Laws and Directives

Enabling Intelligence Work

Or Counter-Terrorism

By The U.S. Intelligence Community

MILNET Research Aid:  Documents that Recommend Changes to the Intelligence Community

In the following paragraphs, we outline major aspects of various legal actions taken by the U.S. legislature. In many cases, the legislation is incremental, that is, approves all previous legislation, modifies that older legislation, or makes additions. In our research, the only exception to this statements occurred during fights between Congress and a minority party President over War Operations, or Clandestine Operations (such as President Reagan and the Contras). For more information on this and related topics, see Hughes-Ryan Act. One exception to the stated exception is the rescinding of the ability for CIA covert operations to assassinate world leaders by President Ford in February of 1976 (see below).

National Security Act of 1947

Established the Central Intelligence Agency, giving the DCI the authority to protect secrets, specifically sources and methods. The agency would receive its funds directly from Congress in a lump sum so as to insure secrecy of activity and of which there would be no accounting outside the agency. Details of the types of overt and covert information collection sources were spelled out and the drafters of the act thought that the CIA should have an "instant" capability for subversive operations. Note the use of capability rather than establishing the the CIA could actually execute subversive operations.

Is is said that NSA47 also contains the language spelling out the tasks of the National Security Agency, however this section of the act is classified.

NSC Directive 4/A

December, 1947, placed the CIA in charge of covert "psychological" operations, with the US State Department supplying policy guidance. 1

Un-numbered Document, 1948

Truman, Forrestal, and Marshall overruled DCI Hillenkoetter thus allowing James Angleton to set up a covert operation in Italy to counter communist subversion of the Italian government.

NSC Directive 10/2

June 1948, superseded NSC Directive 4/A, established a covert operational branch within the CIA in the interests of world peace and US national security. Specifically, its covert operations would have to be of a type for which "the US Government can plausibly disclaim any responsibility" (plausible deniability), and could not involve "armed conflict by recognized military forces". Activities premitted included "propaganda; economic warfare; preventive direct action, including sabotage, anti-sabotage, demolition, and evacuation measures; subversion against hostile states, including assistance to underground resistance movements, guerillas and refugee liberation groups, and support of indigenous anti-communist elements in threatened countries of the free world".

The "10/2 Panel" containing representatives from the Department of Defense and Department of State, was given the responsiblity to supervise covert operations with the NSC being the mediator on disputes. 2

Note that post 9/11, the CIA in Afghanistan used military equipment purcased or loaned to CIA operatives and operated by CIA operatives to kill Taliban and/or Al Qaeda personnel using an armed Predator, the first used of  a Unmanned Combat Aerial Vehicle (UCAV).

Central Intelligence Act of 1949

Authorized the Director of Central Intelligence to receive, exchange, and spend money without giving account to Congress in accordance with the laws governing other agencies. It also authorized special training for CIA officers as well as other administrative things such as employment conditions; hiring practices (storage or shipment of household goods, etc.); allowed CIA to borrow personnel from other agencies or the military; to ignore immigration laws in recruiting up to 100 defecters per year; and gave the DCI the authority to declare and keep secrets.

NSC Directive 68

04/14/50, called for nuclear and conventional arms build up as well as covert operations to subvert Communist regimes. 3

McCarren Act of 1951

Passed via override of Truman's veto, placed severe restrictions on civil liberties, also known as the internal security law. Chief concern to intelligence agencies was the provision which prohibited the admission to the U.S. of territory and citizenship of radical aliens, thus cutting off the supply of valuable defectors.

Communications Intelligence Activities Memorandum

Approximate date, 10/24/52, President Harry S. Truman, an eight page document, only now partially declassified, abolishing the Armed Forces Security Agency and placing their resources into the new National Security Agency. Specifically gives to the NSA the control over, and coordination of, the collection and processing of Communications Intelligence. NSA considered to be "within but not part of the DOD". 6

NSC Directive 5412/I

03/12/55, Defines covert operations as "all activities...so planned and executed that any U.S. Government responsibility for them is not evident to unauthorized persons and that if uncovered the U.S. Government can plausibly disclaim any responsibility for them." Thus we have plausible deniability. It also listed the covert operations the CIA was expected to undertake as:

"Propoganda, political action; economic warfare; escape and evasion and evacuation measures; subversion against hostile states or groups including assistance to underground movements, guerillas and refugee liberation groups; support of indigenous and anti-communist elements in threatened countries of the free world; deception plans and operations; and all activities compatible with this directive necessary to accomplish the foregoing." 4

NSC Decision Memorandum 40, 1970

February 17, 1970, established the 40 Committee to oversea covert operations just as in the 303 Committee and Special Groups had in the past, in this case, the 40 Committee was made up of the Chairman, Henry Kissinger (Nixon's Foreign Policy Advisor) as the Chairman of the committee, the Deputy Secratary of State, the Deputy Secratary of Defense, the Chairman of the Joint Chiefs of Staff, and DCI Richard Helms.

The Committee quickly established the following set of requirements of covert operations that would be brought before the Committee for review:

1971 Fund Cuts for CIA SEA Action

12/71, Congress cut off CIA funds for use in Laos and Cambodia. Proposed by Senator Clifford P. Case in July of 1971, prohibiting the use of funds to pay for U.S. paramilitary operations in Cambodia and Laos (especially prohibiting the CIA).

Case-Zablocki Act of 1972

Insisted on Congressional review of all executive agreements.

War Powers Act of 1973

Prohibited the President from waging war for more than sixty days without congressional approval.

HUGHES-RYAN ACT OF 1974

Amendment to the Foreign Assitance Act of 1974, requiring the President to report and nonintelligence CIA operations to relevant Congressional committees (at the time this numbered around 8 committee) in a timely fashion.

Church Committee, 1974

On January 27, 1974, the U.S. Senate voted to create the Select Committee to Study Governmental Operations with Respect to Intelligence Activities. During the study, a complete history of the CIA was documented by Anne Karalekas. 1

Clark Amendment, 1975

1/75, the House passed this amendment (having already been passed in the Senate) to cut off funds for covert operations in Angola.

House Select Committee on Intelligence, 1975

02/19/75, created by the U.S. House of Representatives to provide House oversight in addition to Senate oversight, since the House provides all appropriations. The Committee was made the House Permanent Committee on Intelligence on July 14, 1977.

Senate Select Committee on Intelligence, 1976

05/19/76, US Senate voted to establish their own committee to oversee Intelligence operations in the U.S.

1976 Presidential Directive

2/18/76: Henry Kissinger, Chairman of the NSC under Ford, created the Committee on Foreign Intelligence reporting to the NSC Chairman, with the DCI as the chair of the new Committee. Ford also replaced the 40 Committee with a five-man Operations Advisory Group. Ford also outlawed assassination as an instrument of American Policy. In this directive he also detailed the CIAs domestic duties, and accepted the principle of a joint Congressional oversight committee. Congress did not set up a joint committee however, the House and Senate each having their own committees.

Presidential Executive Order 12036, 1978

President Carter, reiterating changes made by his predecessor Gerald Ford, retention of the Intelligence Oversight Board to monitor activities possibly involving illegality or impropriety, listed a number of prohibited activities which might concievably impinge upon the rights or privacy of U.S. citizens and resident aliens. The order was rescinded until 1981.

Foreign Intelligence Surviellance Act of 1978 (FISA)

10/25/78: Following the lead by the Carter administration, Congress passed this law which legalizes the use of wiretaps and bugs in suspected cases of foreign espionage, terrorism, and sabotage; but only after a case by case review by a new set of Federal Judges, who must issue a Federal Warrant.  The FISA courts opened the way for special warrants recognizing the need to allow increased surveillance of foreign officers and agents in this country who have been recruited or under recruitment.  However, shortly after the FISA laws went into effect, civil libertarians, through a heavy influx of frivolous lawsuits, began to hamper the day-to-day activities of the Justice Department, resulting in conservative interpretation of the FISA process, with government agents reducing their use of the FISA system. Not until after 9/11/2001 did the broken process come to light, specially at the testimony of several FBI agents in a case where a FISA warrant might have led to the uncovering of information that would lead to uncovering the plot to fly aircraft into the World Trade Center.


Classified Information Protection Act of 1980

Sets a procedure for revealing of sensitive classified information in a trial, such that only a few of the people in the trial may see it, and who must also sign an oath not to reveal any part of the information. It's intent is to allow the course of justice to continue in cases where the government pleads that release of information needed in the case will damage National Security if released to the public.

This law was used in the April 1986 trial of former U.S. Army Intelligence agent Richard C. Smith who was acquitted of all charges. Smith's story was that he had been an agent posing, at the bequest of the CIA, as a disgruntled former Intelligence officer to entrap KGB agents.

Althought the story was never confirmed, certainly there was not enough evidence to the contary leaving room for much doubt in the government's case and Smith was acquitted.

Intelligence Authorization Act of 1981

In the case of necessary immediate action, only the Chairman and Vice Chairman of each committee, and the majority leaders of the Senate and House would have to be notified with a follow on briefing when time permitted. The method for notification was specified as a "finding" which would fully describe the activity, and be given to Congress within a reasonable period of time following the activity beginning.

Presidential Directive 12333, 1981

President Reagan, on December 12, 1981, re-issued (as each President must do as part of the transition process) the Presidental Directive which defines the U.S. Intelligence community and its tasks. In this directive, Reagan is purported to have allowed more scope to spy at home and to follow up the domestic dimensions of foreign agent activity with which it was concerned. CIA was given more power to act within the confines of the U.S., but only where surveillance or covert activities did not target U.S. corporations or citizens, and where such activities are not intended to influence U.S. political processes, public opinion or the media.  Reagan was determined to make full use of the FISA system, however, gun-shy managers in the DOJ (specifially the FBI) appear to have "lowballed" their efforts until after Reagan departed, then returned to their business as usual.

Boland Amendment, 1982

12/08/82, Introduced by the chairman of the House Intelligence Committee, Edward P. Boland, prohibiting intelligence agencies from providing military equipment, training or support to anyone "for the purpose of overthrowing the Government of Nicaragua". 5

House Intelligence Identities Act of 1982

06/82, protects against disclosure of the identities of agents either directly or through release of incriminating information. Provides for penalities for those who named names in a deliberate attempt to harm the U.S. Intelligence effort.

Amendment to the Freedom of Information Act, 1984

11/84, sponsored by Senator Barry Goldwater, Head of the Senate Select Committee on Intelligence, exempts CIA employees from responding to Freedom of Information Act requests except where such requests are from former employees of the CIA who are in legal action with the government. Additional Information on the Freedom of Information Act is well organized by John Greenawald, Jr. at his site.

Army Intelligence Oversight Regulation

According to Antonio Rucci of U.S. Army Intelligence, the law that governs what Army Intelligence CAN do in terms of domestic surveillance, AR381-10 is the Army's Intelligence Oversight regulation which breaks down what we "can" legally do as part of our investigations." 7 It includes "...15 separate 'procedures' or categories." Mr. Rucci points out in the discussion, that the regulation specifying what is legal and how to ensure activity is kept legal is a protection for Army Intelligence agents...keeping them out of jail. A rather nice way of putting it, in our opinion.  In actuality, the regulations are not actually based upon direct association to law and many have been rescinded or modified since 9/11/2001.

SR735: Antiterrorism and Effective Death Penaly Act of 1996

The act makes terrorism a federal crime punishable by death, as well as aids in the investigation, capture, and trial of terrorists in the United States, and includes provisions that allow U.S. deportation proceeedings without being compelled by Terrorists to divulge classified information. Disallows fundraising in the U.S. that supports terrorist organizations, and bars terrorists from entering the U.S.  This legislation is presumed to be a result of both International and Domestic terrorism incidents in the U.S. prior to 9/11/2001.

Patriot Act of 2001

This act pays special attention to certain conditions in U.S. Statutes that prohibit or hinder investigations of terrorist activities in the U.S. as well as money laundering and transmittal to foreign agents within the United States or pass thru transactions to foriegn financial institutions that provide funds to terrorists or their financial representatives.  The Act also provides for border control and personnel to conduct that border control,   For each of the titled sections, a limit on the effective period is set, typically to the year 2005, and Congressional oversight and reporting is required including appropriate Secretary analysis of the effectiveness of the Act in their specific area of jurisdiction as well as requests as necessary for additional legislative action as required to further the goals of the act.  The Act has a large number of provisions, and the link above should serve to summarize the various elements and provisions.


Intelligence Reform and Terrorism Prevention Act of 2004

Made into public law on 12/17/2004 as Public Law 108-458, the law essentially implements the intelligence arena and anti-terrorism recommendations of the 9/11 Commission.  It creates a National Intelligence Director who overseas all the 15 agencies (an intelligence czar) in the U.S. Intelligence Community.  The law also shores up provisions of the Patriot Act and the FISA court statutes.


S.1266, Making Permanent Certain Provisions of the Patriot Act of 2001

Enacted on  6/2005, the bill extends (makes permanent in some cases) provisions of the Patriot Act and changes to FISA).


Electronic Surveillance Modernization Act

July 18, 2006:  Makes additional changes to FISA and the Patriot Act, granting emergency powers to the Attornery General or the President in order to eliminate delays created which would now allow rapid intelligence and surveillance  response to terrorist attacks on the United States.  Sets time limits to these emeregency powers and makes it clear surveillance of U.S. citizens remains in the purvue of the FISA court.




Bibliography

(also see the MILNET Bibliography)

1. History of hte Central Intelligence Agency, Anne Karalekas, in "Supplementary Detailed Staff Reports on Foreign and Military Intelligence", Final Report of the Select Committee to Study Govermental Operations with Respect to Intelligence Activities, Book 4), "Senate Report", 94 Congress, 2nd Session, no 94-755, April 23, 1976, also printed seperately as "History of the Central Intelligence Agency", Anne Karalekas, Copyright 1977, Aegean Park Press, Laguna Hills, CA. Page 50.

2. Quoted as coming from "Souers interview", in CIA and American Democracy, Rhodri Jeffreys-Jones, Copyright 1989, Yale University Press, New Haven and London, Printed in the U.S. by Vail- Ballou Press, Binghamton, New York. ISBN 0-300-04149-7, Page 55.

3. Ibid, pg. 62

4. quoted in "The CIA and the Intelligence Community", Paul W. Blackstock, Copyright 1974,

Forum Press, St. Charles, Mo.

5. Viel: The Secret Wars of the CIA 1981-1987, Bob Woodward, Copyright 1987, Simon & Schuster, Simon & Schuster Building, Rockefeller Center, 1230 Avenue of the Americas, New York, N.Y., 10020.

ISBN 0-671-60117- 2.

6. The U.S. Intelligence Community, Jeffry T. Richelson, Copyright 1989, Ballinger Publishing Company, 54 Church Street, Harvard Square, Cambridge, Massachusetts, 02138. ISBN 0-88730-226-2

7. OSPro-L April 97 #3, WWW, Antonio A. Rucci

8.  IC Legal Reference Book,  The Office of the Director of National Intelligence, Fall 2007

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Last Updated: 8/2008