforts against Nicaragua.'
* In other words, the drug war was subordinated to the cold war. This is
right in line with what we've learned about the memorandum of
understanding described above. I am inserting into the Record a list,
compiled by the Institute for Policy Studies, which goes through other
examples of the troubling history of our intelligence agencies.
[Page: H2955]
A Tangled Web: A History of CIA Complicity in Drug International Trafficking
WORLD WAR II
The Office of Strategic Services (OSS) and the Office of Naval Intelligence
(ONI), the CIA's parent and sister organizations, cultivate relations with
the leaders of the Italian Mafia, recruiting heavily from the New York and
Chicago underworlds, whose members, including Charles `Lucky' Luciano, Meyer
Lansky, Joe Adonis, and Frank Costello, help the agencies keep in touch with
Sicilian Mafia leaders exiled by Italian dictator Benito Mussolini.
Domestically, the aim is to prevent sabotage on East Coast ports, while in
Italy the goal is to gain intelligence on Sicily prior to the allied
invasions and to suppress the burgeoning Italian Communist Party. Imprisoned
in New York, Luciano earns a pardon for his wartime service and is deported
to Italy, where he proceeds to build his heroin empire, first by diverting
supplies from the legal market, before developing connections in Lebanon and
Turkey that supply morphine base to labs in Sicily. The OSS and ONI also
work closely with Chinese gangsters who control vast supplies of opium,
morphine and heroin, helping to establish the third pillar of the post-world
War II heroin trade in the Golden Triangle, the border region of Thailand,
Burma, Laos and China's Yunnan Province.
1947
In its first year of existence, the CIA continues U.S. intelligence
community's anti-communist drive. Agency operatives help the Mafia seize
total power in Sicily and it sends money to heroin-smuggling Corsican
mobsters in Marseille to assist in their battle with Communist unions for
control of the city's docks. By 1951, Luciano and the Corsicans have pooled
their resources, giving rise to the notorious `French Connection' which
would dominate the world heroin trade until the early 1970s. The CIA also
recruits members of organized crime gangs in Japan to help ensure that the
country stays in the non-communist world. Several years later, the Japanese
Yakuza emerges as a major source of methamphetamine in Hawaii.
1949
Chinese Communist revolution causes collapse of drug empire allied with U.S.
intelligence community, but a new one quickly emerges under the command of
Nationalist (KMT) General Li Mi, who flees Yunnan into eastern Burma.
Seeking to rekindle anticommunist resistance in China, the CIA provides
arms, ammunition and other supplies to the KMT. After being repelled from
China with heavy losses, the KMT settles down with local population and
organizes and expands the opium trade from Burma and Northern Thailand. By
1972, the KMT controls 80 percent of the Golden Triangle's opium trade.
1950
The CIA launches Project Bluebird to determine whether certain drugs might
improve its interrogation methods. This eventually leads CIA head Allen
Dulles, in April 1953, to institute a program for `covert use of biological
and chemical materials' as part of the agency's continuing efforts to
control behavior. With benign names such as Project Artichoke and Project
Chatter, these projects continue through the 1960s, with hundreds of
unwitting test subjects given various drugs, including LSD.
1960
In support of the U.S. war in Vietnam, the CIA renews old and cultivates new
relations with Laotian, Burmese and Thai drug merchants, as well as corrupt
military and political leaders in Southeast Asia. Despite the dramatic rise
of heroin production, the agency's relations with these figures attracts
little attention until the early 1970s.
1967
Manuel Antonio Noriega goes on the CIA payroll. First recruited by the U.S.
Defense Intelligence Agency in 1959, Noriega becomes an invaluable asset for
the CIA when he takes charge of Panama's intelligence service after the 1968
military coup, providing services for U.S. covert operations and
facilitating the use of Panama as the center of U.S. intelligence gathering
in Latin America. In 1976, CIA Director George Bush pays Noriega $110,000
for his services, even though as early as 1971 U.S. officials agents had
evidence that he was deeply involved in drug trafficking. Although the
Carter administration suspends payments to Noriega, he returns to the U.S.
payroll when President Reagan takes office in 1981. The general is rewarded
handsomely for his services in support of Contras forces in Nicaragua during
the 1980s, collecting $200,000 from the CIA in 1986 alone.
MAY 1970
A Christian Science Monitor correspondent reports that the CIA `is cognizant
of, if not party to, the extensive movement of opium out of Laos,' quoting
one charter pilot who claims that `opium shipments get special CIA clearance
and monitoring on their flights southward out of the country.' At the time,
some 30,000 U.S. service men in Vietnam are addicted to heroin.
1972
The full story of how Cold War politics and U.S. covert operations fueled a
heroin boom in the Golden Triangle breaks when Yale University doctoral
student Alfred McCoy publishes his ground-breaking study, The Politics of
Heroin in Southeast Asia. The CIA attempts to quash the book.
1973
Thai national Puttapron Khramkhruan is arrested in connection with the
seizure of 59 pounds of opium in Chicago. A CIA informant on narcotics
trafficking in northern Thailand, he claims that agency had full knowledge
of his actions. According to the U.S. Justice Department, the CIA quashed
the case because it may `prove embarrassing because of Mr. Khramkhruans's
involvement with CIA activities in Thailand, Burma, and elsewhere.'
JUNE 1975
Mexican police, assisted by U.S. drug agents, arrest Alberto Sicilia Falcon,
whose Tijuana-based operation was reportedly generating $3.6 million a week
from the sale of cocaine and marijuana in the United States. The Cuban exile
claims he was a CIA protege, trained as part of the agency's anti-Castro
efforts, and in exchange for his help in moving weapons to certain groups in
Central America, the CIA facilitated his movement of drugs. In 1974,
Sicilia's top aide, Jose Egozi, a CIA-trained intelligence officer and Bay
of Pigs veteran, reportedly lined up agency support for a right-wing plot to
overthrow the Portuguese government. Among the top Mexican politicians, law
enforcement and intelligence officials from whom Sicilia enjoyed support was
Miguel Nazar Haro, head of the Direccion Federal de Seguridad (DFS), who the
CIA admits was its `most important source in Mexico and Central America.'
When Nazar was linked to a multi-million-dollar stolen car ring several
years later, the CIA intervenes to prevent his indictment in the United
States.
APRIL 1978
Soviet-backed coup in Afghanistan sets stage for explosive growth in
Southwest Asian heroin trade. New Marxist regime undertakes vigorous
anti-narcotics campaign aimed at suppressing poppy production, triggering a
revolt by semi-autonomous tribal groups that traditionally raised opium for
export. The CIA-supported rebel Mujahedeen begins expanding production to
finance their insurgency. Between 1982 and 1989, during which time the CIA
ships billions of dollars in weapons and other aid to guerrilla forces,
annual opium production in Afghanistan increases to about 800 tons from 250
tons. By 1986, the State Department admits that Afghanistan is `probably the
world's largest producer of opium for export' and `the poppy source for a
majority of the Southwest Asian heroin found in the United States.' U.S.
officials, however, fail to take action to curb production. Their silence
not only serves to maintain public support for the Mujahedeen, it also
smooths relations with Pakistan, whose leaders, deeply implicated in the
heroin trade, help channel CIA support to the Afghan rebels.
[Page: H2956]
JUNE 1980
Despite advance knowledge, the CIA fails to halt members of the Bolivian
militaries, aide by the Argentine counterparts, from staging the so-called
`Cocaine Coup,' according to former DEA agent Michael Levine. In fact, the
25-year DEA veteran maintains the agency actively abetted cocaine
trafficking in Bolivia, where government official who sought to combat
traffickers faced `torture and death at the hands of CIA-sponsored
paramilitary terrorists under the command of fugitive Nazi war criminal
(also protected by the CIA) Klaus Barbie.
FEBRUARY 1985
DEA agent Enrique `Kiki' Camerena is kidnapped and murder in Mexico. DEA,
FBI and U.S. Customs Service investigators accuse the CIA of stonewalling
during their investigation. U.S. authorities claim the CIA is more
interested in protecting its assets, including top drug trafficker and
kidnapping principal Miguel Angel Felix Gallardo. (In 1982, the DEA learned
that Felix Gallardo was moving $20 million a month through a single Bank of
America account, but it could not get the CIA to cooperate with its
investigation.) Felix Gallardo's main partner is Honduran drug lord Juan
Ramon Matta Ballesteros, who began amassing his $2-billion fortune as a
cocaine supplier to Alberto Sicilia Falcon. (see June 1985) Matta's air
transport firm, SETCO, receives $186,000 from the U.S. State Department to
fly `humanitarian supplies' to the Nicaraguan Contras from 1983 to 1985.
Accusations that the CIA protected some of Mexico's leading drug traffickers
in exchange for their financial support of the Contras are leveled by
government witnesses at the trials of Camarena's accused killers.
JANUARY 1988
Deciding that he has outlived his usefulness to the Contra cause, the Reagan
Administration approves an indictment of Noriega on drug charges. By this
time, U.S. Senate investigators had found that `the United States had
received substantial information about criminal involvement of top
Panamanian officials for nearly twenty years and done little to respond.'
APRIL 1989
The Senate Subcommittee on Terrorism, Narcotics and International
Communications, headed by Sen. John Kerry of Massachusetts, issues its
1,166-page report on drug corruption in Central America and the Caribbean.
The subcommittee found that `there was substantial evidence of drug
smuggling through the war zone on the part of individuals Contras, Contra
suppliers, Contra pilots, mercenaries who worked with the Contras supporters
throughout the region.' U.S. officials, the subcommittee said, `failed to
address the drug issue for fear of jeopardizing the war efforts against
Nicaragua.' The investigation also reveals that some `senior policy makers'
believed that the use of drug money was `a perfect solution to the Contras'
funding problems.'
JANUARY 1993
Honduran businessman Eugenio Molina Osorio is arrested in Lubbock Texas for
supplying $90,000 worth of cocaine to DEA agents. Molina told judge he is
working for CIA to whom he provides political intelligence. Shortly after, a
letter from CIA headquarters is sent to the judge, and the case is
dismissed. `I guess we're all aware that they [the CIA] do business in a
different way than everybody else,' the judge notes. Molina later admits his
drug involvement was not a CIA operation, explaining that the agency
protected him because of his value as a source for political intelligence in
Honduras.
NOVEMBER 1996
Former head of the Venezuelan National Guard and CIA operative Gen. Ramon
Gullien Davila is indicted in Miami on charges of smuggling as much as 22
tons of cocaine into the United States. More than a ton of cocaine was
shipped into the country with the CIA's approval as part of an undercover
program aimed at catching drug smugglers, an operation kept secret from
other U.S. agencies.
[...]
Ms. WATERS. Mr. Chairman, I move to strike the requisite number of words.
Mr. Chairman, I rise to support the amendment that is being offered for a
meager 5 percent cut from the intelligence budget. I rise to support it
because it makes eminently good sense.
First of all, no matter what my colleagues say, those who are opposed to
this amendment, those who can appear and rant and rave about why we should
not only support the budget but be for more money for that budget, first of
all, it has been said over and over again, the Cold War is over; the Soviet
Union is no more.
Where is this great threat to our country? Who can identify anybody in the
world who is prepared to take on the United States of America? Someone
alluded to Iran and alluded to China. Well, I can talk a lot about China.
And if we feel they are such a great threat, why are we chasing them down,
embracing them, running after them to do business with them, to be involved
in trade activities with them?
Let me tell my colleagues where the threat is. The real war that is being
waged on America today is the drug war. Where is our great intelligence to
tell us who the drug lords are and how they manage to continue day in and
day out, week in and week out, to dump tons of drugs into this Nation that
finds its way into our cities and our rural communities, addicting our
children, creating more crimes, with people who get addicted and are looking
for ways to support those habits.
Why cannot this intelligence community tell us who these drug lords are? Why
is it these cartels can continue to operate without any interference? It is
so embarrassing to have our own Drug Czar go down to Mexico and wrap his
arms around General Gutierrez Rebollo. And just a few days after he is down
there talking about how great he is, this is our own drug czar, the drug
czar was busted because he is connected to the Juarez cartel.
Now, our Drug Czar was in the service. He is a general. He knows about the
DIA, the CIA, and everybody else. But he goes down there, wraps his arms
around him, talks about how great he is, he has known him for years; and he
is the dope dealer. He is the one that is connected to the drug cartel. This
is outrageous. It is embarrassing.
And do not tell me how good the intelligence community is. It does not
matter whether we are talking about Mexico or Peru or Colombia. Why cannot
our intelligence community tell us about the heads of government and the
leadership of those countries who are involved in trafficking drugs, at the
same time we are giving support to them, we are showing up with them in
every kind of cockamamie scheme, talking about we are helping to eliminate
drugs, when the fact of the matter is, it is getting worse.
If this intelligence community was about the business of dealing with any
war, it would be the war on drugs. That is the war that is being waged on
America. I am sick and tired of hearing that we cannot streamline, we cannot
cut, we cannot do anything about the intelligence community. And there are
those who just romanticize the intelligence community, those who think we
cannot ask any questions, we cannot cut them, we cannot dare challenge them.
It is outdated, long overdue for cuts and being streamlined. And yet we come
to the floor, person after person, talking about how great it is, how we
should continue to support it.
Well, my colleagues know that I have been involved in this drug war for a
long time, and they understand that the number one priority of the
Congressional Black Caucus is to get rid of drugs in our society. We do not
have any help from the CIA. As a matter of fact, we are still investigating
the CIA and their involvement in drug trafficking.
As my colleagues know, we just had a hearing, and I would like to thank our
ranking member for embracing some of the ideas that I have, and in that
hearing we are investigating what was the CIA doing when all the drugs were
being trafficked in South Central Los Angeles and profits were going to fund
the contras? Where were they?
Well, I will tell my colleagues where they were. They were at the same place
they were when they were in Southeast Asia, turning their backs on drug
trafficking, even being involved in it, to have additional money. They like
slush funds. It is not enough that we give them over $30 billion in this
intelligence community.
If we want an intelligence operation that is dealing with the real war, turn
their attention to the drug war and maybe we will want to support them in
the future.
[...]
The gentlewoman from California (Ms. Waters) is recognized for 5 minutes.
Ms. WATERS. Mr. Chairman, this amendment would call for a review of the 1995
memorandum of understanding that currently exists between the Director of
Central Intelligence and the intelligence community and the Department of
Justice regarding reporting of information concerning Federal crimes.
This amendment is very simple and noncontroversial. It calls for a review of
the current memorandum of understanding to ensure that drug trafficking and
drug law violations by anybody in the intelligence community is reported to
the Department of Justice. Specifically, the review would examine any
requirements for intelligence employees to report to the Director of Central
Intelligence and any requirements for the Director to report this
information to agencies.
This information would be reported to the Attorney General. The review would
be published publicly. This simple amendment fits well with the recent calls
for a reinvigorated war on drugs. The need for this amendment, however,
cannot be understated.
One of the most important things that came out of the hearing of the House
Permanent Select Committee on Intelligence was an understanding about why we
did not know about who was trafficking in drugs as we began to investigate
and take a look at the allegations that were being made about the CIA's
involvement in drug trafficking in south central Los Angeles and the
allegations that profits from that drug trafficking was going to support the
Contras.
We discovered that for 13 years the CIA and the Department of Justice
followed a memorandum of understanding that explicitly exempted the
requirement to report drug law violations by CIA non-employees to the
Department of Justice. This allowed some of the biggest drug lords in the
world to operate without fear that the CIA would be required to report the
activity to the DEA and other law enforcement agencies.
In 1982, the Attorney General and the Director of Central Intelligence
entered into an agreement that excluded the reporting of narcotics and drug
crimes by the CIA to the Justice Department. Under this agreement, there was
no requirement to report information of drug trafficking and drug law
violations with respect to CIA agents, assets, non-staff employees and
contractors. This remarkable and secret agreement was enforced from February
1982 to August of 1995. This covers nearly the entire period of U.S.
involvement in the Contra war in Nicaragua and the deep U.S. involvement in
the counterinsurgency activities in El Salvador and Central America.
Senator Kerry and his Senate investigation found drug traffickers had used
the Contra war and tie to the Contra leadership to help this deadly trade.
Among their devastating findings, the Kerry committee investigators found
that major drug lords used the Contra supply networks and the traffickers
provided support for Contras in return. The CIA of course, created, trained,
supported, and directed the Contras and were involved in every level of
their war.
The 1982 memorandum of understanding that exempted the reporting requirement
for drug trafficking was no oversight or misstatement. Previously unreleased
memos between the Attorney General and Director of Central Intelligence show
how conscious and deliberate this exemption was.
On February 11, 1982, Attorney General French Smith wrote to DCI William
Casey that, and I quote, this is what he said:
[Page: H2971]
I have been advised that a question arose regarding the need to add
narcotics violations to the list of reportable non-employee crimes . . . no
formal requirement regarding the reporting of narcotics violations has been
included in these procedures.
On March 2, 1982 William Casey responded:
I am pleased these procedures which I believe strike the proper balance
between enforcement of the law and protection of intelligence sources and
methods will now be forwarded to other agencies covered by them for signing
by the heads of those agencies.
My colleagues heard me correctly.
The CHAIRMAN. The time of the gentlewoman from California (Ms. Waters) has
expired.
(By unanimous consent, Ms. Waters was allowed to proceed for 3 additional
minutes.)
Ms. WATERS. Mr. Chairman, the fact that President Reagan's Attorney General
and Director of Central Intelligence thought that drug trafficking by their
assets agents and contractors needed to be protected has been long known.
These damning memorandums and the resulting memorandum of understanding are
further evidence of a shocking official policy that allowed the drug cartels
to operate through the CIA-led Contra covert operations in Central America.
This 1982 agreement clearly violated the Central Intelligence Agency Act of
1949. It also raises the possibility that certain individuals who testified
in front of congressional investigating committees perjured themselves.
Mr. Chairman, every American should be shocked by these revelations. Given
the shameful history of turning a blind eye to CIA involvement with drug
traffickers, this amendment seeks to determine whether the current
memorandum of understanding closes all of these loopholes to the drug
cartels and narcotics trade.
At this time I know that there is a point of order against my amendment. The
chairman of the committee is going to oppose this amendment, and so I am
going to withdraw the amendment. But I wanted the opportunity to put it
before this body so that they could understand that we had an official
policy and a memorandum of understanding that people could fall back on and
say I did not have to report it. Yes, I knew about it.
We have a subsequent memorandum of understanding of 1995 that is supposed to
take care of it. I am not sure that it does.
Mr. Chairman, I submit for the Record the following correspondence between
William French Smith and William J. Casey:
Office of the Attorney General,
Washington, DC, February 11, 1982.
Hon. William J. Casey,
Director, Central Intelligence Agency, Washington, DC.
Dear Bill: Thank you for your letter regarding the procedures governing the
reporting and use of information concerning federal crimes. I have reviewed
the draft of the procedures that accompanied your letter and, in particular,
the minor changes made in the draft that I had previously sent to you. These
proposed changes are acceptable and, therefore, I have signed the
procedures.
I have been advised that a question arose regarding the need to add
narcotics violations to the list of reportable non-employee crimes (Section
IV). 21 U.S.C. 874(h) provides that `[w]hen requested by the Attorney
General, it shall be the duty of any agency or instrumentality of the
Federal Government to furnish assistance to him for carrying out his
functions under [the Controlled Substances Act] . . .' Section 1.8(b) of
Executive Order 12333 tasks the Central Intelligence Agency to `collect,
produce and disseminate intelligence on foreign aspects of narcotics
production and trafficking.' Moreover, authorization for the dissemination
of information concerning narcotics violations to law enforcement agencies,
including the Department of Justice, is provided by sections 2.3(c) and (i)
and 2.6(b) of the Order. In light of these provisions, and in view of the
fine cooperation the Drug Enforcement Administration has received from CIA,
no formal requirement regarding the reporting of narcotics violations has
been included in these procedures. We look forward to the CIA's continuing
cooperation with the Department of Justice in this area.
In view of our agreement regarding the procedure, I have instructed my
Counsel for Intelligence Policy to circulate a copy which I have executed to
each of the other agencies covered by the procedures in order that they may
be signed by the head of each such agency.
Sincerely,
William French Smith,
Attorney General.
--
--
THE DIRECTOR OF
Central Intelligence,
Washington, DC, March 2, 1982.
Hon. William French Smith,
Attorney General, Department of Justice, Washington, DC.
Dear Bill: Thank you for your letter of 11 February regarding the procedures
on reporting of crimes to the Department of Justice, which are being adopted
under Section 1-7(a) of Executive Order 12333. I have signed the procedures,
and am returning the original to you for retention at the Department.
I am pleased that these procedures, which I believe strike the proper
balance between enforcement of the law and protection of intelligence
sources and methods, will now be forwarded to other agencies covered by them
for signing by the heads of those agencies.
With best regards,
Yours,
William J. Casey.
Enclosure.
Reporting and Use of Information Concerning Federal Crimes
I. SCOPE
Section 1-7(a) of Executive Order 12333 requires senior officials of the
Intelligence Community to:
Report to the Attorney General possible violations of federal criminal laws
by employees and of specified federal criminal laws by any other person as
provided in procedures agreed upon by the Attorney General and the head of
the department or agency concerned, in a manner consistent with the
protection of intelligence sources and methods, as specified in those
procedures.
These procedures govern the reporting of information concerning possible
federal crimes to the Attorney General and to federal investigative agencies
acquired by agencies within the Intelligence Community in the course of
their functions. They also govern the handling and use of such information
by the Department of Justice and federal investigative agencies in any
subsequent investigations or litigation. These procedures are promulgated
under the authority of 28 U.S.C. 535 and Executive Order 12333, Sec. 1-7(a).
II. DEFINITIONS
A. `Agency' means those agencies within the Intelligence Community, as
defined in Executive Order 12333, 3-4(f) except for the intelligence
elements of the Federal Bureau of Investigation and the Department of the
Treasury.
B. `Department' means the Department of Justice.
C. `Employee' means:
1. A staff employee or contract employee of an Agency;
2. Former officers or employees of an Agency, for purposes of offenses
committed during their employment; and
3. Former officers or employees of an Agency, for offenses involving a
violation of 18 U.S.C. 207.
D. Except as specifically provided otherwise, `General Counsel' means the
general counsel of the Agency or the department of which it is a component
or a person designated by him to act on his behalf.
III. GENERAL CONSIDERATIONS
A. These procedures govern the reporting of information which the Agency or
its current employees become aware of in the course of performing their
functions. They do not authorize the Agency to conduct any investigation or
to collect any information not otherwise authorized by law.
B. These procedures require a current employee of the Agency to report to
the General Counsel facts or circumstances that appear to the employee to
indicate that a criminal offense may have been committed. Reports to the
Department of Justice or to a federal investigative agency will be made by
the Agency as set forth below.
C. When an Agency has received allegations, complaints or information
[hereinafter `allegations'] tending to show that an employee of that agency
may have violated any federal criminal statute, or another person may have
violated a federal criminal statute contained within one of the categories
listed in Section IV below, the Agency shall within a reasonable period of
time determine through a preliminary inquiry whether or not there is any
basis to the allegations (that is, are clearly not frivolous or false). If
the allegations can be established as without basis, the General Counsel
will make an appropriate record of his findings and no reporting under these
procedures is required. If the allegations cannot be established as without
basis, the reporting procedures set forth below will be followed. A
preliminary inquiry shall not include interviews with persons other than
current employees of the Agency or examination of premises not occupied by
the Agency without the prior notification and approval of the Department of
Justice, except that the Agency may interview a non-employee for the sole
purpose of determining the truth of a report that such non-employee has made
an allegation or complaint against an Agency employee. The foregoing
provisions shall neither limit the techniques which the Agency may otherwise
be authorized to use, nor limit the responsibility of the Agency to provide
for its security functions pursuant to Executive Order 12333.
D. Allegations shall be reported pursuant to the procedures in effect at the
time the allegations came to the attention of the Agency.
E. Allegations that appear to involve crimes against property and involve
less than $500 need not be reported pursuant to the procedures set forth
below. The General Counsel will, however, make an appropriate record of his
findings.
F. In lieu of following the procedures set forth below, the General Counsel
may orally report periodically, but at least quarterly, to the Department
concerning those offenses which, while subject to these reporting
requirements, are in the opinion of the General Counsel of such a minor
nature that no further investigation or prosecution of the matter is
necessary. If an oral report is made, the General Counsel will meet with the
Assistant Attorney General or a designated Deputy Assistant Attorney General
of the Criminal Division, Department of Justice to obtain his concurrence or
nonconcurrence with the General Counsel's opinion. If such concurrence is
obtained, no further reporting under these procedures is required. If
concurrence is not obtained, the reporting procedures set forth below will
be followed.
[Page: H2972]
IV. NON-EMPLOYEE REPORTABLE OFFENSES
A. Allegations concerning offenses in the following categories are
reportable, if they pertain to a person other than an employee.
1. Crimes involving intentional infliction or threat of death or serious
physical harm. Such crimes may include:
Assault--18 U.S.C. 111-113(A).
Homicide--18 U.S.C. 1111-14, 1116, 2113(e).
Kidnapping--18 U.S.C. 1201.
Presidential assassination, assault or kidnapping--18 U.S.C. 1751.
Threats against the President and successors to the President--18 U.S.C.
871.
2. Crimes likely to impact upon the national security, defense or foreign
relations of the United States. Such crimes may include:
Communicating classified information--50 U.S.C. 783(b).
Espionage--18 U.S.C. 793-98.
Sabotage--18 U.S.C. 2151-57.
Arms Export Control Act--22 U.S.C. 2778.
Atomic Energy Act--* * * U.S.C. 2077, 2092, 2111, 2122.
Export Administration Act--50 U.S.C. App. 2410.
Neutrality offenses--18 U.S.C. 956-60.
Trading with the Enemy Act--50 U.S.C. App. 5(b), 16.
Agents of foreign government--18 U.S.C. 951.
Government employee acting for a foreign principal--18 U.S.C. 219.
Communication, receipt or disclosure of restricted data--42 U.S.C. 2274-77.
Registration of certain persons trained in foreign espionage systems--50
U.S.C. 851.
Foreign Agents Registration Act--22 U.S.C. 618(a).
Unlawfully entering the United States--8 U.S.C. 1325.
Any other offense not heretofore listed which is contained within Chapter 45
of Title 18 U.S.C.
3. Crimes involving foreign interference with the integrity of United States
governmental institutions or processes. Such crimes may include, when
committed by foreign persons:
Bribery of public officials and witnesses--18 U.S.C. 201-208.
Conspiracy to injury or impede an officer--18 U.S.C. 372.
Election contributions and expenditures--2 U.S.C. 441a-j, 599-600.
4. Crimes which appear to have been committed by or on behalf of a foreign
power or in connection with international terrorist activity. Such crimes
may include:
Aircraft piracy--49 U.S.C. 1472(i).
Distribution, possession, and use of explosives--18 U.S.C. 842(a)-(i).
Unlawful electronic surveillance--18 U.S.C. 2511(l), 2512(l), 50 U.S.C. Sec.
1809.
Passport and visa offenses--18 U.S.C. 1541-44, 1546.
Distribution, possession, transfer, and use of firearms--18 U.S.C. 922, 924;
26 U.S.C. 5861.
Transporting explosives on board aircraft--49 U.S.C. 1472(h).
Conspiracy to injure or impede an officer--18 U.S.C. 372.
Counterfeiting U.S. obligations--18 U.S.C. 471-74.
False statements and false official papers--18 U.S.C. 1001-02, 1017-18.
Obstruction of justice--18 U.S.C. 1503-06, 1508-10.
Perjury--18 U.S.C. 1621-23.
B. Any conspiracy or attempt to commit a crime reportable under this section
shall be reported if the conspiracy or attempt itself meets the applicable
reporting criteria.
C. The General Counsel will make an appropriate record of any matter brought
to his attention which he determines is not reportable under this section.
D. Notwithstanding any of the provisions above, the General Counsel may
report any other possible offense when he believes it should be reported.
V. REPORTING PROCEDURES--FORMAT
The fact that a referral has been made pursuant to these procedures shall be
reflected in a letter or memorandum sent by the Agency to the entity
designated to receive the referral under these procedures. In each instance
that a referral is required, information sufficiently detailed to allow the
Department of Justice to make informed judgments concerning the appropriate
course of subsequent investigations or litigation shall be transmitted,
either orally or in writing, to the Attorney General, the Assistant or a
designated Deputy Assistant Attorney General, Criminal Division, Department
of Justice, or the Assistant Director, Criminal Investigative or
Intelligence Division, Federal Bureau of Investigation. The Agency shall
supplement its referral when any additional information relating to the
original referral comes to its attention.
VI. REPORTING PROCEDURES--NO SECURITY CONSIDERATIONS INVOLVED
A. Where the Agency determines in accordance with these procedures that a
matter must be reported, and where the Agency further determines that no
public disclosure of classified information or intelligence sources and
methods would result from further investigation or prosecution, and the
security of ongoing intelligence operations would not be jeopardized
thereby, the Agency will report the matter to the appropriate federal
investigative agency, or to the appropriate United States Attorney for an
investigative or prosecutive determination. In each such instance, the
Agency shall also notify the Department of Justice, Criminal Division of the
referral.
B. The Agency will inform the entity receiving such report that, unless
notified otherwise by the Agency or by the Department, the security and
consulting requirements set forth in Section VII of these procedures need
not be followed.
C. A federal investigative agency or United States Attorney receiving
information from the Agency pursuant to Section VI of these procedures is
required promptly to advise the Agency of the initiation and conclusion of
any investigation or prosecution involving such information.
VII. REPORTING PROCEDURES--SECURITY CONSIDERATIONS INVOLVED
A. Where the Agency determines in accordance with these procedures that a
matter must be reported, and where the Agency also determines that further
investigation or prosecution of the matter would or might result in a public
disclosure of classified information or intelligence sources or methods or
would jeopardize the security of ongoing intelligence operations, the Agency
will report the matter to the Assistant Attorney General or a designated
Deputy Assistant Attorney General, Criminal Division, Department of Justice
or Assistant Director, Criminal Investigative or Intelligence Division,
Federal Bureau of Investigation, in the manner described in section V,
above. In any instance in which a matter is reported to the Federal Bureau
of Investigation, the Agency shall also notify the Department of Justice,
Criminal Division of the referral. Upon request, the Agency will explain the
security or
operational problems that would or might arise from a criminal investigation
or prosecution.
B. Persons who are the subject of reports made pursuant to this section may
be identified as John Doe XXX in any written document associated therewith.
The true identities of such persons will be made available when the
Department of Justice determines that they are essential to any subsequent
investigation or prosecution of the matter reported.
C. Information contained in Agency reports will be disseminated to persons
other than the Assistant or Deputy Assistant Attorney General or the
Assistant Director, Criminal Investigative or Intelligence Division, FBI,
only as follows:
1. No Department or Federal investigative employee will be given access to
classified information unless that person has been granted appropriate
clearances, including any special access approvals. The Assistant or Deputy
Assistant Attorney General or the Assistant Director, Criminal Investigative
or Intelligence Division, FBI, will ensure that access by an employee is
necessary for the performance of an official function and that access is
limited to the minimum number of cleared persons necessary for investigative
or prosecutorial purposes. The Department will provide the head of the
Agency with a detailed report regarding any disclosure not authorized by
these procedures and will take appropriate disciplinary action against any
employee who participates in such a disclosure.
2. With regard to information reported to the Criminal Division, Department
of Justice, which the general counsel of an Agency designates in writing as
particularly sensitive and for which special dissemination controls are
requested pursuant to this provision, dissemination will only occur after
consultation with the General Counsel of the Agency. The designation of
information as particularly sensitive may be made only by the general
counsel or acting general counsel of an Agency.
[Page: H2973]
3. Except as permitted by these procedures, classified information which has
been received by the Department, the FBI, or other federal investigative
agency pursuant to these procedures may not be disseminated outside of that
entity without the advance written consent of the General Counsel or the
head of the Agency.
D. When it becomes apparent to the Department or federal investigative
agency that any investigative or legal action may result in the disclosure
of classified information or intelligence sources or methods, the Department
or federal investigative agency will, at the earliest possible time, fully
advise and consult with the Agency to determine the appropriate course of
action and the potential harm to intelligence sources and methods by the
contemplated use or disclosure of the classified information. Except in
exigent circumstances no investigative or legal action will be taken without
such advance notice and consultation.
1. `Exigent circumstances' means situations in which a person's life or
physical safety is reasonably believed to be in imminent danger, or
information relating to the national security is reasonably believed to be
in imminent danger of compromise, or expiration of a statute of limitations
is imminent, or loss of essential evidence in any of these cases is
imminent, or a crime is about to be committed, or the opportunity to arrest
a person is about to be lost where there is probable cause to believe that
the person has committed a crime.
2. If, due to exigent circumstances, any investigation or significant
contemplated action in any legal proceeding is taken without advance notice
or consultation, the Department or federal investigative agency, within
twenty-four hours of taking such action, will provide the reporting agency
an explanation of the circumstances requiring that action. Thereafter, there
will be full adherence to the notification and consultation requirements of
these procedures.
3. For purposes of this provision, consultation will include the specific
investigative and legal actions the Department or federal investigative
agency purposes to take and a specification of legal and investigative
issues involved. The purpose of the consultation is to assure an opportunity
for the Agency to provide its judgment to the Department or federal
investigative agency regarding the potential damage, if any, to the national
security of the disclosure or use of the information at issue. During this
process, the Agency will promptly provide as detailed an identification and
analysis as is possible at the time of the potential consequences for the
intelligence sources or methods and for the national security from the
contemplated disclosure or use of the classified information. The Agency
will also
provide any changes to or elaborations of this analysis as soon as they
become evident.
4. If the Agency and the Department or federal investigative agency agree
that the risk of the use or disclosure and any resulting consequences are
acceptable, the contemplated investigative or legal action may commence or
proceed.
5. If the Agency and the Department of Justice or federal investigative
agency are unable to agree as to the appropriate use of classified
information provided pursuant to these procedures by the Agency, each entity
will be responsible for pursuing timely resolution of such issues as may
exist through appropriate channels within their respective organizations.
Each entity will provide notice to the other entity if it intends to seek a
resolution of the issues by a higher authority in the other entity's
department or agency. Where issues remain, they shall be referred to the
Attorney General for final determination after appropriate consultation with
the head of the Agency, and, where appropriate, the Director of Central
Intelligence. The decision of the Attorney General may be appealed to the
President with prior notice to the Attorney General and the Director of
Central Intelligence. While such an appeal is pending, no action will be
taken that would render moot the President's decision.
E. When security considerations warrant such action, any matter may be
reported directly by the head of the Agency to the Attorney General or the
Acting Attorney General, in the manner described in section V above. In
considering such reports, the Attorney General or the Acting Attorney
General may consult with any person whose advice he considers necessary and
who has the required security clearance, provided that the Attorney General
or the Acting Attorney General will consult with the head of the reporting
agency or the General Counsel thereof concerning dissemination of material
designated `Eyes Only.'
F. If requested by the Agency, classified information provided by the Agency
to the Department or a federal investigative agency will, to the maximum
extent possible and consistent with investigative and prosecutive
requirements, be stored by the Agency.
VIII. RELATION TO OTHER PROCEDURES AND AGREEMENTS
A. If the Agency for administrative or security reasons desires to conduct a
more extensive investigation into the activities of its employees relating
to any matter reported pursuant to these procedures, it will inform the
Department or federal investigative agency, as is appropriate. The Agency
may take appropriate administrative, disciplinary, or other adverse action
at any time against any employee whose activities are reported under these
procedures. However, such investigations and disciplinary action will be
coordinated with the appropriate investigative or prosecuting officials to
avoid prejudice to any criminal investigation or prosecution.
B. Nothing in these procedures shall be construed to restrict the exchange
of information among the Agencies in the Intelligence Community or between
those Agencies and law enforcement entities other than the Department of
Justice.
C. If the subject of a referral is an employee of another agency other than
a person subject to the Uniform Code of Military Justice, the Criminal
Division may refer the matter to that agency for preliminary investigation
and possible administrative action. The employing agency will report the
results of any such preliminary investigation under the procedures for
reporting possible crimes by agency employees.
D. Notwithstanding the November 23, 1955, Memorandum of Understanding
between the Department of Defense and the Department of Justice, notice of
crimes which violate both federal criminal statutes and the Uniform Code of
Military Justice shall be given to the Department of Justice as provided.
Thereafter, the handling of matters relating to individuals subject to the
Uniform Code of Military Justice shall be coordinated by the Criminal
Division with the appropriate military service in accordance with existing
agreements between the Departments of Justice and Defense.
WILLIAM FRENCH SMITH,
Attorney General.
WILLIAM J. CASEY,
Director of Central Intelligence.
--
--
Reporting of Federal Crimes Committed by Officers or Employees of Agencies
in the Intelligence Community
Executive Order 12036, 1-706, requires senior officials of the intelligence
community to:
Report to the Attorney General evidence of possible violations of federal
criminal law by an employee of their department or agency . . .
These procedures govern the reporting of possible federal crimes committed
by officers or employees of the intelligence agencies. They are promulgated
under the authority of 28 U.S.C. 535 and E.O. 12036, Sec. 1-706, 3-305.
Except to the extent indicated in paragraph G, infra, they supersede all
previous agreements or guidelines.
A. DEFINITIONS
1. `Officer or employee' shall mean:
a. All persons defined as employees in E.O. 12036, 4-204;
b. former officers or employees when the offense was committed during their
employment; and
c. former officers or employees when a basis for referral exists with
respect to violation of 18 U.S.C. 207.
3. `Basis for referral' shall mean allegations, complaints, or information
tending to show that any officer or employee may have violated a federal
criminal statute that the agency cannot establish as unfounded within a
reasonable time through a preliminary inquiry.
B. DETERMINING BASIS FOR REFERRAL
1. When an agency has received allegations, complaints, or information
tending to show that any officer or employee may have violated a Federal
criminal statute, it shall determine whether a basis for referral exists.
2. In determining a basis for referral, an agency will not attempt to
establish that all elements of the possible violation have occurred or that
a particular employee is responsible before referring the matter to the
Department of Justice.
3. When the allegations, complaints, or information received are not
sufficient to determine whether a basis for referral exists, an agency shall
conduct a preliminary inquiry, limited to the following methods:
a. Interviews with current employees;
b. Examination of the records of the agency;
c. Examination of the records of other agencies;
d. Examination of premises occupied by the agency not constituting a
physical search, physical surveillance, or electronic surveillance; or
e. Under procedures approved by the Attorney General and in conformity with
other legal requirements, physical search, electronic surveillance, or
physical surveillance of officers and employees of the agency on premises
occupied by the agency.
A preliminary inquiry shall not include interviews with persons who are not
current employees of the agency or examination of premises not occupied by
the agency, except that the agency may interview a non-employee for the sole
purpose of determining the truth of a report that such non-employee has made
an allegation or complaint against an agency employee.
C. REFERRAL TO THE DEPARTMENT OF JUSTICE
Referrals shall be made in the following manner:
1. (a) In cases where no public disclosure of classified information or
intelligence source and methods would result from further investigation or
prosecution, and the security of ongoing intelligence operations would not
be jeopardized thereby, the agency will report the matter to the cognizant
office of the Federal Bureau of Investigation, other appropriate United
States Attorney or his designee for an investigative or prosecutive
determination. Cases involving bribery or conflict of interest will be
reported to the Criminal Division.
(b) A record of such referrals and any subsequent agency action to dispose
of the matter shall be maintained by the agency, and on a quarterly basis, a
summary memorandum indicating the type of crime, place and date of referral
and ultimate disposition will be forwarded to the Assistant Attorney
General, Criminal Division, or his designee. Referrals made by covert
facilities to the United States Attorney, the FBI or other Federal
investigative agencies will also be included in the quarterly report with
due regard for protection of the security of said installations.
[Page: H2974]
2. In cases where preliminary investigation has failed to develop an
identifiable suspect and the agency believes that investigation or
prosecution would result in public disclosure of classified information or
intelligence sources or methods or would jeopardize the security of ongoing
intelligence operations, the Criminal Division will be so informed in
writing, following which a determination will be made as to the proper
course of action to be pursued in consultation with the agency and the FBI.
3. (a) In cases where preliminary investigation has determined that there is
a basis for referral of a matter involving an identifiable agency officer or
employee to the Department of Justice, the future investigation or
prosecution of which would result in the public disclosure of classified
information or intelligence sources or methods or would jeopardize the
security of
ongoing intelligence operations, a letter explaining the facts of the matter
in detail will be forwarded to the Criminal Division. The agency will also
forward to the Criminal Division a separate classified memorandum explaining
the security or operational problems which would arise from a criminal
investigation or prosecution, including, but not limited to:
(1) Public disclosure of information needed to prove the offense or to
obtain a search warrant or an electronic surveillance order under chapter
119 of Title 18, United States Code;
(2) Disclosure required by a defense request for discovery of information
under Rule 16 of the Federal Rules of Criminal Procedure, 18 U.S.C. 3500, or
Brady v. Maryland, 373 U.S. 83 (1963); and
(3) Interference with the voluntary provision of cover or other services
necessary for intelligence operations by persons other than employees.
(b) In reporting such matter, the agency shall inform the Criminal Division
of the steps it has taken to prevent a recurrence of similar offenses, if
such action is feasible, as well as those administrative sanctions which may
be contemplated with respect to the prospective criminal defendant.
(c) The Criminal Division, after any necessary consultation with the agency
and the FBI, will make a prosecutive determination, informing the agency in
writing of such determination.
4. Officers or employees who are the subject of such referrals to any
component of the Department of Justice may be identified as John Doe XXX in
any written document associated with the initial referral. The true
identities of such persons will be made available when the Department
determines that they are essential to any subsequent investigation or
prosecution of the matter referred.
D. FURTHER ACTION BY AGENCIES
If, as a result of the preliminary inquiry, the agency desires to conduct a
more extensive investigation for administrative or security reasons, it will
inform the Department of Justice component to which the matter is referred.
The agency may take appropriate administrative, disciplinary, or other
adverse action at any time against any officer or employee whose activities
are reported under these procedures. However, internal agency investigations
and disciplinary action in referred matters will be coordinated with the
appropriate investigative or prosecuting officials to avoid prejudice to any
criminal investigation or prosecution.
E. FORMAT OF REFERRALS
All referrals required by these procedures shall be in writing and in such
detail as the Department of Justice component receiving the referral shall
determine.
F. DIRECT REPORTS TO THE ATTORNEY GENERAL
When the head of an agency within the intelligence community believes that
circumstances of security warrant it, he may directly report to the Attorney
General in writing any matter required to be referred by these procedures,
in lieu of following the reporting procedures of paragraphs C-E, supra.
G. RELATION TO OTHER PROCEDURES AND AGREEMENTS
1. Notwithstanding the November 25, 1955 Memorandum of Understanding between
the Department of Defense and the Department of Justice, notice of crimes
committed by an officer or employee which violate both federal criminal
statutes and the Uniform Code of Military Justice shall be given to the
Department of Justice as provided herein. Thereafter, the investigation and
prosecution of individuals subject to the Uniform Code of Military Justice
shall be conducted as provided by the 1955 Memorandum of Understanding.
2. These procedures do not affect the reporting of possible offenses by
regular, permanent FBI employees to the Office of Professional
Responsibility, Department of Justice.
3. Nothing in these procedures shall be construed to restrict the exchange
of information between agencies in the intelligence community required by
other procedures or agreements made under E.O. 12036.
Griffin B. Bell,
Attorney General.
--
--
Procedures for Reporting Federal Crimes by Non-Employees Under E.O. 12036
1-706
Section 1-706 of Executive Order 12036 requires senior officials of the
intelligence community to:
Report to the Attorney General evidence of possible violations of federal
criminal law by an employee of their department or agency, and report to the
Attorney General evidence of possible violations by other persons of those
federal criminal laws specified in guidelines adopted by the Attorney
General.
These guidelines specify the violations of federal criminal statutes by
non-employees which must be reported and provide reporting procedures.
A. DEFINITIONS
1. `Agency' shall mean:
a. The Central Intelligence Agency;
b. the National Security Agency;
c. the Defense Intelligence Agency;
d. offices within DoD for the Collection of specialized national foreign
intelligence through reconnaissance programs;
B. POLICY AND INTERPRETATION
1. These procedures govern the reporting of information of which the agency
or its employees become aware in the course of performing their lawful
functions. They do not authorize an agency to conduct any investigation or
to collect any information not otherwise authorized by law.
2. These procedures require an employee of an agency in the intelligence
community to report to the general counsel of his department or agency facts
or circumstances that appear to the employee to indicate that a criminal
offense has been committed. Reports to the Department of Justice will be
made by the general counsel of the department or agency or his delegate only
as set forth below.
C. REPORTABLE OFFENSES
Information or allegations showing that the following federal offenses may
have been committed shall be reported:
1. Crimes involving intentional infliction or threat of death or serious
physical harm. Pertinent federal offenses include:
Assault--18 U.S.C. 111-113(a).
Homicide--18 U.S.C. 1111-14, 1116, 2113(e).
Kidnapping--18 U.S.C. 1201.
Congressional assassination, assault or kidnapping--18 U.S.C. 1751.
Threatening the President--18 U.S.C. 871.
2. Crimes that impact on the national security, defense or foreign relations
of the United States. Pertinent federal offenses include:
Communicating classified information--50 U.S.C. 783(b).
Espionage--18 U.S.C. 793-9.
Sabotage--18 U.S.C. 2151-57.
Arms Export Control Act--22 U.S.C. 1778.
Export Control Act--50 U.S.C. 2405.
Neutrality offenses--18 U.S.C. 956-60.
Trading with the Enemy Act--50 App. U.S.C. 5(b), 16.
Acting as an unregistered foreign agent--18 U.S.C. 951.
Communicating classified information--50 U.S.C. 783(b).
Government employee acting for a foreign principal--18 U.S.C. 219.
Communicating restricted data--42 U.S.C. 2274-77.
Espionage--18 U.S.C. 793-98.
Failure to register as foreign espionage trainee--50 U.S.C. 851-55.
Foreign Agents Registration Act--22 U.S.C. 618(a).
Sabotage--18 U.S.C. 2151-57.
Unlawful entering the United States--8 U.S.C. 1325.
The general counsel of the agency, by agreement with the Criminal Division,
may develop categories of specific crimes which need not be reported because
that Particular category could have no significant impact on national
security, defense or foreign relations.
3. Any crime meeting any of the following criteria:
a. The crime is committed in circumstances likely to have a substantial
impact on the national obstruction of justice--18 U.S.C. 1503-06, 1508-10.
Perjury--18 U.S.C. 1621-23.
4. The general counsel may report any other possible offense when he
believes it should be reported to the Attorney General.
5. Any conspiracy to commit a reportable offense shall be reported.
6. The general counsel shall keep records of any matters referred to him
which contain information or allegations of a felony in violation of federal
law which the general counsel determines is not reportable under these
provisions.
D. REPORTING PROCEDURES
When information or allegations are received by an agency that a subject has
committed or is committing a reportable offense, the agency shall transmit
the information or allegations to the Department of Justice in the following
manner:
[Page: H2975]
1. In a case where no public disclosure of classified information or
intelligence sources and methods would result from further investigation or
prosecution, and the security of ongoing intelligence investigations would
not be jeopardized thereby, the agency will report the matter to the
cognizant office of the Federal Bureau of Investigation, other appropriate
Federal investigative agency, or to the appropriate United States Attorney
or his designee for an investigative or prosecutive determination.
2. In a case where further investigation or prosecution would result in the
public disclosure of classified information or intelligence sources and
methods or would jeopardize the conduct of ongoing intelligence operations,
a letter explaining the facts of the matter in detail will be forwarded to
the Criminal Division. The agency will also forward to the Criminal Division
a separate classified memorandum explaining the security or operational
problems which would arise from a criminal investigation or prosecution,
including, but not limited to:
a. Public disclosure of information needed to prove the offense or to obtain
a search warrant or an electronic surveillance order under chapter 119 of
Title 18, United States Code;
b. disclosure required by a defense request for discovery of information
under Rule 16 of the Federal Rules of Criminal Procedure, 18 U.S.C. 3500, or
Brady v. Maryland, 373 U.S. 83 (1963); and
c. interference with the voluntary provision by the subject or persons
associated with the subject of cover or other services necessary for
intelligence operations.
The Criminal Division, after necessary consultation with the agency, will
determine whether to further investigate or prosecute. The agency will be
informed of such determination in writing.
E. If the subject of a referral is an employee of another agency other than
a person subject to the Uniform Code of Military Justice, the Criminal
Division may refer the matter to that agency for preliminary investigation
and possible administrative action. The employing agency will report the
results of any such preliminary investigation under the procedures for
reporting possible crimes by agency employees.
F. If the subject of the referral is a person subject to the Uniform Code of
Military Justice, the Criminal Division will coordinate the handling of the
matter with the appropriate military service in accordance with existing
agreements between the Departments of Justice and Defense.
G. All referrals required by these proceedings shall be in writing and in
such detail as the Department of Justice component receiving the referral
shall determine.
H. When the head of an agency believes that circumstances of security
warrant it, he may directly report to the Attorney General in writing any
matter required to be reported by these procedures in lieu of following the
procedures of paragraphs D-G.
I. Nothing in these procedures shall be construed to restrict the exchange
of information among agencies in the intelligence community required by
other procedures or agreements made under E.O. 12036.
Griffin B. Bell,
Attorney General.
--
--
Memorandum of Understanding: Reporting of Information Concerning Federal
Crimes
I. INTRODUCTION
Section 1.7(a) of Executive Order (E.O.) 12333 requires senior officials of
the Intelligence Community to--
Report to the Attorney General possible violations of federal criminal laws
by employees and of specified federal criminal laws by any other person as
provided in procedures agreed upon by the Attorney General and the head of
the department or agency concerned, in a manner consistent with the
protection of intelligence sources and methods, as specified in those
procedures.
Title 28, United States Code, Section 535(b) requires that--
[a]ny information, allegation, or complaint received in a department or
agency of the executive branch of the Government relating to violations of
title 18 involving Government officers and employees shall be expeditiously
reported to the Attorney General by the head of the department or agency,
unless--
(1) the responsibility to perform an investigation with respect thereto is
specifically assigned otherwise by another provision of law; or
(2) as to any department or agency of the Government, the Attorney General
directs otherwise with respect to a specified class of information,
allegation, or complaint.
This Memorandum of Understanding (MOU) sets forth the procedures by which
each agency and organization within the Intelligence Community shall report
to the Attorney General and to federal investigative agencies information
concerning possible federal crimes by employees of an intelligence agency or
organization, or violations of specified federal criminal laws by any other
person, which information was collected by it during the performance of its
designated intelligence activities, as those activities are defined in E.O.
12333, 1.8-1.13.
II. DEFINITIONS.
A. `Agency,' as that term is used herein, refers to those agencies and
organizations within the Intelligence Community as defined in E.O. 12333,
3.4(f), but excluding the intelligence elements of the Federal Bureau of
Investigation and the Department of the Treasury.
B. `Employee,' as that term is used herein, means:
1. a staff employee, contract employee, asset, or other person or entity
providing service to or acting on behalf of any agency within the
intelligence community;
2. a former officer or employee of any agency within the intelligence
community for purposes of an offense committed during such person's
employment, and for purposes of an offense involving a violation of 18
U.S.C. 207 (Conflict of interest); and
3. any other Government employee on detail to the Agency.
C. `General Counsel' means the general counsel of the Agency or of the
Department of which it is a component or an oversight person designated by
such person to act on his/her behalf, and for purposes of these procedures
may include an Inspector General or equivalent official if agency or
departmental procedures so require or if designated by the agency or
department head.
D. `Inspector General' or `IG' means the inspector general of the Agency or
of the department of which the Agency is a component.
E. `Reasonable basis' exists when there are facts and circumstances, either
personally known or of which knowledge is acquired from a source believed to
be reasonably trustworthy, that would cause a person of reasonable caution
to believe that a crime has been, is being, or will be committed. The
question of which federal law enforcement or judicial entity has
jurisdiction over the alleged criminal acts shall have no bearing upon the
issue of whether a reasonable basis exists.
III. SCOPE
A. This MOU shall not be construed to authorize or require the Agency, or
any person or entity acting on behalf of the Agency, to conduct any
intelligence not otherwise authorized by law, or to collect any information
in a manner not authorized by law.
B. This MOU ordinarily does not require an intelligence agency or
organization to report crimes information that was collected and
disseminated to it by another department, agency, or organization. Where,
however, the receiving agency is the primary or sole recipient of that
information, of if analysis by the receiving agency reveals additional
crimes information, the receiving agency shall be responsible for reporting
all such crimes information in accordance with the provisions of this MOU.
C. This MOU does not in any way alter or supersede the obligation of an
employee of an intelligence agency to report potential criminal behavior by
other employees of that agency to an IG, as required either by statute or by
agency regulations, nor affect any protections afforded any persons
reporting such behavior to an IG. Nor does this MOU affect any crimes
reporting procedures between the IG Offices and the Department of Justice.
D. This MOU does not in any way alter or supersede any obligation of a
department or agency to report to the Attorney General criminal behavior by
Government employees not employed by the intelligence community, as required
by 28 USC 535.
E. This MOU does not affect the obligation to report to the Federal Bureau
of Investigation alleged or suspected espionage activities as required under
Section 811(c) of the Intelligence Authorization Act of 1995.
F. The following crimes information is exempted from the application of this
memorandum if the specified conditions are met:
1. Crimes information that has been reported to an IG; 1
*Footnotes appear at end of Memorandum of Understanding.
2. Crimes information received by a Department of Defense intelligence
component concerning a Defense intelligence component employee who either is
subject to the Uniform Code of Military Justice or is a civilian and has
been accused of criminal behavior related to his/her assigned duties or
position, if (a) the information is submitted to and investigated by the
appropriate Defense Criminal Investigative Organization, and (b) in cases
involving crimes committed during the performance of intelligence
activities, the General Counsel provides to the Department of Justice a
report reflecting the nature of the charges and the disposition thereof;
3. Information regarding non-employee crimes listed in Section VII that is
collected by the intelligence component of a Department also having within
it a law enforcement organization where (a) the crime is of the type that
the Department's law enforcement organization has jurisdiction to
investigate; and (b) the Department's intelligence organization submits that
crimes information to the Department's law enforcement organization for
investigation and further handling in accordance with Department policies
and procedures; 2
4. Crimes information regarding persons who are not employees of the Agency,
as those terms are defined in Section II, that involve crimes against
property in an amount of $1,000 or less, an amount of $500 or less. As to
other relatively minor offenses to which this MOU would ordinarily apply,
but which, in the General Counsel's opinion, do not warrant reporting
pursuant to this MOU, the General Counsel may orally contact the Assistant
Attorney General, Criminal Division, or his/her designee. If the Department
of Justice concurs with that opinion, no further reporting under these
procedures is required. The General Counsel shall maintain an appropriate
record of such contacts with the Department. If deemed appropriate by the
General Counsel, he/she may take necessary steps to pass such information to
the appropriate law enforcement authorities; or
[Page: H2976]
5. Information, other than that relating to homicide or espionage, regarding
crimes that were completed more than ten years prior to the date such
allegations became known to the Agency. If, however, the Agency has a
reasonable basis to believe that the alleged criminal activities occurring
ten or more years previously relate to, or are a part of, a pattern of
criminal activities that continued within that ten year interval, the
reporting procedures herein will apply to those activities.
F. The procedures set forth herein are not intended to affect whether an
intelligence agency reports to state or local authorities activity that
appears to constitute a crime under state law. In the event that an
intelligence agency considers it appropriate to report to state or local
authorities possible criminal activity that may implicate classified
information or intelligence sources or methods, it should inform the AAG, or
the designated Deputy AAG, Criminal Division, in accordance with paragraph
VIII.C, below; the Criminal Division will consult with the intelligence
agency regarding appropriate methods for conveying the information to state
or local authorities. In the event that an intelligence agency considers it
appropriate to report to state or local authorities possible criminal
activity that is not expected to implicate classified information or
intelligence sources or methods, it should nevertheless provide a copy of
such report to the AAG, or to the designated Deputy AAG, Criminal Division.
IV. GENERAL CONSIDERATIONS: ALLEGATIONS OF CRIMINAL ACTS COMMITTED BY AGENCY
EMPLOYEES
A. This Agreement requires each employee of the Agency to report to the
General Counsel or IG facts or circumstances that reasonably indicate to the
employee that an employee of an intelligence agency has committed, is
committing, or will commit a violation of federal criminal law. 3
B. Except as exempted in Section III, when the General Counsel has received
allegations, complaints or information (hereinafter allegations) that an
employee of the Agency may have violated, may be violating, or may violate a
federal criminal statute, that General Counsel should within a reasonable
period of time determine whether there is a reasonable basis to believe that
a federal crime has been, is being, or will be committed and that it is a
crime which, under this memorandum, must be reported. The General Counsel
may, as set forth in Section V, below, conduct a preliminary inquiry for
this purpose. If a preliminary inquiry reveals that there is a reasonable
basis for the allegations, the General Counsel will follow the reporting
procedures set forth in Section VIII, below. If a preliminary inquiry
reveals that the allegations are without a reasonable basis, the General
Counsel will make a record, as appropriate, of that finding and no reporting
under these procedures is required.
V. PRELIMINARY INQUIRY INTO ALLEGATIONS AGAINST AN AGENCY EMPLOYEE
A. The General Counsel's preliminary inquiry regarding allegations against
an Agency employee will ordinarily be limited to the following:
1. Review of materials submitted in support of the allegations;
2. review of Agency indices, records, documents, and files;
3. examination of premises occupied by the Agency;
4. examination of publicly available federal, state, and local government
records and other publicly available records and information;
5. interview of the complainant; and
6. interview of any Agency employee, other than the accused, who, in the
opinion of the General Counsel, may be able to corroborate or refute the
allegations.
B. Where criminal allegations against an Agency employee are subject to this
MOU, an interview of that employee may only be undertaken in compliance with
the following conditions:
1. Where the crime alleged against an Agency employee does not pertain to a
serious felony offense, 4 a responsible Agency official may interview the
accused employee; however, such interview shall only be conducted with the
approval of the General Counsel, the IG, or, as to Defense and military
employees, the responsible military Judge Advocate General or the
responsible Defense Criminal Investigative Organization.
2. Where the crime alleged against an Agency employee is a serious felony
offense, the Agency shall ordinarily not interview the accused employee,
except where, in the opinion of the General Counsel, there are exigent
circumstances 5 which require that the employee be interviewed. If such
exigent circumstances exist, the General Counsel or other attorney in the
General Counsel's office may interview the accused employee to the extent
reasonably necessary to eliminate or substantially reduce the exigency.
3. In all other cases of alleged serious felonies, the General Counsel, or
the General Counsel's designee, may interview the accused employee only
after consultation with the Agency's IG, a Defense Criminal Investigative
Organization (for Defense and military employees), or with the Department of
Justice regarding the procedures to be used during an interview with the
accused employee.
Any interview of an accused employee that is undertaken shall be conducted
in a manner that does not cause the loss, concealment, destruction, damage
or alteration of evidence of the alleged crime, nor result in the
immunization of any statements made by the accused employee during that
interview. The Agency shall not otherwise be limited by this MOU either as
to the techniques it is otherwise authorized to use, or as to its
responsibility to provide for its security functions pursuant to E.O. 12333.
VI. GENERAL CONSIDERATIONS: ALLEGATIONS OF CRIMINAL ACTS COMMITTED BY
NON-EMPLOYEES
A. This MOU requires each employee of the Agency to report, to the General
Counsel or as otherwise directed by the Department or Agency head, facts or
circumstances that reasonably indicate to the employee that a non-employee
has committed, is committing, or will commit one or more of the specified
crimes in Section VII, below.
B. When an Agency has received information concerning alleged violations of
federal law by a person other than an employee of an intelligence agency,
and has determined that the reported information provides a reasonable basis
to conclude that a violation of one of the specified crimes in Section VII
has occurred, is
occurring, or may occur, the Agency shall report that information to the
Department of Justice in accordance with Sections VIII or IX, below.
VII. REPORTABLE OFFENSES BY NON-EMPLOYEES
A. Unless exempted under Section III, above, allegations concerning criminal
activities by non-employees are reportable if they pertain to one or more of
the following specified violations of federal criminal law:
1. Crimes involving intentional infliction or threat of death or serious
physical harm. These include but are not limited to homicide, kidnapping,
hostage taking, assault (including sexual assault), or threats or attempts
to commit such offenses, against any person in the United States or a U.S.
national or internationally protected person (as defined in 18 U.S.C. 1116
(b)(4)), whether in the United States or abroad.
2. Crimes, including acts of terrorism, that are likely to affect the
national security, defense or foreign relations of the United States. These
may include but are not limited to:
a. Espionage; sabotage; unauthorized disclosure of classified information;
seditious conspiracies to overthrow the government of the United States;
fund transfers violating the International Emergency Economic Powers Act;
providing material or financial support to terrorists; unauthorized traffic
in controlled munitions or technology; or unauthorized traffic in, use of,
or contamination by nuclear materials, chemical or biological weapons, or
chemical or biological agents; whether in the United States or abroad;
b. Fraudulent entry of persons into the United States, the violation of
immigration restrictions or the failure to register as a foreign agent or an
intelligence trained agent;
c. Offenses involving interference with foreign governments or interference
with the foreign policy of the United States whether occurring in the United
States or abroad;
d. Acts of terrorism anywhere in the world which target the U.S. government
or its property, U.S. persons, or any property in the United States, or in
which the perpetrator is a U.S. person; aircraft hijacking; attacks on
aircraft or international aviation facilities; or maritime piracy;
e. The unauthorized transportation or use of firearms or explosives in
interstate or foreign commerce.
3. Crimes involving foreign interference with the integrity of U.S.
governmental institutions or processes. Such crimes may include:
a. Activities to defraud the U.S. government or any federally protected
financial institution, whether occurring in the United States or abroad;
b. Obstruction of justice or bribery of U.S. officials or witnesses in U.S.
proceedings, whether occurring in the United States or abroad;
c. Interference with U.S. election proceedings or illegal contributions by
foreign persons to U.S. candidates or election committees;
d. Perjury in connection with U.S. proceedings, or false statements made in
connection with formal reports or applications to the U.S. government, or in
connection with a formal criminal or administrative investigation, whether
committed in the United States or abroad;
e. Counterfeiting U.S. obligations or any other governmental currency,
security or identification documents used in the United States, whether
committed in the United States or abroad; transactions involving stolen
governmental securities or identification documents or stolen or counterfeit
non-governmental securities.
4. Crimes related to unauthorized electronic surveillance in the United
States or to tampering with, or unauthorized access to, computer systems.
5. Violations of U.S. drug laws including: the cultivation, production,
transportation, importation, sale, or possession (other than possession of
user quantities) of controlled substances; the production, transportation,
importation, and sale of precursor or essential chemicals.
[Page: H2977]
6. The transmittal, investment and/or laundering of the proceeds of any of
the unlawful activities listed in this Section, whether committed in the
United States or abroad.
B. Any conspiracy or attempt to commit a crime reportable under this section
shall be reported if the conspiracy or attempt itself meets the applicable
reporting criteria.
C. The Attorney General also encourages the Agency to notify the Department
of Justice when the Agency's other routine collection of intelligence in
accordance with its authorities results in its acquisition of information
about the commission of other serious felony offenses by non-employees,
e.g., violations of U.S. environmental laws relating to ocean and inland
water discharging or dumping, drinking water contamination, or hazardous
waste disposal, and crimes involving interference with the integrity of U.S.
governmental institutions or processes that would not otherwise be
reportable under Section VII.A.3.
VIII. PROCEDURES FOR SUBMITTING SPECIAL CRIMES REPORTS
A. Where the Agency determines that a matter must be the subject of a
special report to the Department of Justice, it may, consistent with
paragraphs VIII.B and VIII.C, below, make such a report (1) by letter or
other, similar communication from the General Counsel, or (2) by electronic
or courier dissemination of information from operational or analytic units,
provided that in all cases, the subject line and the text of such
communication or dissemination clearly reflects that it is a report of
possible criminal activity. The Department of Justice shall maintain a
record of all special crimes reports received from the Agency.
B. Where the Agency determines that a matter must be the subject of a
special report to the Department of Justice; and where the Agency further
determines that no public disclosure of classified information or
intelligence sources and methods would result from further investigation or
prosecution, and the security of ongoing intelligence operations would not
be jeopardized thereby, the Agency will report the matter to the federal
investigative agency having jurisdiction over the criminal matter. A copy of
that report must also be provided to the AAG, or designated Deputy AAG,
Criminal Division.
C. Where the Agency determines that further investigation or prosecution of
a matter that must be specially reported may result in a public disclosure
of classified information or intelligence sources or methods or would
jeopardize the security of ongoing intelligence operations, the Agency shall
report the matter to the AAG or designated Deputy AAG, Criminal Division. A
copy of that report must also be provided to the Assistant Director,
Criminal Investigations or National Security Divisions, Federal Bureau of
Investigation, or in the event that the principal investigative
responsibility resides with a different federal investigative agency, to an
appropriately cleared person of equivalent position in such agency. The
Agency's report should explain the security or operational problems that
would or might arise from a criminal investigation or prosecution.
D. Written documents associated with the reports submitted pursuant to this
section may refer to persons who are the subjects of the reports by
non-identifying terms (such as `John Doe XXX'). The Agency shall advise the
Department of Justice or relevant federal investigative agency of the true
identities of such persons if so requested.
E. It is agreed that, in acting upon information reported in accordance with
these procedures, the Agency, the Department of Justice and the relevant
federal investigative agencies will deal with classified information,
including sources and methods, in a manner consistent with the provisions of
relevant statutes and Executive Orders, including the Classified Information
Procedures Act.
IX. WHEN ROUTINE DISSEMINATION MAY BE USED IN LIEU OF A SPECIAL CRIMES
REPORT
A. Except as set forth in IX.B, below, the Agency may report crimes
information regarding non-employees to the Department of Justice by routine
dissemination, provided that:
1. the crimes information is of the type that is routinely disseminated by
the Agency to headquarters elements of cognizant federal investigative
agencies;
2. the criminal activity is of a kind that is normally collected and
disseminated to law enforcement by the Agency (e.g., drug trafficking, money
laundering, terrorism, or sanctions violations); and
3. the persons or entities involved are members of a class that are
routinely the targets or objects of such collection and dissemination.
If all three of these conditions are met, the Agency may satisfy its crimes
reporting obligation through routine dissemination to the Department of
Justice, Criminal Division, and to all cognizant federal law enforcement
agencies, which shall retain primary responsibility for review of
disseminated information for evidence of criminal activity. In all other
cases, the special reporting procedures in Section VIII shall apply. As
requested by the Department of Justice, the Agency will coordinate with the
Department to facilitate the Department's analytical capabilities as to the
Agency's routine dissemination of crimes information in compliance with this
MOU.
B. Routine dissemination, as discussed in IX.A, above, may not be used in
lieu of the special reporting requirements set forth herein as to the
following categories of criminal activities:
1. Certain crimes involving the intentional infliction or threat of death or
serious physical harm (VII.A.1, above);
2. Espionage; sabotage; unauthorized disclosure of classified information;
and seditious conspiracies to overthrow the government of the United States
(VII.A.2.a, above); and
3. Certain crimes involving foreign interference with the integrity of U.S.
governmental institutions or processes (VII.A.3.b and c, above).
X. OTHER AGENCY RESPONSIBILITIES
A. The Agency shall develop internal procedures in accordance with the
provisions of Sections VIII and IX for the reporting of criminal information
by its employees as required under Sections IV.A and VI.A.
B. The Agency shall also establish initial and continuing training to
ensure that its employees engaged in the review and analysis of collected
intelligence are knowledgeable of and in compliance with the provisions of
this MOU.
XI. RELATION TO OTHER PROCEDURES AND AGREEMENTS
A. If the Agency desires, for administrative or security reasons, to conduct
a more extensive investigation into the activities of an employee relating
to any matter reported pursuant to this MOU, it will inform the Department
of Justice and the federal investigative agency to which the matter was
reported. The Agency may also take appropriate administrative, disciplinary,
or other adverse action at any time against any employee whose activities
are reported under these procedures. However, such investigations or adverse
actions shall be coordinated with the proper investigative or prosecuting
officials to avoid prejudice to any criminal investigation or prosecution.
B. Nothing in these procedures shall be construed to restrict the exchange
of information among the Agencies in the Intelligence Community or between
those Agencies and law enforcement entities other than the Department of
Justice.
C. This MOU supersedes all prior crimes reporting memoranda of understanding
executed pursuant to the requirements of E.O. 12333. To the extent that
there exist any conflicts between other Agency policies or directives and
the provisions herein, such conflicts shall be resolved in accordance with
the provisions of this MOU. However, this MOU shall not be construed to
modify in any way the August 1984 Memorandum of Understanding between the
Department of Defense and the Department of Justice relating to the
investigation and prosecution of certain crimes.
D. The parties understand and agree that nothing herein shall be construed
to alter in any way the current routine dissemination by the Agency of
intelligence information, including information regarding alleged criminal
activities by any person, to the Department of Justice or to federal law
enforcement agencies.
XII. MISCELLANEOUS
A. This MOU shall become effective as to each agency below as of the date
signed by the listed representative of that agency.
B. The Intelligence-Law Enforcement Policy Board, within one year of the
date of the effective date hereof, and as it deems appropriate thereafter,
will appoint a working group consisting of an equal number of
representatives from the intelligence and law enforcement communities,
including the Criminal Division. That working group shall do the following:
1. review the Agency's implementation of Sections III.F and IV.B, hereof;
2. consider whether the crimes reporting requirements of E.O. 12333 and
other authorities are being met through the operation of this MOU;
3. review each of the provisions of this MOU and determine what, if any,
modifications thereof should be recommended to the Policy Board, or its
successor; and
4. issue a report to the Policy Board of its findings and recommendations in
each of the foregoing categories.
C. The Policy Board in turn shall make recommendations to the Attorney
General, the Director of Central Intelligence, and the heads of the affected
agencies concerning any modifications to the MOU that it considers
necessary.
JANET RENO,
Attorney General.
JOHN DEUTSCH,
Director of Central Intelligence.
MICHAEL F. MUNSON,
(For Director, Defense Intelligence Agency).
KENNETH E. BAKER,
Director, Office of Non-Proliferation and National Security, Department of
Energy.
WILLIAM J. PERRY,
Secretary of Defense.
J.M. MCCONNELL,
Director, National Security Agency.
TOBY T. GATI,
Assistant Secretary of State, Intelligence and Research.
[Page: H2978]
FOOTNOTES
1 If, however, the IG determines that the reported information is not
properly subject to that office's jurisdiction, but that such information
may be reportable pursuant to this MOU, the IG may forward the information
to the DOJ in compliance with these procedures. Alternatively, the IG may
transmit the information to the Agency's General Counsel for a determination
of what response, if any, is required by this MOU.
2 This MOU does not affect the crimes reporting obligations of any law
enforcement and other non-intelligence components of a department, agency,
or organization.
3 When a General Counsel or IG has received information concerning alleged
violations of federal law by an employee of another intelligence community
agency, and those violations are not exempted under section III.E.4, hereof,
the General Counsel shall notify in writing the General Counsel of the
accused employee's agency. The latter General Counsel must then determine
whether this MOU requires the allegations to be reported to the Department
of Justice.
4 A `serious felony offense' includes any offense listed in Section VII,
hereof, violent crimes, and other offenses which, if committed in the
presence of a reasonably prudent and law-abiding person, would cause that
person immediately to report that conduct directly to the police. For
purposes of this MOU, crimes against government property that do not exceed
$5,000 and are not part of a pattern of continuing behavior or of a criminal
conspiracy shall not be considered serious felony offenses.
5 `Exigent circumstances' are circumstances requiring prompt action by the
Agency in order to protect life or substantial property interests; to
apprehend or identify a fleeing offender; or to prevent the compromise,
loss, concealment, destruction, or alteration of evidence of a crime.
[TIME: 1530]
The CHAIRMAN. The time of the gentlewoman from California (Ms. Waters) has
expired.
(On request of Mr. Dicks, and by unanimous consent, Ms. Waters was allowed
to proceed for 2 additional minutes.)
Mr. DICKS. Mr. Chairman, if the gentlewoman would yield to me, I appreciate
very much the hard work that the gentlewoman from California has put into
this, an enormous effort on her part.
I regret that, because of a technicality, the amendment will not be
accepted. I guarantee the gentlewoman we will work with her to make certain
that we do everything we can to come up with a strategy to be certain that
the understanding that is now in place with the Attorney General is
strengthened, so that, in cases where there has been illegal activity or
problems, that they must be reported to the Attorney General.
I know that is the thrust of your amendment. As you know, our committee is
still involved in our investigation. It may well be one of the conclusions
of our investigation that we need to strengthen this area.
I pledge to the gentlewoman from California that I will work with her to get
a satisfactory solution. Again, I appreciate the gentlewoman's endeavors and
hard work here.
Ms. WATERS. Mr. Chairman, I would like to thank the gentleman from
Washington (Mr. Dicks).
Mr. GOSS. Mr. Chairman, will the gentlewoman from California yield?
Ms. WATERS. Yes, I yield to the gentleman from Florida.
Mr. GOSS. Mr. Chairman, I echo what the ranking member has said. I think the
gentlewoman from California is right on in an area of critical importance;
there is no doubt about that.
We are in the middle of the investigation, as the gentlewoman knows. We are
going to have recommendations. Certainly this is an area of concern. I do
not know what those recommendations will be, but I assure the gentlewoman
that her thoughts and her input on this are being accepted, listened to, and
we will be considering them as we go forward with the other information we
get in our investigation.
Ms. WATERS. Mr. Chairman, I would like to thank the chairman and our ranking
member and say to our ranking member that I really appreciate the fact that
he has at least been able to listen to some of the ideas that I have brought
to that committee.
I know that the gentleman is, by far, one of the most knowledgeable in this
area and that some of the things that I am raising are things that challenge
conventional wisdom. But the gentleman has been very cooperative, and I
appreciate it.