Thursday, December 31, 2009

India's Reported WMD Transfers to Iran

Entities in India and Iran appear to have engaged in very limited nuclear, chemical and
missile-related transfers over the years. There are no publicly available indications of
activities related to biological weapons. In the early 1990s, when Iran actively sought nuclear-related
assistance and technology from many foreign sources, India appears to have played
only a minor role in contrast to other states. India signed an agreement in November 1991
to provide a 10-megawatt research reactor to Tehran, but canceled under pressure from the
United States. Nonetheless, India reportedly trained Iranian nuclear scientists in the 1990s.15
More recently, India’s Foreign Minister Jaswant Singh stated in December 2003 that India
“has and would continue to help Iran in its controversial bid to generate nuclear energy.”16

From 1998 to 2003, the United States has imposed nonproliferation sanctions on
several different Indian entities for chemical and biological-weapons related transfers to
Iraq.17 In 2004, the United States imposed sanctions on two Indian scientists for nuclear-related
transfers to Iran: Dr. C. Surendar (sanctions on Dr. Surendar were lifted in
December 2005) and Dr. Y.S.R. Prasad. Both scientists were high-ranking officials in
the Nuclear Power Corporation of India, Limited (NPCIL). Indian officials protested,
stating that cooperation had taken place under the auspices of the IAEA Technical
Cooperation program. Other reports suggest that the scientists, who had served as
Chairman and Managing Director of the NPCIL, which runs India’s power reactors,
passed information to Iran on tritium extraction from heavy water reactors.18 In December
2005, sanctions were imposed on Sabero Organic Chemicals Gujarat Ltd. and Sandhya
Organic Chemicals Pvt. Ltd. for transfers of chemical-related items to Iran. In July 2006,
sanctions were imposed on two more chemical manufacturers in India for transfers to Iran
— Balaji Amines and Prachi Poly Products.

In the chemical area, there is one confirmed transfer of 60 tons of thionyl chloride,
a chemical that can be used in the production of mustard gas, from India to Iran in March
1989.19 Other shipments in that timeframe reportedly were halted under U.S. pressure.
India does not appear in the CIA’s unclassified nonproliferation report to Congress as a
supplier of chemical-weapons-related exports to Iran since the report began publication
in 1997. India signed the Chemical Weapons Convention in 1993 and deposited its
instrument of ratification until 1996.

Endnotes

15 See here.

16 “India Denies Nuclear Cooperation with Iran,” Agence France Presse, December 13, 2003.

17 This discussion taken from a response to Questions for the Record Submitted to Secretary of State Condoleezza Rice by Senator Richard Lugar (#2), Senate Foreign Relations Committee, April 5, 2006.

18 John Larkin and Jay Solomon, “As Ties Between India and Iran Rise, U.S. Grows Edgy,” Wall Street Journal, March 24, 2005.

19 Thionyl chloride is a Schedule 3 chemical under the Chemical Weapons Convention. It has military and civilian uses, and is widely used in the laboratory and in industry.

Wednesday, December 30, 2009

India's Nonproliferation Record

In its semi-annual, unclassified report in 2000 to Congress on the acquisition of
technology relating to weapons of mass destruction, the CIA identified India, along with
Iran and Pakistan, as a “traditional recipient of WMD and missile technology” that could
emerge as a new supplier of technology and expertise.14 The unclassified report also
noted that “private companies, scientists, and engineers in Russia, China, and India may
be increasing their involvement in WMD- and missile-related assistance, taking advantage
of weak or unenforceable national export controls and the growing availability of
technology.” In 2001, the unclassified CIA report noted that “We are increasingly
concerned about the growth of ‘secondary proliferation’ from maturing state-sponsored
programs, such as those in India, Iran, North Korea, and Pakistan.”

Endnotes

14 Unclassified Report to Congress on the Acquisition of Technology Relating to Weapons of Mass Destruction and Advanced Conventional Munitions, 1 July Through 31 December 2000.

Tuesday, December 29, 2009

Congressional Activity Regarding CIA Paramilitary Activities

109th Congress
The 109th Congress did not address this issue legislatively. On November 23, 2004, President
Bush issued a letter requiring the Secretary of Defense and the Director of Central Intelligence to
review matters relating to Recommendation 32 and submit their advice to him by February 23,
2005. In unclassified testimony to the Senate Select Committee on Intelligence in February 2005,
the Director of the CIA testified that the CIA and DOD disagreed with the 9/11 Commission’s
recommendation.14 In June of 2005 it was reported that the Secretary of Defense and the Director
of the Central Intelligence Agency responded to the President, stating that “neither the CIA nor
DOD endorses the commission’s recommendation on shifting the paramilitary mission or
operations.”15 The Administration reportedly rejected the 9-11 Commission’s recommendation to
shift the responsibility for paramilitary operations to DOD.16

110th Congress
The 110th Congress saw the enactment of P.L. 110-53, Implementing Recommendations of the
9/11 Commission Act of 2007 which did not address either paramilitary operations by CIA or
special operations by DOD. Opposition by the Pentagon, the Intelligence Community, and the
Bush Administration undoubtedly affected the congressional response to the 9/11 Commission’s
recommendation to vest responsibilities for paramilitary operations in DOD. CIA’s reputation
may have also been assisted by the generally favorable assessments given to the Agency’s post-
9/11 performance, especially in the initial phases of the Afghan campaign that led to the collapse
of the Taliban regime in December 2001.

111th Congress
Although most observers believe that there remains little inclination among Members to transfer
responsibilities for all paramilitary operations out of CIA, some Members have expressed
concerns about apparent blurring of lines between DOD clandestine operations and CIA
intelligence-gathering operations.17

Endnotes

14 Transcripts, Senate Select Committee on Intelligence, Subject: National Security Threats to the United States, Federal New Service, Feb. 16, 2005, p. 29.

15 John J. Lumpkin, “Rumsfeld, Goss Oppose DOD Assumption of CIA Paramilitary Covert Operations,” Army Times, June 29, 2005.

16 Douglas Jehl, “White House is Said to Reject Panel’s Call for a Greater Pentagon Role in Covert Operations,” New York Times, June 28, 2005.

17 See CRS Report RL33715, Covert Action: Legislative Background and Possible Policy Questions, by Alfred Cumming; also, U.S. Congress, House Permanent Select Committee on Intelligence, Intelligence Authorization Act for Fiscal Year 2010, to accompany H.R. 2701, 111th Cong., 1st sess., June 26, 2009, H.Rept. 111-186 (Washington: GPO, 2009), pp. 48-49.

Monday, December 28, 2009

CIA Paramilitary Operations: Issues for Congress

Oversight Issues
Congress may choose to review past or current paramilitary operations undertaken by the CIA
and might also choose to assess the extent of coordination between the CIA and DOD. P.L. 108-
458 required that a report be submitted to defense and intelligence committees by June 2005
describing procedures established in regard to coordination and deconfliction of CIA and DOD
operations. That report provided an opportunity to indicate how initiatives by the executive
branch have addressed relevant issues.

CIA has not maintained a sizable paramilitary force “on the shelf.” When directed, it has built
paramilitary capabilities by using its individuals, either U.S. or foreign, with paramilitary
experience under the management of its permanent operations personnel in an entity known as the
Special Activities Division. The permanent staff would be responsible for planning and for
maintaining ties to former CIA officials and military personnel and individuals (including those
with special language qualifications) who could be employed should the need arise. Few
observers doubt that there is a continuing need for coordination between the CIA and DOD
regarding paramilitary capabilities and plans for future operations. Furthermore, many observers
believe that the CIA should concentrate on “filling the gaps,” focusing on those types of
operations that DOD is likely to avoid. Nevertheless, they view this comparatively limited set of
potential operations to be a vitally important one that should not be neglected or assigned to
DOD. There may be occasions when having to acknowledge an official U.S. role would preclude
operations that were otherwise considered vital to the national security; the CIA can provide the
deniability that would be difficult, if not impossible, for military personnel.12

Potential Legal Considerations
Some experts believe that there may be legal difficulties if SOF are required to conduct covert
operations. One issue is the legality of ordering SOF personnel to conduct covert activities that
would require them to forfeit their Geneva Convention status to retain deniability. To operate with
deniability, SOF could be required to operate without the protection of a military uniform and
identification card which affords them combatant status under the Geneva Convention if
captured. Also, covert operations can often be contrary to international laws or the laws of war
and U.S. military personnel are generally expected to follow these laws.13

Traditionally, the public text of intelligence legislation has included few provisions regarding
paramilitary operations; levels of funding and other details are included in classified annexes
which are understood to have the force of law. The House and Senate Intelligence Committees do
have considerable influence in supporting or discouraging particular covert actions. In a few cases
Congress has formally voted to deny funding to ongoing covert operations. Special Forces,
however, fall under the House and Senate Armed Services Committees, and it is unclear how
Congress would handle oversight if covert operations are shifted to SOF as well as how disputes
between the intelligence and armed services committees would be dealt with.

Endnotes

12 See U.S. Congress, Senate Select Committee on Intelligence, Authorizing Appropriations for Fiscal Year 1991, 102nd
Cong., 1st sess., S.Rept. 102-85, pp. 42-48.

13 Cole Kathryn Stone, All Necessary Means—Employing CIA Operatives in a Warfighting Role Alongside Special
Operations Forces, U.S. Army War College Strategy Research Project, July 4, 2003, p. 13.

Sunday, December 27, 2009

Potential Impacts of Special Operations Forces (SOF) and CIA Paramilitary Operations

Diminished CIA Intelligence Capabilities
Some observers suggest that a capability to plan and undertake paramilitary operations is directly
related to the Agency’s responsibility to obtain intelligence from human sources. Some
individuals and groups that supply information may also be of assistance in undertaking or
supporting a paramilitary operation. If CIA were to have no responsibilities in this area, however,
certain types of foreign contacts might not be exploited and capabilities that have proven
important (in Afghanistan and elsewhere) might erode or disappear.8

Additional Strain on SOF
Some question if this proposed shift in responsibility would place additional strains on SOF who
are extensively committed worldwide. Others argue that SOF lack the experience and requisite
training to conduct covert operations.9 They suggest that if SOF do undertake covert operations
training, that it could diminish their ability to perform their more traditional missions.

A Reduction in Flexibility
The 9/11 Report notes the CIA’s “reputation for agility in operations,” as well as the military’s
reputation for being “methodical and cumbersome.”10 Some experts question if DOD and SOF
are capable of operating in a more agile and flexible manner. They contend that the CIA was able
to beat SOF into Afghanistan because they had less bureaucracy to deal with than did SOF, which
permitted them to “do things faster, cheaper, and with more flexibility than the military.”11 Some
are concerned that if SOF takes over responsibility for clandestine and covert operations that they
will become less agile and perhaps more vulnerable to bureaucratic interference from defense
officials.

SOF Funding Authority
Section 1208 of P.L. 108-375 permits SOF to directly pay and equip foreign forces or groups
supporting the U.S. in combating terrorism. Although not a recommendation in the 9/11
Commission’s report, many feel that this authority will not only help SOF in the conduct of
unconventional warfare, but could also be a crucial tool should they become involved in covert or
clandestine operations. In Afghanistan, SOF did not have the authority to pay and equip local
forces and instead relied on the CIA to “write checks” for needed arms, ammunition, and
supplies.

Endnotes

8 See U.S. Congress, House of Representatives, Permanent Select Committee on Intelligence, IC21: Intelligence
Community in the 21st Century, Staff Study, 104th Cong., 2d sess., April 9, 1996, pp. 201-202.

9 Kibbe, p. 113.

10 The 9/11 Commission Report, p. 416.

11 Kibbe, p. 112.

Iran: Patterns of Assassination

SECRET
October 1994

Iran's policy of assassinating oppositionists has changed little under President Ali Hashemi Rafsanjani. As the accompanying graphics show, the number of assassinations conducted by Iran has stayed roughly constant during Rafsanjani's tenure. Since 1989, Iran has carried out an average of five assassinations annually, and groups supported by Tehran--particularly radical Turkish Islamists--average another two killings annually.

Key targets have remained largely unchanged during Rafsanjani's tenure. Most Iranian assassination targets are members of the Mojahedin-e Khalq or the Kurdish Democratic Party of Iran (KDP-I). Iran attacks these two groups much more frequently than the third key Iranian target, supporters of the son of the former Shah of Iran. Some specific targets have changed to adapt to alterations in Iranian foreign policy: Saudi diplomats were attacked during 1989 and 1990--shortly after Saudi Arabia executed the Kuwaiti Shia responsible for bombings at the hajj in 1989--but have not been targeted since.

Surrogates
Iran rarely relies on surrogates to conduct assassinations of Iranian oppositionists.

Iran typically relies on surrogates for attacks on non-Iranians. Turkish Islamic groups supported by Iran, for example, are responsible for killing a handful of secular Turkish journalists and a member of Parliament since 1989. In addition, attacks on foreigners in Turkey--including the attempted murder of Jewish businessman Jak Kamhi (1993) and the bombings that killed US serviceman Victor Marvick (1991) and Israeli security officer Ehud Sadan (1992)--have been linked to Islamic groups backed by Iran.

Venues
Although the pace and targets of Iranian assassinations are not changing significantly, a review of killings since 1989 suggests that Iran is killing fewer oppositionists in Europe and more in Southwest Asia, particularly Turkey and Iraq (see graphic on regional distribution of assassinations). We suspect this change results from Iran's interest in protecting its diplomatic and economic initiatives in Europe. We note that the drop in assassinations in Europe began in 1993, when Iran began experiencing difficulties in repaying foreign loans and the United States increased pressure on European countries to halt credits to Iran. Countries surrounding Iran, particularly Turkey, Iraq, and Pakistan, offer a wealth of targets, and killings in those countries result in less diplomatic backlash for Iran than assassinations in Europe.

Despite the apparent shift from Europe and the increased focus on assassinations in Southwest Asia, we have noted several suspicious murders of oppositionists in Europe during the past year. We cannot confirm that they were carried out by Iran, and we have not included them in our statistics. These attacks include:
  • 17 January 1994, Bagarmossen, Sweden. A member of the KDP-I was severely injured by a letter-bomb addressed to his wife, also a KDP-I member, according to defense attache reporting.
  • 11 October 1994, Oslo, Norway. William Nygaard, Norwegian publisher of Salman Rushdie's novel The Satanic Verses, was shot near his home.

Saturday, December 26, 2009

CIA Paramilitary Operations: 9/11 Report Recommendations

Recommendation 32 of the 9/11 Commission report states: “Lead responsibility for directing and
executing paramilitary operations, whether clandestine or covert, should shift to the Defense
Department. There it should be consolidated with the capabilities for training, direction, and
execution of such operations already being developed in the Special Operations Command.” The
9/11 Commission’s basis for this recommendation appears to be both performance and cost-based.
The report states that the CIA did not sufficiently invest in developing a robust capability
to conduct paramilitary operations with U.S. personnel prior to 9/11, and instead relied on
improperly trained proxies (foreign personnel under contract) resulting in an unsatisfactory
outcome. The report also states that the United States does not have the money or people to build
“two separate capabilities for carrying out secret military operations,” and suggests that we
should “concentrate responsibility and necessary legal authorities in one entity.”

Some observers question whether procedures are in place to insure overall coordination of effort.
Press reports concerning an alleged lack of coordination during Afghan operations undoubtedly
contributed to the 9/11 Commission’s recommendation regarding paramilitary operations.7
Although such accounts have been discounted by some observers, the Intelligence Reform and
Terrorism Prevention Act (P.L. 108-458) included a provision (Section 1013) that requires DOD
and CIA to develop joint procedures “to improve the coordination and deconfliction of operations
that involve elements” of the CIA and DOD. When separate missions are underway in the same
geographical area, the CIA and DOD are required to establish procedures to reach “mutual
agreement on the tactical and strategic objectives for the region and a clear delineation of
operational responsibilities to prevent conflict and duplication of effort.”

Endnotes

7 See, for instance, Jonathan Weisman, “CIA, Pentagon Feuding Complicates War Effort,” USA Today, June 17, 2002,
p. 11. Another account cites CIA claims that the DOD command process is “bureaucratic and slow-rolling because of
an execution-by-committee process;” as well as complaints by DOD officials that in past conflicts little information
acquired by CIA “could be used by the military for strike activities because it disappeared into the black hole of the
intelligence universe.” See David A. Fulghum, “CIA Trigger Men Trouble Military,” Aviation Week & Space
Technology, Nov. 26, 2001, p. 39.

Friday, December 25, 2009

A Brief History of CIA and Special Operations Forces (SOF) Paramilitary Operations

CIA
In addition to acquiring intelligence to support US military operations from the Korean War era to
Iraq today, the CIA has also worked closely alongside DOD personnel in military operations. On
occasion it has also conducted clandestine military operations apart from the military. One
example was the failed Bay of Pigs landing in Cuba in 1961. Especially important was a
substantial CIA-managed effort in Laos in the 1960s and 1970s to interdict North Vietnamese
resupply efforts. The CIA was directed to undertake this effort in large measure to avoid the onus
of official U.S. military intervention in neutral Laos. The CIA’s paramilitary operations in
Afghanistan in 2001 have been widely described; CIA officers began infiltrating Afghanistan
before the end of September 2001 and played an active role alongside SOF in bringing down the
Taliban regime by the end of the year. According to media reports, the CIA has also been
extensively involved in operations in Iraq in support of military operations.3

SOF
SOF have reportedly been involved in clandestine and covert paramilitary operations on
numerous occasions since the Vietnam War. Operations such as the response to the TWA 847 and
Achille Lauro hijackings in 1985, Panama in 1989, Mogadishu in 1993, and the Balkans in the
late 1990s have become public knowledge over time but other operations reportedly remain
classified to this day.4 Some speculate that covert paramilitary operations would probably become
the responsibility of a number of unacknowledged special operations units believed to exist
within USSOCOM.5

Endnotes

3 See Barton Gellman and Dafna Linzer, “Afghanistan, Iraq: Two Wars Collide,” Washington Post, Oct. 22, 2004, p. A1; Bob Woodward, Plan of Attack (New York: Simon & Schuster, 2004), especially pp. 301-306, 373-376; Gary C. Schroen, First In: An Insider’s Account of How the CIA Spearheaded the War on Terror in Afghanistan (New York: Ballantine Books, 2005).

4 Col. John T. Carney, Jr. and Benjamin F. Schemmer, No Room for Error: The Covert Operations of America’s Special Tactics Units from Iran to Afghanistan, 2002, pp. ix -x.

5 Jennifer D. Kibbe, “The Rise of the Shadow Warriors,” Foreign Affairs, March/April 2004, vol. 83, no. 2, p. 110.

Thursday, December 24, 2009

Background and Analysis in Intelligence Issues

The attacks on the World Trade Center and the Pentagon on September 11, 2001, dramatically
demonstrated the intelligence threats facing the United States in the new century. In response,
Congress approved significantly larger intelligence budgets and, in December 2004, passed the
most extensive reorganization of the Intelligence Community since the National Security Act of
1947. The Intelligence Reform and Terrorism Prevention Act of 2004 (hereafter: the “Intelligence
Reform Act”) (P.L. 108-458) created a Director of National Intelligence (separate from the
Director of the Central Intelligence Agency) who heads the Intelligence Community, serves as the
principal intelligence adviser to the President, and oversees and directs the acquisition of major
collections systems. As long urged by some outside observers, one individual is now able to
concentrate on the Intelligence Community as a whole and possesses statutory authorities for
establishing priorities for budgets, for directing collection by the whole range of technical
systems and human agents, and for the preparation of community-wide analytical products.

P.L. 108-458 was designed to address the findings of the National Commission on Terrorist Attacks
Upon the United States, known as the 9/11 Commission, that there has been inadequate coordination
of the national intelligence effort and that the Intelligence Community, as then-organized, could not
serve as an agile information gathering network in the struggle against international terrorists. The
Commission released its report in late July 2004 and Congress debated its recommendations through
the following months. A key issue was the extent of the authorities of the DNI, especially with regard
to budgeting for technical collection systems managed by Defense Department agencies. In the end,
many of the recommendations of the 9/11 Commission regarding intelligence organization were
adopted after a compromise provision was included that called for implementing the act “in a manner
that respects and does not abrogate” the statutory authorities of department heads.

On April 21, 2005, the Senate confirmed the nominations of John D. Negroponte, who had served
as Ambassador to Iraq, as DNI and Lt. General Michael V. Hayden, then Director of the National
Security Agency, as Deputy DNI. (In May 2006 Hayden became Director of the CIA.) On
February 7, 2007, retired Navy Vice Admiral J. Michael McConnell was confirmed by the Senate
as Negroponte’s successor as DNI. Retired Admiral Dennis C. Blair was confirmed as the third
DNI on January 28; Leon C. Panetta, former House Member and Director of the Office of
Management and Budget under President Clinton, was confirmed as CIA Director on February
12.

The Roles and Mission of CIA and Special Operations Forces (SOF)

USSOCOM was established by Congress in 1987 (P.L. 99-661, 10 U.S.C. §167). USSOCOM’s
stated mission is to plan, direct and execute special operations in the conduct of the War on
Terrorism in order to disrupt, defeat, and destroy terrorist networks that threaten the United
States.2

The CIA was established by the National Security Act of 1947 (P.L. 80-253) to collect
intelligence through human sources and to analyze and disseminate intelligence from all sources.
It was also to “perform such other functions and duties related to intelligence affecting the
national security as the President or the National Security Council may direct.” This opaque
phrase was, within a few months, interpreted to include a range of covert activities such as those
that had been carried out by the Office of Strategic Services (OSS) during World War II. Although
some observers long maintained that covert actions had no statutory basis, in 1991 the National
Security Act was amended (by P.L. 102-88) to establish specific procedures for approving covert
actions and for notifying key Members of Congress.

The statutory definition of covert action (“activity or activities of the United States Government
to influence political, economic, or military conditions abroad, where it is intended that the role of
the United States Government will not be apparent or acknowledged publicly....”) is broad and
can include a wide range of clandestine efforts—from subsidizing foreign journals and political
parties to participation in what are essentially military operations. In the case of paramilitary
operations, there is a clear potential for overlap with activities that can be carried out by DOD. In
general, the CIA would be designated to conduct operations that are to be wholly covert or
disavowable. In practice, responsibilities for paramilitary operations have been assigned by the
National Security Council on a case-by-case basis.

Endnotes

2 Taken from United States Special Operation Forces Posture Statement 2003-2004, U.S. Special Operations Command, pp. 4-10.

Wednesday, December 23, 2009

Most Recent Developments in Intelligence Issues

On September 16, the Senate approved an amended version of the FY2010 Intelligence
Authorization bill (S. 1494) on voice vote. The bill would require Senate confirmation of future
nominees to head the National Security Agency (NSA), the National Reconnaissance Office
(NRO), the National Geospatial-Imagery Agency (NGA), and to serve as Deputy Director of the
Central Intelligence Agency (CIA). It would also strengthen the role of the Director of National
Intelligence (DNI) in managing acquisitions of intelligence systems. The two intelligence
committees are to be kept informed of all covert actions and other intelligence activities; if the
Executive Branch intends not to inform all members of the committees, the committees are to be
advised of the “main features” of the activity in a form that could be accessible to all committee
members. In a provision that has been under consideration for some years, the bill would
establish a statutory Inspector General for the entire Intelligence Community. It would also
require that the Administration disclose the amount requested in the annual budget for the
National Intelligence Program. At the request of the Administration, the Senate Intelligence
Committee separated issues of terrorist detention and interrogation from the bill and indicated an
intention to address these issues in separate legislation. Differences over these issues had
contributed to the inability to enact intelligence authorization legislation since 2004. Although
details of satellite programs are contained in the classified annex to the accompanying Report
(S.Rept. 111-55), the legislation recommends “a more capable and more affordable imagery
architecture” than currently exists with some observers suggesting that provisions in S. 1494
differ significantly from provisions in defense appropriations bills currently under consideration.

On June 26, the House Intelligence Committee reported (H.Rept. 111-186), its version of the
FY2010 Intelligence Authorization Act, H.R. 2701. If enacted, the legislation would curtail
implementation of the Defense Civilian Intelligence Personnel System, require that the President
brief intelligence committees on both planned intelligence activities and covert actions and
maintain records of which Members had been informed. The bill would also require that the
Senate confirm nominees to head the NRO and NSA (but not the NGA); the bill establishes the
position of deputy director of the CIA but does not require Senate confirmation for filling this
position. The bill would also establish a statutory Inspector General for the Intelligence
Community. The Administration criticized several provisions in the bill and threatened a veto of
provisions that would alter current law that permits notification of covert actions to only the
“Gang of Eight,” rather than the full membership of the two intelligence committees. Information
could be limited only if one of the committees determines that not all of its members are required
to a particular covert action finding.

On March 5 the Chairman and Vice Chairman of the Senate Intelligence Committee announced
an review of the CIA’s detention and interrogation program which is expected to take a year. On
April 16 the Administration released key memoranda from the Justice Department’s Office of
Legal Counsel on the background of the program.

Media accounts indicate that the two intelligence committees will also investigate reports that the
National Security Agency gathered communications of U.S. persons in the process of adjusting its
practices in accordance with surveillance legislation enacted in 2008.

What Are Special Operations and Paramilitary Operations?

The U.S. strategy in pursuing the war on international terrorism involves a variety of
missions conducted by military and civilian intelligence personnel characterized as
“special operations” or paramilitary operations. The separate roles of the Department of
Defense (DOD) and the Central Intelligence Agency (CIA) are not always clearly reflected in
media accounts and at times there has been considerable operational overlap. Proposals such as
those made by the 9/11 Commission to change organizational relationships will, however, be
evaluated on the basis of separate roles and missions, operating practices, and relevant statutory
authorities.

DOD defines special operations as “operations conducted in hostile, denied, or politically
sensitive environments to achieve military, diplomatic, informational, and/or economic objectives
employing military capabilities for which there is no broad conventional force requirement.”1

DOD defines paramilitary forces as “forces or groups distinct from the regular armed forces of
any country, but resembling them in organization, equipment, training or mission.” In this report,
the term “paramilitary operations” will be used for operations conducted by the CIA whose
officers and employees are not part of the armed forces of the United States. (In practice, military
personnel may be temporarily assigned to the CIA and CIA personnel may temporarily serve
directly under a military commander.)

In general, special operations are distinguishable from regular military operations by degree of
physical and political risk, operational techniques, and mode of employment among other factors.
DOD special operations are frequently clandestine—designed in such a way as to ensure
concealment; they are not necessarily covert, that is, concealing the identity of the sponsor is not
a priority. The CIA, however, conducts covert and clandestine operations to avoid directly
implicating the U.S. Government.

Endnotes

1 Definitions are from Joint Publication 1-02, “Department of Defense Dictionary of Military and Associated Terms,” Apr. 12, 2001, as amended through Oct. 7, 2004.

Tuesday, December 22, 2009

Possible Gang of Eight Options for Sensitive Covert Action Notifications

The 111th Congress, in its assessment, could deem that the Gang of Eight notification procedure,
as currently provided for in statute and by practice, continues to strike a reasonable balance
between the twin objectives of operational security and congressional oversight. If, however,
changes are sought, Congress could consider the following options.

Alternative One
Congress could adopt the approach approved by the House Intelligence Committee during its
markup of the FY2010 Intelligence Authorization Act. This approach would eliminate the Gang
of Eight statutory provision, according to its sponsors, substituting instead a provision that its
sponsors said would require that the President brief all members of the congressional intelligence
committees, while implicitly providing for the possibility of more restricted briefings pursuant to
the written procedures that would be established by the congressional intelligence committees as
may be necessary to carry out the statute’s provisions.

Alternative Two
Congress could adopt the approach approved by the Senate Intelligence Committee during its
markup of the FY2010 Intelligence Authorization Act. Rather than eliminating the current Gang
of Eight statutory provision, the Senate language would make no exception to the requirement
that the intelligence committees be notified of all covert actions. The language also would require
that all members of the intelligence committees be notified when the executive branch did not
provide information “in full” to all members about a particular covert action. In such cases, the
Director of National Intelligence would be required to provide in writing to the committees in a
“timely manner” a statement explaining the reasons for withholding certain information from the
full membership and a description of the main features of the covert action in question. The
executive branch also would be required to include in reports to Congress on covert actions an
explanation of the significance of the covert action being considered and report any change to a
covert action, rather than any “significant” change, as is currently required under statute. Finally,
under the Senate Committee’s provisions, the executive branch would be required to provide any
information or material regarding the legal authority under which a covert action is or was
conducted, and funding for a particular covert action would be provided only if the intelligence
committees had been fully and currently informed of that activity, or had been notified if the
executive branch had not provided information in full to all members of the two intelligence
committees.

Alternative Three
Congress could adopt the provision supported by some members of the House Intelligence
Committee but ultimately rejected by a majority of the Committee membership that would have
authorized the Chairmen and Ranking Members of the intelligence committees to decide whether
to comply with a presidential request to limit access to certain intelligence information, including
covert actions. The amendment stipulated that if the Chairman and Ranking Member were unable
to agree on whether or how to limit such access, access to the information would be limited, if so
requested by the President.

Alternative Four
If Congress were to decide to preserve the Gang of Eight notification procedure, but were to
consider modifying the process, such modifications could include specifying explicitly in statute
that:
• Gang of Eight notifications are permitted only in situations involving covert
action, rather than in those situations involving non-covert action programs,
including sensitive intelligence collection programs;
• a Gang of Eight notification remain in place as long as sensitive operations are
underway. Once such operational sensitivities no longer prevail, however, the full
membership of the intelligence committees would be informed;
• Gang of Eight Members, rather than the executive branch, will decide when to
notify the full membership of the intelligence committees.
• the executive branch be required to provide a statement of the reasons, in writing,
for limiting notification to the Gang of Eight, and that the executive branch
provide a written statement to the congressional intelligence committees in a
timely fashion when it does not provide prior notice of a covert action to the
Gang of Eight.
• Pursuant to Sec. 501(c) of the National Security Act, which requires the
establishment of procedures as may be necessary to carry out the provisions of
the statute, Congress could require that the congressional intelligence committees
establish certain procedures that would govern Gang of Eight notifications, as the
sponsors of the Gang of Eight provision apparently originally intended. Such
procedures could include permitting Gang of Eight Members to take notes as
such briefings and establishing a process of more formal consultation between
Gang of Eight Members.64

Alternative Five
Congress statutorily could eliminate the Gang of Eight procedure and bring sensitive covert
actions notifications back within the intelligence committee structure by permitting the President
to limit initial briefings of such operations to the Chairmen and Ranking members of the two
intelligence committees, the so-called “Gang of Four” formulation. Under this change, committee
leadership could be permitted to consult with House and Senate leaders, and staff, and inform the
full intelligence committees when they determine it to be appropriate.

Alternative Six
Congress statutorily could require that the executive branch inform the full membership of the
intelligence committees of all covert actions, irrespective of their perceived sensitivity.

Conclusion: Striking a Balance
Striking the proper balance between effective oversight and security remains a challenge to
Congress and the executive. Doing so in cases involving particularly sensitive covert actions
presents a special challenge. Success turns on a number of factors, not the least of which is the
degree of comity and trust that defines the relationship between the legislative and executive
branches. More trust can lead to greater flexibility in notification procedures. When trust in the
relationship is lacking, however, the legislative branch may see a need to tighten and make more
precise the notification architecture, so as to assure what it views as being an appropriate flow of
information, thus enabling effective oversight.

Endnotes

64 Given the demands of timing and scheduling, according to former executive branch officials, in the interest of time,
Gang of Eight Members are sometimes notified by secure phone. If scheduling permits, briefings are provided to Gang
of Eight Members, often on an individual basis. It is unclear whether Gang of Eight Members ever have requested to be
briefed as a group, or whether certain time and scheduling constraints would make such a request practical.

Monday, December 21, 2009

Gang of Eight Sensitive Covert Action Notifications: The Historic Record

Notwithstanding the continuing debate over the merits of such notifications, what remains less
clear is the historic record of compliance with Gang of Eight provisions set out in statute.
Questions include: have such notifications generally been limited to covert actions, ones that
conform to congressional intent that such covert actions be highly sensitive and involve the risk
to life? When prior notification is limited to the Gang of Eight, has the executive branch provided
an explanatory statement as to why it limited notification to the Gang of Eight? If the Gang of
Eight is not provided prior notice, has the executive branch then informed the intelligence
committees at a later date and provided a reason why prior notification was not provided? Has the
Gang of Eight, once notified, ever then made a determination to notify the intelligence
committees, a prerogative envisioned by its congressional sponsors? Have the congressional
intelligence committees, at any time since they were established, attempted to develop procedures
to guide Gang of Eight notifications, as envisioned by the sponsors of the Gang of Eight
provision?

Sunday, December 20, 2009

Executive Branch Threatens Veto of House and Senate Versions of 2010 Intelligence Authorization Act

On July 8, 2009, the Executive branch issued a Statement of Administration Policy (SAP) 61 in
which it stated that it strongly objected to the House Committee’s action to replace the Gang of
Eight statutory provision, and that the President’s senior advisors would recommend that the
President veto the FY2010 Intelligence Authorization Act if the Committee’s language was
retained in the final bill. According to the executive branch’s statement, the Committee’s new
statutory language “... would run afoul of tradition by restricting an important established means
by which the President protects the most sensitive intelligence activities that are carried out in the
Nation’s vital national security interests... ”62

Although the Executive branch has not issued a Statement of Administration Policy with regard to
the Senate’s bill, Director of National Intelligence Admiral Dennis Blair has indicated that he
would recommend that the President veto the bill if the covert action notification changes it
contained remained in final legislation.63

Endnotes

61 See Statement of Administration Policy on H.R. 2701, the Intelligence Authorization Act for Fiscal Year 2010, July 8, 2009.

62 Ibid.

63 See Ellen Nakashima, “Intelligence Oversight Bill Faces Obstacles,” Washington Post, September 18, 2009, p. A-3.

Saturday, December 19, 2009

Senate Intelligence Committee Tightened Certain Covert Action Reporting Requirements

In its version of the FY2010 Intelligence Authorization Act, the Senate Intelligence Committee
left unchanged the Gang of Eight statutory structure, but approved several changes that would
tighten certain aspects of current covert action reporting requirements.

The Committee adopted language stating that there shall be no exception to the requirements of
Title V off the National Security Act to inform the intelligence committees of all covert actions.52
The Committee voted to require that all members of the intelligence committees be notified when
the executive branch does not provide information “in full” to all members.53 In such cases, the
Director of National Intelligence would be required to provide in writing to the committees in a
“timely manner” a statement explaining the reasons for withholding certain information from the
full membership and a description of the main features of the covert action in question. The
executive branch also would be required to include in reports to Congress on covert actions an
explanation of the significance of the covert action and report any change to a covert action,54
rather than any “significant” change, 55 as is currently required under statute.

Finally, the committee approved language that would require that the executive branch provide to
the intelligence committees any information or material regarding the legal authority under which
a covert action is or was conducted,56 and that funding for an intelligence activity would be
provided only if the intelligence committees had been fully and currently informed of that
activity, or had been notified when the executive branch did not provide information in full to all
members.57

In additional views accompanying the Committee’s report58 on the legislation, Senators John
Rockefeller and Olympia Snowe said they supported the Committee-adopted language because,
they wrote, it would improve the notification processes, while not eliminating the Gang of Eight
procedure, “which many of us believe can serve an important purpose for quick and timely
notifications on extraordinarily sensitive covert actions.”59

A small number of the committee members opposed the notification provision contained in the
bill that would require the executive branch to notify the full membership of the intelligence
committees when a covert action notification does not disclose all information regarding such an
activity to all members of the committees. In additional views, they stated that the adopted
provision would modify the current balance in the National Security Act with respect to the
congressional notification procedures and that such a provision “will unnecessarily increase the
tension between the Legislative and Executive branches over information access.”60

Endnotes

52 S. 1494, Intelligence Authorization Act For Fiscal Year 2010, Sec. 331.

53 Ibid, Sec. 332.

54 Ibid.

55 National Security Act of 1947 as amended, Sec. 503 (d).

56 Ibid, Sec. 333.

57 Ibid, Sec. 334.

58 S.Rept. 111-55, accompanying S. 1494, the Intelligence Authorization Act For Fiscal Year 2010 (111th Congress, 1st
Sess.), pp. 76-77.

59 Ibid, p. 76.

60 Ibid, p. 75.

Friday, December 18, 2009

The House Intelligence Committee Adopted Several Other Covert Action-Related Measures as Part of FY2010 Intelligence Bill

The House Intelligence Committee adopted several additional statutory changes with regard to
covert action notifications. One such change would require that the information or material
concerning covert actions include any information or material relating to the legal authority under
which a covert action is being or was conducted, and any information or material relating to legal
issues upon which guidance was sought in carrying out or planning the covert action, including
dissenting legal views.46

Another change would require that the President provide Members who are not notified of a
particular covert action, pursuant to the procedures established by the each of the committees,
with general information on the content of the covert action.47

The Committee also adopted a provision that would permit a member who objects to a particular
covert action that has been notified to submit an objection to the Director of National Intelligence.
The DNI is required to notify the President of the objection no later than 48 hours after the
objection has been submitted.48

Finally, the committee approved covert action-related provisions that would:

• require that the CIA inspector general audit each covert action every three
years;49

• require that the President maintain a record of the Members of Congress notified
of a covert action and to provide such record within 30 days after the notification
is provided;50 and

• define the current statutory phrase “significant undertaking” to mean an activity
involving the potential for loss of life; requiring an expansion of existing
authorities, including authorities relating to research, development, or operations;
resulting in the expenditure of significant funds or other resources; requiring
notification under section 504; giving rise to a significant risk of disclosing
intelligence sources or methods; or possibly causing serious damage to the
diplomatic relations if the activity were to be disclosed without authorization.51

Endnotes

46 See H.R. 2701, Intelligence Authorization Act for Fiscal Year 2010, Sec. 321 (d).

47 Ibid, (g) (2).

48 Ibid, (g) (1).

49 Ibid, Sec. 411.

50 Ibid, Sec. 321 (g) (3).

51 Ibid, Sec. 321 (d) (2).

Thursday, December 17, 2009

House Intelligence Committee Replaces Gang of Eight Procedure in FY2010 Intelligence Authorization Act

In marking up its version of the FY2010 Intelligence Authorization Act, the House Intelligence
Committee replaced the Gang of Eight statutory provision, adopting in its place a statutory
requirement that each of the intelligence committees establish written procedures as may be
necessary to govern such notifications.

The current Gang of Eight statutory provision stipulates:
If the President determines that it is essential to limit access to the finding to meet
extraordinary circumstances affecting vital interest of the United States, the finding may be
reported to the chairmen and ranking minority members of the congressional intelligence
committees, the Speaker and the minority leader of the House of Representatives, the
majority and minority leaders of the Senate, and such other member or members of the
congressional leadership as may be included by the President40

The substitute language approved by the House Intelligence Committee stipulates:
If, pursuant to the procedures established by each of the congressional intelligence
committees under Section 501(c), one of the congressional intelligence committees
determines that not all members of that committee are required to have access to a finding
under this subsection, the President may limit access to such findings or such notice as
provided in such procedures.41

According to Committee report language, the provision:
requires the President to brief all members of the congressional intelligence committees, but
implicitly provides for the possibility of more restricted briefings pursuant to the written
procedures established by the congressional intelligence committees, pursuant to the revised
Section 501 (c). This language vests the authority to limit the briefings with the committees,
rather than the President.42

The Report’s reference to a revision of Sec. 501 of the National Security Act pertained to the
Committee’s approval of statutory language requiring that the President and the congressional
intelligence committees each establish such “written” procedures as may be necessary to carry
out the statutes provisions.43 Current statute does require that any such procedures be in writing.

In approving the new provision, the committee rejected an amendment that would have
authorized the Committee’s Chairman and Ranking Member to decide whether to comply with a
presidential request to limit access to certain intelligence information, including covert actions.

The rejected amendment stipulated that if the Chairman and Ranking Member were unable to
agree on whether or how to limit such access, access to the information would be limited if so
requested by the President.44

According to the views of the Minority contained in the report, the provision adopted by the
Committee:

nowhere creates a statutory presumption that all Members of the Committee should be
briefed. Instead, it would require the Committee to unilaterally develop procedures for the
handling of reporting on sensitive matters, even though the President has significant
constitutional authorities in the area of national security that Courts have repeatedly said
must be considered with and balanced against the authorities of Congress. The provision
nowhere provides a mechanism for ensuring that decisions within the Committee are made
on a bipartisan basis or for reconciling any dispute between the branches with respect to such
reporting, which is a receipt for Constitutional gridlock that could be disastrous with respect
to such sensitive matters.45


Endnotes

40 Sec. 503 of the National Security Act [50 U.S.C. 413b] (c)(2).

41 See Intelligence Authorization Act for Fiscal Year 2010, H.R. 2701, Sec. 321 [111th Congress, 1st sess.].

42 See H.Rept. 111-186, accompanying the Intelligence Authorization Act for Fiscal Year 2010, pp. 21-22 [111th
Congress, 1st sess.].

43 See Intelligence Authorization Act for 2010, H.R. 2701, Sec. 321 (b).

44 See Intelligence Authorization Act For 2009, H.R. 5959, Sec. 502 (b). This language applied to reports of
intelligence activities other than covert action. The amendment offered to the FY2010 Intelligence Authorization Act
during the Committee’s markup was extended to include reporting of covert actions.

45 See H.Rept. 111-186, accompanying the Intelligence Authorization Act for Fiscal Year 2010, Minority Views, p. 3
[111th Congress, 1st sess.].

Wednesday, December 16, 2009

Directors of National Intelligence and Central Intelligence Agency Critical of Gang of Eight Notifications for Non-Covert Actions

During their respective Senate confirmation hearings, Director of National Intelligence (DNI)
Dennis Blair and CIA Director Leon Panetta criticized the use of the Gang of Eight notification
procedure to notify Congress of the National Security Agency’s (NSA) electronic
communications surveillance program—often referred to as the Terrorist Surveillance Program,
or TSP—and the CIA’s detention, interrogation and rendition program. DNI Blair said both
programs “... involved sensitive collection activities rather than covert actions. The “Gang of 8”
notice is available ... only where notice of covert action is concerned, and its use in these
programs was not expressly allowed.”36 Director Panetta said “the NSA surveillance program was
not a covert action program, and, therefore, limiting notification to the “gang of eight” was
inappropriate.”37 DNI Blair said that, because of the restrictive nature of Gang of Eight
notifications in these two instances, “the intelligence committees were prevented from carrying
out their oversight responsibilities.”38 Director Panetta, expressing similar sentiments, said that
such limited notifications “restrict the ability of the intelligence committees to conduct
oversight.”39

Endnotes

36 See “Additional Pre-hearing Questions for Dennis C. Blair upon nomination to be Director of National Intelligence,” Question/Answer 4(C).

37 See “Additional Pre-hearing Questions for the Record For the Honorable Leon E. Panetta upon his selection to be the Director of The Central Intelligence Agency,” Question/Answer 23. In his response, Director Panetta did not address whether the CIA’s
detention, interrogation and rendition program was an intelligence collection program, or a covert action program.
Former CIA Director Michael Hayden, has said that the program “... began life as a covert action ... ” See Australian
Broadcasting Corporation, AM, April 17, 2009.
Before the notification briefings were subsequently expanded to include more Members, the executive treated both
programs as particularly sensitive collection programs insofar as notification was concerned, in that it limited its initial
notification to the Gang of Four. See letter from Representative Jane Harman to President George W. Bush, December
21, 2005, in which she makes reference to the Administration’s use of the Gang of Four notification process, used
initially to notify Congress. The Bush Administration also employed the Gang of Four notification procedure to notify
Congress of the CIA’s detention, interrogation and rendition program. See “Members Briefings on Enhanced
Interrogation Techniques (EITs),” released by the CIA on May 6, 2009. A listing of the briefings can be found here.

38 See “Additional Pre-hearing Questions for Dennis C. Blair upon nomination to be Director of National Intelligence,” Question/Answer 4(C).

39 See “Additional Pre-hearing Questions for the Record For the Honorable Leon E. Panetta upon his selection to be the Director of The Central Intelligence Agency,” Question/Answer 23.

Tuesday, December 15, 2009

The Impact of Sensitive Covert Action Notifications on Congressional Intelligence Oversight

The impact of Gang of Eight notifications on the effectiveness of congressional intelligence
oversight continues to be debated.

Supporters of the Gang of Eight process contend that such notifications continue to serve their
original purpose, which, they assert, is to protect operational security of particularly sensitive
covert actions that involve vital U.S. interests while still involving Congress in oversight. Further,
they point out that although Members receiving these notifications may be constrained in sharing
detailed information about the notifications with other intelligence committee members and staff,
these same Members can raise concerns directly with the President and the congressional
leadership and thereby seek to have any concerns addressed.30 Supporters also argue that
Members receiving these restricted briefings have at their disposal a number of legislative
remedies if they decide to oppose a particular covert action program, including the capability to
use the appropriations process to withhold funding until the executive branch behaves according
to Congress’s will.31

Critics counter with the following points. First, they say, Gang of Eight notifications do not
provide for effective congressional oversight because participating Members “cannot take notes,
seek the advice of their counsel, or even discuss the issues raise with their committee
colleagues.32 Second, they contend that Gang of Eight notifications have been “overused.”33
Third, they assert that, in certain instances, the executive branch did not provide an opportunity to
Gang of Eight Members to approve or disapprove of the program being briefed to them.34 And
fourth, they contend that the “limited information provided Congress was so overly restricted that
it prevented members of Congress from conducting meaningful oversight.”35

Endnotes

30 See Congressional Quarterly transcript of press conference given by Representative Peter Hoekstra, December 21,
2005.

31 See Tim Starks, “Pelosi Controversy Suggests Changes to Congressional Briefings Are Due,” Congressional
Quarterly, May 14, 2009.

32 See letter from Representative Jane Harman to President George W. Bush, January 4, 2006, regarding the National
Security Agency (NSA) electronic communications surveillance program, often referred to as the Terrorist Surveillance
Program, or TSP.

33 See Tim Starks, “Pelosi Controversy Suggests Changes to Congressional Briefings Are Due,” Congressional
Quarterly, May 14, 2009.

34 Press release from Senator John D. (Jay) Rockefeller, December 19, 2005, commenting on the Terrorist Surveillance
Program initiated by the George W. Bush Administration. As discussed earlier in this memorandum, under Sec.
501(a)(2), nothing in Title V “shall be construed as requiring the approval of the congressional intelligence committees
as a condition precedent to the initiation of any significant anticipated intelligence activity.

35 Ibid.

Monday, December 14, 2009

Authority of Gang of Eight to Affect Covert Action

Even with statutory arrangements governing covert action, including Gang of Eight covert
actions, Congress does not have the authority under statute to veto outright a covert action.
Indeed, former Senator Howard Baker successfully pushed the inclusion in the 1980 legislative
package of a provision making clear that Congress did not have approval authority over the
initiation of any particular covert action.28

Nonetheless, the Gang of Eight Members, as do the intelligence committees, arguably have the
authority to influence whether and how such covert actions are conducted over time. For
example, Members could express opposition to the initiation of a particular covert action. Some
observers assert that in the absence of Members’ agreement to the initiation of the covert action
involved, barring such agreement, an administration would have to think carefully before
proceeding with such a covert action as planned.29

The Gang of Eight over time could also influence funding for such operations. Initial funding for
a covert action generally comes from the CIA’s Reserve for Contingency Fund, for which
Congress provides an annual appropriation. Once appropriated, the CIA can fund a covert action
using money from this fund, without having to seek congressional approval. But the executive
branch generally must seek additional funds to replenish the reserve on an annual basis. If the
Gang of Eight, including the two committee chairmen and ranking members were to agree not to
continue funding for a certain covert action, they arguably could impress on the membership of
the two committees not to replenish the reserve fund, providing they informed the committees of
the covert action, a decision which the congressional sponsors said they intended to be left to the
discretion of the Gang of Eight in any case.

Thus, the Gang of Eight could influence the intelligence committees to increase, decrease or
eliminate authorized funding of a particular covert action. Some observers point out, however,
that the leaders’ overall effectiveness in influencing a particular covert action turns at least as
much on their capability to conduct effective oversight of covert action as it does on their legal
authority.

Endnotes

28 National Security Act of 1947 as amended, Sec. 501[50 U.S.C. 413] (a) (2).

29 L. Britt Snider, The Agency and the Hill, CIA’s Relationship With Congress, 1946-2004, (Washington, D.C.: Center
For the Study of Intelligence, Central Intelligence Agency, 2008), p. 311. See also Mike Soraghan, “Reyes Backs
Pelosi On Intel Briefings,” The Hill, May 1, 2009. House Intelligence Committee Ranking Member Peter Hoekstra
reportedly stated that Members of Congress are able to challenge policies they disagree with. “This is nuts, this saying,
‘I couldn’t do anything,’” Hoekstra told the Hill, adding that he at least once complained to then President Bush and got
a policy changed, according to the newspaper.

Sunday, December 13, 2009

Congress Approved Gang of Eight Notifications in 1980, Following the Iran Hostage Rescue Attempt

Congress approved the Gang of Eight notification provision in 1980 as part of a broader package
of statutory intelligence oversight measures generally aimed at tightening intelligence oversight
while also providing the Central Intelligence Agency (CIA) greater leeway to carry out covert
operations, 23 following a failed covert operation to rescue American embassy hostages in Iran.24

Congressional approval came after President Jimmy Carter decided not to notify the intelligence
committees of the operation in advance because of concerns over operational security and the risk
of disclosure. Director of Central Intelligence Stansfield Turner briefed the congressional
intelligence committees only after the operations had been conducted. Although most members
reportedly expressed their understanding of the demands for secrecy and thus the
Administration’s decision to withhold prior notification,25 Senate Intelligence Committee
Chairman Birch Bayh expressed concern that the executive branch’s action reflected a distrust of
the committees. He suggested that future administrations could address disclosure concerns by
notifying a more limited number of Members “so that at least somebody in the oversight
mechanism would know .... If oversight is to function better, you first need it to function [at
all].”26 Such sentiments appear to have contributed to the subsequent decision by Congress to
permit the executive branch to notify the Gang of Eight in such cases.27

Endnotes

23 Congressional Quarterly Almanac, Vol. XXXVI, 1980, p. 66.

24 There actually were two separate operations — both of which constituted covert actions, since neither was
undertaken to collect intelligence — to rescue U.S. embassy personnel after Iranian “students” overran the U.S.
Embassy in Tehran on Nov. 4, 1979. The failed operation involved an attempted airborne rescue of U.S. hostages
which was aborted when three of the rescue helicopters experienced mechanical difficulties. A subsequent collision of
one of the helicopters and a refueling plane left seven American rescuers dead. An earlier effort resulted in the
successful extrication of six Americans who had been working at the U.S. embassy but had avoided capture by taking
refuge in the residences of the Canadian ambassador and deputy chief of mission.

25 At the time, the Hughes-Ryan Amendment of 1974 requiring that the executive branch report on Central Intelligence
Agency covert operations to as many as eight congressional committees, including the intelligence committees, was
still the law.

26 See L. Britt Snider, The Agency and the Hill, CIA’s Relationship With Congress, 1946-2004, (Washington, D.C.:
Center For the Study of Intelligence, Central Intelligence Agency, 2008), p. 283.

27 Ibid.

Saturday, December 12, 2009

Congress Signaled Its Intent That the Gang of Eight Would Decide When to Inform the Intelligence Committees

During the Senate’s 1980 debate of the Gang of Eight provision, congressional sponsors said their
intent was that the Gang of Eight would reserve the right to determine the appropriate time to
inform the full intelligence committees of the covert action of which they had been notified.18

The position of sponsors that the Gang of Eight would determine when to notify the full
intelligence committees underscores the point that while the statute provides the President this
limited notification option, it appears to be largely silent on what happens after the President
exercises this particular option. Sponsors thus made it clear that they expected the intelligence
committees to establish certain procedures to govern how the Gang of Eight was to notify the full
intelligence committees. Senator Walter Huddleston, Senate floor manager for the legislation,
said “... the intent is that the full oversight committees will be fully informed at such time the
eight leaders determine is appropriate. The committees will establish the procedures for the
discharge of this responsibility...”19

Senator Huddleston’s comments referred to Sec. 501(c) of Title V of the National Security Act
which stipulates that “The President and the congressional intelligence committees shall each
establish such procedures as may be necessary to carry out the provisions of this title.”

With regard to Sec. 501(c), Senate report language stated:
The authority for procedures established by the Select Committees is based on the current
practices of the committees in establishing their own rules. One or both committees may, for
example, adopt procedures under which designated members are assigned responsibility on
behalf of the committee to receive information in particular types of circumstances, such as
when all members cannot attend a meeting or when certain highly sensitive information is
involved.20

Congressional intent thus appeared to be that the collective membership of each intelligence
committee, rather than the Committee leadership, would develop such procedures.21 Moreover,
the rules that each committee have subsequently adopted, while they deal in detail as to how the
committees are to conduct their business, do not appear to address any procedures that might
guide Gang of Eight notifications generally. Rather, to the extent that any such procedures have
been adopted, those procedures appear to have been put into place at the executive branch’s
insistence, according to congressional participants.22

Endnotes

18 See Addendum B, copy of the Senate debate as recorded in the Congressional Record, 96th Congress, 2nd Session,
Volume 126—Part 20, September 17, 1980 to September 24, 1980. See p. 17693.

19 Ibid, p. 17693.

20 See addendum B, S.Rept. 96-730, 96th Cong, 2nd sess. See p. 13 of the report.

21 Ibid, p. 12.

22 Letter from Representative Jane Harman to President George W. Bush, January 4, 2006. Another example of the
informality which sometimes informs the intelligence notification process involves so-called Gang of Four
notifications. The Gang of Four consists of the chairmen of the congressional intelligence committees, the Vice
Chairman of the Senate Intelligence Committee and the Ranking Member of the House Intelligence Committee. The
executive branch frequently limits certain intelligence notifications to these four Members, sometimes including
committee staff directors, even though neither statute, or committee rules, appear to make provision for such
notifications.

Friday, December 11, 2009

Sensitive Covert Actions: When Prior Notice to the Gang of Eight is Withheld

Although the statute requires that the President provide the Gang of Eight advance notice of
certain covert actions, it also recognizes the President’s constitutional authority to withhold such
prior notice altogether by imposing certain additional conditions on the President should the
decision be made to withhold. If prior notice is withheld, the President must “fully inform” the
congressional intelligence committees15 in a “timely fashion”16 after the commencement of the
covert action. The President also is required to provide a statement of the reasons for withholding
prior notice to the Gang of Eight.17 In other words, a decision by the executive branch to withhold
prior notice from the Gang of Eight would appear to effectively prevent the executive branch
from limiting an-after-the-fact notification to the Gang of Eight, even if the President had
determined initially that the covert action in question warranted Gang of Eight treatment. Rather,
barring prior notice to the Gang of Eight, the executive branch would then be required to inform
the full intelligence committees of the covert action in “timely fashion.” In doing so, Congress
appeared to envision a covert action, the initiation of which would require short-term period of
heightened operational security.

Endnotes

15 National Security Act of 1947 as amended, Sec. 503 [50 U.S.C. 413b] (c) (3).

16 Ibid. What constitutes “timely fashion” was the subject of intense debate between the congressional intelligence
committees and the executive branch during the consideration of the fiscal year 1991 Intelligence Authorization Act. At
that time, House and Senate intelligence committee conferees noted that the executive branch had asserted that the
President’s constitutional authorities “permit the President to withhold notice of covert actions from the committees for
as long as he deems necessary.” The conferees disputed the President’s assertion, claiming that the appropriate meaning
of “timely fashion” is “within a few days.” Specifically, conferees stated, “While the conferees recognize that they
cannot foreclose by statute the possibility that the President may assert a constitutional basis for withholding notice of
covert actions for periods longer than ‘a few days,’ they believe that the President’s stated intention to act under the
‘timely notice’ requirement of existing law to make a notification ‘within a few days’ is the appropriate manner to
proceed under this provision, and is consistent with what the conferees believe is its meaning and intent.” The
conference report included the text of a letter sent to the chairman of the House Intelligence Committee, in which
President George H.W. Bush stated: “In those rare instances where prior notice is not provided, I anticipate that notice
will be provided within a few days. Any withholding beyond this period will be based upon my assertion of authorities
granted this office by the Constitution...” See H.Conf.Rept. 102-166, 102nd Cong., 1st sess., pp. 27-28 (1991). Despite
President George H.W. Bush’s refusal to commit to either “timely” notification as defined by Congress, or any
notification at all, Robert M. Gates, President George H.W. Bush’s nominee as Director of Central Intelligence, said he
believed that non-notification should be withheld for no more than a few days at the most, and that he would
contemplate resignation if it extended beyond that time period. See Congressional Quarterly Almanac, 102nd Cong., 1st
sess., 1991, Vol. XLVII, p. 482.

17 Ibid.

Thursday, December 10, 2009

Sensitive Covert Actions: Additional Gang of Eight Requirements

In addition to having to determine that vital interests are implicated, the President must comply
with four additional statutory conditions in notifying the Gang of Eight. First, the President is
required to provide a statement setting out the reasons for limiting notification to the Gang of
Eight, rather than the full intelligence committees.11 The two intelligence committee chairmen,
both Gang of Eight Members, also must be provided signed copies of the covert action finding in
question.12 Third, the President is required to provide the Gang of Eight advance notice of the
covert action in question.13 And, lastly, Gang of Eight Members must be notified of any
significant changes in a previously approved covert action, or any significant undertaking
pursuant to a previously approved finding.14

Endnotes

11 National Security Act of 1947 as amended, Sec. 503 [50 U.S.C. 413b] (c) (4). The statute does not explicitly specify
whether such a statement should be in writing, nor specifically to whom such a statement should be provided.

12 Ibid.

13 National Security Act of 1947 as amended, Sec. 503 [50 U.S.C. 413b] (c) (2). The President must comply with these
last two requirements—providing signed copies of the covert action and providing advance notification—when
notifying the full committees of covert action operations that are determined to be less sensitive than “Gang of Eight”
covert actions. Sec. 503 [50 U.S.C. 413b] (a) (1) requires a written finding unless immediate action by the U.S. is
required and time does not permit preparation of a written finding. In the latter situation, a contemporaneous written
record must be immediately reduced to a written finding as soon as possible within 48 hours.

14 Ibid, (d).

Wednesday, December 9, 2009

Requirements for Notifications of Sensitive Covert Actions to Congress

Under current statute, the President generally is required keep the congressional intelligence
committees fully and currently informed of all covert actions1 and that any covert action2
“finding”3 shall be reported to the committees as soon as possible after such approval and before
the initiation of the covert action authorized by the finding.

If, however, the President determines that it is essential to limit access to a covert action finding
in order to “meet extraordinary circumstances affecting vital interests of the United States,”4 then
rather than providing advanced notification to the full congressional intelligence committees, as is
generally required, the President may limit such notification to the “Gang of Eight,” and any
other congressional leaders he may choose to inform. The statute defines the “Gang of Eight” as
being comprised of the chairmen and ranking members of the two congressional intelligence
committees and the House and Senate majority and minority leadership.5

In report language accompanying the 1980 enactment, Congress established its intent to preserve
the secrecy necessary for very sensitive covert actions, while providing the President with a
process for consulting in advance with congressional leaders, including the intelligence
committee chairmen and ranking minority members, “who have special expertise and
responsibility in intelligence matters.”6 Such consultation, according to Congress, would ensure
strong oversight, while at the same time, “share the President’s burden on difficult decisions
concerning significant activities.”7

In 1991, following the Iran-Contra Affair,8 Intelligence Conference Committee Conferees more
specifically stated that Gang of Eight notifications should be used only when “the President is
faced with a covert action of such extraordinary sensitivity or risk to life that knowledge of the
covert action should be restricted to as few individuals as possible.”9 Congressional Conferees
also indicated that they expected the executive branch to hold itself to the same standard by
similarly limiting knowledge of such sensitive covert actions within the executive.10

Endnotes

1 National Security Act as amended, Sec. 503 [50 U.S.C. 413b] (b) and (c).

2 A covert action is defined in statute as an activity or activities of the United States Government to influence political,
economic, or military conditions abroad, where it is intended that the role of the United States Government will not be
apparent or acknowledged publicly. See the National Security Act of 1947, Sec. 503(e), 50 U.S.C. 413b(e).

3 A Finding is a presidential determination that an activity is necessary to “support identifiable foreign policy
objectives” and “is important to he national security of the Untied States.” See Intelligence Authorization Act for
FY1991, P.L. 102-88, Title VI, Sec. 602 (a) (2), 50 U.S.C. 413b (a).

4 National Security Act of 1947 as amended, Sec. 503 [50 U.S.C. 413b] (c) (2). See Addendum A, Title V of the
National Security Act as amended. The authorization for Gang of Eight notification also permits the President to notify
“such other Member or Members of the congressional leadership as may be included by the President.”

5 Ibid.

6 Addendum A, S.Rept. 96-730, 96th Cong., 2nd sess. (1980), p. 10. This report accompanied S. 2284, from which Title
V of P.L. 96-450 is derived. Gang of Eight notification was included in a new Title V, Sec. 501, Sec. 501 (a) (1) added
to the National Security Act of 1947 as amended by Sec. 407 (a) (3) of P.L. 96-450.

7 Ibid.

8 The Iran-Contra affair was a secret initiative by the administration of President Ronald Reagan in the 1980s to
provide funds to the Nicaraguan Democratic Resistance from profits gained by selling arms to Iran. The purpose was at
least two-fold: to financially support the Nicaraguan Democratic Resistance and to secure the release of American
hostages held by pro-Iranian groups in Lebanon.

9 Joint Explanatory Statement of the Committee of Conference, accompanying Conf.Rept. 102-166, 102nd Congress, 1st
sess. (1991), p. 28. The Joint Explanatory Statement accompanied H.R. 1455, the FY1991 Intelligence Authorization
Act, which was subsequently signed into law (P.L. 102-88). The “risk to life” language is not repeated in statute.

10 Ibid.

Tuesday, December 8, 2009

Augusto Pinochet: CIA Biography

CONFIDENTIAL

NOFORN/WARNING NOTICE--SENSITIVE INTELLIGENCE SOURCES AND METHODS INVOLVED

Augusto PINOCHET Ugarte
(Phonetic: peenohSHAY)

CHILE

President: Commander in Chief of the Army

Addressed as: Mr. President

Army Commander since August 1973, Maj. Gen. Augusto Pinochet became President after he led the September 1973 coup against President (1970-73) Salvador Allende. Pinochet is totally dedicated to the establishment in Chile of a new political and economic order free of all vestiges of Marxism. A man known for his toughness, he will not tolerate any opposition to the government. He is an inflexible anti-Communist and dislikes politicians of all persuasions, blaming them for the chaos that necessitated the Allende overthrow.

To international critics, Pinochet is the personification of all the evils they see in Chile, and he is the butt of continual, abusive personal criticism from abroad. Defensive in the face of criticism of his regime, he readily blames such excoriation on an international campaign orchestrated by the Soviet Union and Cuba to bring about the demise of the government, and he is quick to brand almost any form of opposition to the junta as a spinoff of that campaign. The President views the international system in cold war terms, and he points to Communist victories in Southeast Asia and the Cuban intervention in Angola to prove the fallacy of the US policy of detente. Pinochet admires the United States but is perplexed by the US posture toward Chile. He has been disappointed and frustrated with the level of US assistance and the lack of moral backing, claiming "we have been better allies to you than you have to us." Pinochet is unsophisticated in international relations and believes that Chile does not deserve the pariah status that its human rights practices have produced. He nevertheless recognizes that there have been human rights abuses and has shown a desire to remedy the situation, but he has been unwilling or unable to effect the significant improvements demanded by critics. He has visited the United States at least three times, most recently in 1968.

Domestically, Pinochet's predominance and influence within the government have grown at the expense of his fellow junta members since the coup--not without some strains. He is widely accepted as President, and there is no effective opposition to his rule. [...] he is nevertheless genuinely popular in Chile. He frequently travels within the country making public appearances, exhorting people to work together for the national reconstruction and condemning Chile's critics. Pinochet's forays at times give him the semblance of a grassroots politician, and he is always well received. He fancies himself as a father figure to the country and has expressed a desire to be an elected President one day. He has had several run-ins with the Catholic Church and the Christian Democratic Party over human rights matters and violations of the political recess, but, recognizing the influence and importance of both institutions, he has avoided a showdown that could irretrievably break relations. Pinochet lacks economic expertise and has entrusted economic policy making to qualified technicians. He has thus far fully supported the tough austerity measures that have been implemented, despite criticism about the adverse impact on the lower classes.

Outwardly tough, rigid and disciplined, Pinochet, 60, can be warm and friendly. Quiet, mild-mannered and businesslike, he is dedicated and hard working; he nevertheless enjoys parties. [...]. He is interested in sports and likes to discuss world military problems. [...] He has written at least three books on geography, one of which has been used as a high school text. Married to the former Lucia Hiriart, the President has five children and seven grandchildren. He speaks some French and only a little English.

17 May 1976

Monday, December 7, 2009

Draft of Letter to New York Times - (Truth Commission I)

12 April 1993

DRAFT

Letter to The Editor
The New York Times
229 W. 43rd Street
New York, NY 10036

To the Editor:

On April 2, you ran an article by Anthony Lewis ("Fear of the Truth"). In the body of that piece, Lewis stated that CIA knew who had killed San Salvador's Archbishop Romero. Lewis stated categorically that at the direction of Robert Gates, the information had been withheld from our intelligence oversight committees.

Lewis is categorically wrong.

Over the years, US intelligence has contributed substantially to our governments' understanding of human rights violations in El Salvador and elsewhere. In the Romero matter, we can document that when we acquired information about the assassination and the alleged assassin, we promptly sent it to appropriate policy agencies, to two other US intelligence agencies, and to both of our Congressional oversight committees.

It is important that the US public understand that neither the CIA nor Robert Gates suppressed information about this matter.

Sincerely,

Gary E. Foster

Sunday, December 6, 2009

Draft of Letter to New York Times - (Truth Commission I)

13 April 1993

NOTE FOR: DDO

FROM: D/PAI

I request your concurrence on this draft letter to The New York Times. On 2 April 1993, Anthony Lewis wrote a column (attached) alleging that the Agency withheld intelligence from Congress concerning the assassination of Archbishop Romero in El Salvador in 1980.

This draft has been coordinated with DD/OCA [...]. He accompanied me to the SSCI on 12 April, when we showed staffers that the intelligence acquired on the assassination, referred to by Lewis, was provided to the committee (in fact, probably within two weeks after the Field reported it). [...] the staffers said they would not object to our stating that the intelligence was provided to the committee.

I am also asking for the DDCI's concurrence on the draft. Then I will give it back to [...] to run by the SSCI before we send it to The New York Times later this week.

[...]

Att

CONCUR:

Deputy Director for Operations

16 APR 1993

Saturday, December 5, 2009

Iraq: Trying to Kill President Bush?

Counterterrorist Center Commentary

29 April 1993

Summary

Preliminary forensic data indicate Iraq provided ordnance to the individuals now in Kuwaiti custody who claim that Baghdad sent them to assassinate President Bush with a car bomb during his 14-16 April visit. [...] US Secret Service and FBI officers are on the way to Kuwait to participate in a coordinated investigation of the incident. (S NF NC OC)

* * * * *

Overview as of 1600 on 29 April 93

[...]

Initial Forensic Data

[...] At this time, US Secret Service and FBI officers also are on the way to Kuwait to participate in a coordinated investigation of the incident.

Conclusions So Far

The car bomb [...] suggests that Iraq has decided to expand both the lethality and the scope of its overseas terrorist operations. Iraq has detonated bombs in Kuwait since the Gulf war, but none as large as the seized car bomb. Iraq also has killed individuals abroad since the war, but only Iraqi emigres. Moreover, if President Bush was the target of the planned attack--which is plausible, given Saddam's history of personal vendettas--the operation may mark a resumption by Baghdad of anti-Western terrorist operations abroad. On the other hand, Baghdad may have found President Bush's visit to Kuwait too tempting to pass up.

Friday, December 4, 2009

The Darker Bioweapons Future

3 November 2003

A panel of life science experts convened for the Strategic Assessments Group by the National Academy of Sciences concluded that advances in biotechnology, coupled with the difficulty in detecting nefarious biological activity, have the potential to create a much more dangerous biological warfare (BW) threat. The panel noted:
  • The effects of some of these engineered biological agents could be worse than any disease known to man.
  • The genomic revolution is pushing biotechnology into an explosive growth phase. Panelists asserted that the resulting wave front of knowledge will evolve rapidly and be so broad, complex, and widely available to the public that traditional intelligence means for monitoring WMD development could prove inadequate to deal with the treat from these advanced biological weapons.
  • Detection of related activities, particularly the development of novel bioengineered pathogens, will depend increasingly on more specific human intelligence and, argued panelists, will necessitate a closer--and perhaps qualitatively different--working relationship between the intelligence and biological sciences communities.
The Threat From Advanced BW

In the last several decades, the world has witnessed a knowledge explosion in the life sciences based on an understanding of genes and how they work. According to panel members, practical applications of this new and burgeoning knowledge base will accelerate dramatically and unpredictably:
  • As one expert remarked: "In the life sciences, we now are where information technology was in the 1960s; more than any other science, it will revolutionize the 21st century."
Growing understanding of the complex biochemical pathways that underlie life processes has the potential to enable a class of new, more virulent biological agents engineered to attack distinct biochemical pathways and elicit specific effects, claimed panel members. The same science that may cure some of our worst diseases could be used to create the world's most frightening weapons.

The know-how to develop some of these weapons already exists. For example:
  • Australian researchers recently inadvertently showed that the virulence of mousepox virus can be significantly enhanced by the incorporation of a standard immunoregulator gene, a technique that could be applied to other naturally occurring pathogens such as anthrax or smallpox, greatly increasing their lethality.
  • Indeed, other biologists have synthesized a key smallpox viral protein and shown its effectiveness in blocking critical aspects of the human immune response.
  • A team of biologists recently created a polio virus in vitro from scratch.
According to the scientists convened, other classes of unconventional pathogens that may arise over the next decade and beyond include binary BW agents that only become effective when two components are combined (a particularly insidious example would be a mild pathogen that when combined with its antidote becomes virulent); "designer" BW agents created to be antibiotic resistant or to evade an immune response; weaponized gene therapy vectors that effect permanent change in the victim's genetic makeup; or a "stealth" virus, which could lie dormant inside the victim for an extended period before being triggered. For example, one panelist cited the possibility of a stealth virus attack that could cripple a large portion of people in their forties with severe arthritis, concealing its hostile origin and leaving a country with massive health and econmic problems.

According to experts, the biotechnology underlying the development of advanced biological agents is likely to advance very rapidly, causing a diverse and elusive threat spectrum. The resulting diversity of new BW agents could enable such a broad range of attack scenarios that it would be virtually impossible to anticipate and defend against, they say. As a result, there could be a considerable lag time in developing effective biodefense measures.

However, effective countermeasures, once developed, could be leveraged against a range of BW agents, asserted attendees, citing current research aimed at developing protocols for augmenting common elements of the body's response to disease, rather than treating individual diseases. Such treatments could strengthen our defense against attacks by ABW agents.

Implications for Warning

The experts emphasized that, because the processes, techniques, equipment and know-how needed for advanced bio agent development are dual use, it will be extremely difficult to distinguish between legitimate biological research activities and production of advanced BW agents.
  • The panel contrasted the difficulty of detecting advanced bioweapons with that of detecting nuclear weapons, which has always had clear surveillance and detection "observables," such as highly enriched uranium or telltale production equipment.
Consequently, most panlists argued that a qualitatively different relationship between the government and life sciences communities might be needed to most effectively grapple with the future BW threat.

They cited the pace, breadth, and volume of the evolving bioscience knowledge base, coupled with its dual-use nature and the fact that most is publicly available via electronic means and very hard to track, as the driving forces for enhanced cooperation. Most panelists agreed that the US life sciences research community was more or less "over its Vietnam-era distrust" of the national security establishment and would be open to more collaboration.
  • One possibility, they argued, might be early government assistance to life sciences community efforts to develop its own "standards and norms" intended to differentiate between "legitimate" and "illegitimate" research, efforts recently initiated by the US biological sciences community.
  • A more comprehensive vision articulated by one panelist was for the bioscience community at large to aid the government by acting as "a living sensor web"--at international conferences, in university labs, and through informal networks--to identify and alert it to new technical advances with weaponization potential. The workshop did not discuss the legal or regulatory implications of any such changes.

Thursday, December 3, 2009

The Intelligence Identities Protection Act

In 1982, the Intelligence Identities Protection Act was enacted into law as an
amendment to the National Security Act of 1947. This Act was a response to concerns
of members of the House and Senate Intelligence Committees and others in Congress
“about the systematic effort by a small group of Americans, including some former
intelligence agency employees, to disclose the names of covert intelligence agents.”2 The
Senate Judiciary Committee’s report also discussed the efforts of Philip Agee, Lewis
Wolf, and others to identify and disclose U.S. intelligence officers as part of “a systematic
effort to destroy the ability of [U.S.] intelligence agencies to operate clandestinely,” and
their apparent repercussions.3 Such disclosures preceded and may have contributed to
circumstances resulting in the death or attempted assassination of some CIA officers,
expulsion of others from a foreign country following charges of spying, and impairment
of relations with foreign intelligence sources. Two of Agee’s books revealed over 1,000
names of alleged CIA officers. Wolf was co-editor of the “Covert Action Information
Bulletin,” a publication which contained a section entitled “Naming Names.” Wolf
claimed to have revealed the names of over 2,000 CIA officers. He also provided
addresses, phone numbers, license tag numbers, and colors of the automobiles of some
alleged intelligence agents.4 Such calculated disclosures set the stage for the
consideration and passage of the Intelligence Identities Protection Act.

The criminal provisions of the Act are contained in 50 U.S.C. § 421:
§ 421. Protection of identities of certain United States undercover intelligence
officers, agents, informants, and sources.

(a) Disclosure of information by persons having or having had access to classified
information that identifies covert agent
Whoever, having or having had authorized access to classified information that
identifies a covert agent, intentionally discloses any information identifying such
covert agent to any individual not authorized to receive classified information,
knowing that the information disclosed so identifies such covert agent and that the
United States is taking affirmative measures to conceal such covert agent’s
intelligence relationship to the United States, shall be fined under Title 18 or
imprisoned not more than ten years, or both.

(b) Disclosure of information by persons who learn identify of covert agents as result
of having access to classified information
Whoever, as a result of having authorized access to classified information, learns
the identity of a covert agent and intentionally discloses any information identifying
such covert agent to any individual not authorized to receive classified information,
knowing that the information disclosed so identifies such covert agent and that the
United States is taking affirmative measures to conceal such covert agent’s
intelligence relationship to the United States, shall be fined under Title 18 or
imprisoned not more than five years , or both.

(c) Disclosure of information by persons in course of pattern of activities intended
to identify and expose covert agents
Whoever, in the course of a pattern of activities intended to identify and expose
covert agents and with reason to believe that such activities would impair or impede
the foreign intelligence activities of the United States, discloses any information that
identifies an individual as a covert agent to any individual not authorized to receive
classified information, knowing that the information disclosed so identifies such
individual and that the United States is taking affirmative measures to conceal such
individual’s classified intelligence relationship to the United States, shall be fined
under Title 18 or imprisoned not more than three years, or both.

(d) Imposition of consecutive sentences
A term of imprisonment imposed under this section shall be consecutive to any
other sentence of imprisonment.

Each of these offenses is a felony. Under 18 U.S.C. § 3571, individuals convicted
of a felony may be fined the greater of either the amount set forth in the offense statute
or an amount not more than $250,000, while the maximum fine for an organization
convicted of a felony would be the greater of the amount set forth in the offense statute
or an amount of not more than $500,000. This section also provides for an alternative
fine based on pecuniary gain or loss. If anyone has derived pecuniary gain from the
offense or if the offense results in pecuniary loss to any person, the defendant may be
fined not more than the greater of twice the gross gain or twice the gross loss, unless the
imposition of a fine under this subsection would unduly complicate or prolong the
sentencing process.

The offenses set forth in 50 U.S.C. §§ 421 (a), (b), and (c) share some elements in
common: (1) intentional disclosure5 of the identity of a covert agent6 (2) to someone not
authorized to receive classified information, (3) knowing that the information disclosed
identifies that agent, and (4) knowing further that the United States is taking affirmative
measures to conceal the agent’s intelligence relationship with the United States.

Subsections 421(a) and (b) contemplate offenses where the perpetrator has or has had
authorized access to classified information, while subsection 421(c) has no similar
requirement. Under 50 U.S.C. § 421(a), an offender must have or have had access to
classified information which identifies a covert agent. Under 50 U.S.C. § 421(b), the
perpetrator must have learned the identity of a covert agent as a result of having
authorized access to classified information. In contrast to these provisions, subsection
421(c) does not require that the perpetrator have or have had authorized access to
classified information. Rather, it provides that the perpetrator must disclose the identity
of the covert agent (1) in the course of a pattern of activities intended to identify and
expose covert agents, and (2) must make the disclosure with reason to believe that his or
her activities would impair or impede U.S. foreign intelligence activities. Subsection
426(10) defines a “pattern of activities” as involving “a series of acts with a common
purpose or objective.”

Much of the focus of attention during the consideration of the measure was upon
subsection 421(c), and its First Amendment implications.7 The Senate Judiciary and the
Conference Committee addressed these concerns at length. Both concluded that the
language of the measure would pass constitutional muster.8 The Conference Committee
characterized the goal of the provision as follows:
The record indicates that the harm this bill seeks to prevent is most likely to
result from disclosure of covert agents’ identities in such a course designed, first, to
make an effort at identifying covert agents and, second, to expose such agents
publicly. The gratuitous listing of agents’ names in certain publications goes far
beyond information thatmight contribute to informed public debate on foreign policy
or foreign intelligence activities. That effort to identifyU.S. intelligence officers and
agents in countries throughout the world and to expose their identities repeatedly ...
serves no legitimate purpose. It does not alert to abuses; it does not further civil
liberties; it does not enlighten public debate; and it does not contribute one iota to the
goal of an educated and informed electorate. Instead, it reflects a total disregard for
the consequences that may jeopardize the lives and safety of individuals and damage
the ability of the United States to safeguard the national defense and conduct an
effective foreign policy....
The standard adopted in section 601(c) applies criminal penalties only in very
limited circumstances to deter those who make it their business to ferret out and
publish the identities of agents. At the same time, it does not affect the First
Amendment rights of those who disclose the identities of agents as an integral part of
another enterprise such as news media reporting of intelligence failures or abuses,
academic studies of U.S. government policies and programs, or a private
organization’s enforcement of its internal rules.9

The Conference Committee distinguished between the main purpose of a person
engaged in “the business of ‘naming names,’” whose intent is to identify and expose
covert agents, and side effects of one’s conduct that one “anticipates but allows to occur.”
“Those who republish previous disclosures and critics of U.S. intelligence would all stand
beyond the reach of the law if they did not engage in a pattern of activities intended to
identify and expose covert agents.”10 Despite these assurances, some commentators have
questioned the constitutional sufficiency of subsection 421(c) on First Amendment
grounds, finding it over-broad, and questioning the absence of a specific intent requirement
instead of the “reason to believe” standard.11 The courts have yet to consider the issue.

Under 50 U.S.C. § 422, it is a defense to a prosecution under 50 U.S.C. § 421that,
prior to the commission of the offense, the United States publicly acknowledged or
revealed the intelligence relationship to the United States of the covert agent involved.
In addition, this provision precludes prosecution of anyone other than the person who
made the disclosure of the identity of a covert agent for a section 421 offense on the
grounds of misprision of felony, aiding and abetting, or conspiracy, unless the elements
of subsection 421(c) are satisfied. Nor is it an offense against section 421 for a person to
transmit information directly to either the House or Senate intelligence committees. An
agent cannot be prosecuted for disclosing just his own identification as a covert agent.

Section 423 requires the President, after receiving information from the Director of
Intelligence, to report to the House and Senate intelligence committees annually on
measures to protect covert agents, and other relevant information. Such reports are
exempt from any publication or disclosure requirement.

Section 424 authorizes extraterritorial jurisdiction where the offender is a U.S.
citizen or a permanent resident alien.

Under section 425, the Act may not be construed to permit withholding of
information from Congress or a committee of the House or Senate. Finally, section 426
includes the definitions of terms used in this subchapter.

There do not appear to be any published cases involving prosecutions under thisAct.
Depending upon the circumstances of a given case, other criminal statutes may also be
implicated.12

Endnotes

1 Act of July 26, 1947, c. 343, Title VI, §§ 601-606, as added by P.L. 97-200, § 2(a), 96 Stat. 122
(June 23, 1982). The definitions section, 50 U.S.C. § 426, and fine provisions, 50 U.S.C. §§
421(a), (b), and (c), were amended in 1999 by P.L. 106-120, Title III, §§ 304(a) and (b), 113
Stat. 1611 (Dec. 3, 1999), while the defenses and exceptions provision in 50 U.S.C. § 422 and
the reporting requirements in 50 U.S.C. § 423 were amended in 2002 by P.L. 107-306, Title III,
§§ 353(b)(1)(B), 353(b)(9), and Title VIII, § 811(b)(1)(E), 116 Stat. 2402, 2422 (Nov. 27, 2002).

2 S. Rep. 97-201, at 1, reprinted in 1982 U.S.C.C.A.N. 145. In this report, the Senate Judiciary
Committee reviewed the legislative history of S. 391 and the companion bill, H.R. 4, and their
predecessors beginning with proposals in the 94th and 95th Congresses. The Congress passed H.R.
4, in lieu of the Senate bill, after amending the House bill to encompass much of the language of
the Senate bill.

3 S. Rep. 97-201,at 1-7, reprinted in 1982 U.S.C.C.A.N. at 145-51. S. Rep. 97-201, 7-10,
reprinted in 1982 U.S.C.C.A.N. at 151-54. See also, H.R. 4, The Intelligence Identities
Protection Act: Hearings before the Subcomm. on Legislation of the House Permanent Select
Comm. on Intelligence,, 97th Cong., 1st Sess. (1981); Intelligence Identities Protection Act of 1981
—S. 391: Hearing before the Subcomm. on Security and Terrorism of the Senate Comm. on the
Judiciary, 97th Cong., 1st Sess. (1981).

4 S. Rep. 97-201, at 7-10, reprinted in 1982 U.S.C.C.A.N. at 151-54.

5 50 U.S.C. § 426 (3) defines “disclose” to mean “to communicate, provide, impart, transmit,
transfer, convey, publish, or otherwise make available.”

6 50 U.S.C. § 426(4) defines “covert agent” to mean:
(A) a present or retired officer or employee of an intelligence agency or a present or
retired member of the armed forces assigned to duty with an intelligence agency—
(i) whose identity as such an officer, employee, or member is classified
information, and
(ii) who is serving outside the United States or has within the last five years
served outside the United States; or
(B) a United States citizen whose intelligence relationship to the United States is
classified information, and—
(i) who resides and acts outside the United States as an agent of, or informant
or source of operational assistance to, and intelligence agency, or
(ii) who is at the time of the disclosure acting as an agent of, or informant to, the
foreign counterintelligence or foreign counterterrorism components of the
Federal Bureau of Investigation; or
(C) an individual, other than a United States citizen,whose past or present intelligence
relationship to the United States is classified information and who is a present or
former agent of, or a present or former informant or source of operational assistance
to, an intelligence agency.

7 U.S. CONST. Amend I. H. Conf. Rep. 97-580, at 6-8; reprinted in 1982 U.S.C.C.A.N., at 170-
72.

8 S. Rep. 97-201, at 14-18; reprinted in 1982 U.S.C.C.A.N., at 158-62; H. Conf. Rep. 97-580,
at 7-10; reprinted in 1982 U.S.C.C.A.N., at 171-75.

9 H. Conf. Rep. 97-580, at 7-8; reprinted in 1982 U.S.C.C.A.N., at 171-72.

10 H. Conf. Rep. 97-580, at 9-10; reprinted in 1982 U.S.C.C.A.N., at 173-74.

11 “Note: The Constitutionality of the Intelligence Identities Protection Act,” 83 Colum. L. Rev.
727 (1983); “Note: The Intelligence Identities Protection Act of 1982: An Assessment of the
Constitutionality of Section 601(c),” 49 Brooklyn L. Rev. 479 (1983).

12 See, e.g., 18 U.S.C. § 111 (assaulting, resisting or impeding federal officers or employees
while engaged in or on account of the performance of official duties); 18 U.S.C. § 371
(conspiracy to commit a federal offense); 18 U.S.C. § 641 (theft or knowing conversion to one’s
own use or the use of another of government property or thing of value); 18 U.S.C. § 793
(gathering, transmitting, or losing information relating to the national defense); 18 U.S.C. § 794
(gathering or delivering defense information to aid a foreign government; among other things,
this section provides for a possible death penalty upon conviction upon a finding that the offense
resulted in the identification by a foreign power of an individual acting as an agent of the United
States and consequently resulted in the death of that individual); 18 U.S.C. § 1114 (killing or
attempting to kill an officer or employee of the United States or an agency thereof while the
officer or employee is engaged in or on account of performance of official duties). For a recent
discussion of the application of 18U.S.C. § 641 to leaks of confidential government information,
see “Stealing Information: Application of a Criminal Anti-Theft Statute to Leaks of Confidential
Government Information,” 55 Fla. L. Rev. 1043 (2003).