Congressional Record (07 May 1998) [Page: H2970]

Ms. WATERS. Mr. Chairman, this amendment would call for a review of the 1995 memorandum of understanding that currently exists between the Director of Central Intelligence and the intelligence community and the Department of Justice regarding reporting of information concerning Federal crimes.

This amendment is very simple and noncontroversial. It calls for a review of the current memorandum of understanding to ensure that drug trafficking and drug law violations by anybody in the intelligence community is reported to the Department of Justice. Specifically, the review would examine any requirements for intelligence employees to report to the Director of Central Intelligence and any requirements for the Director to report this information to agencies.

This information would be reported to the Attorney General. The review would be published publicly. This simple amendment fits well with the recent calls for a reinvigorated war on drugs. The need for this amendment, however, cannot be understated.

One of the most important things that came out of the hearing of the House Permanent Select Committee on Intelligence was an understanding about why we did not know about who was trafficking in drugs as we began to investigate and take a look at the allegations that were being made about the CIA's involvement in drug trafficking in south central Los Angeles and the allegations that profits from that drug trafficking was going to support the Contras.

We discovered that for 13 years the CIA and the Department of Justice followed a memorandum of understanding that explicitly exempted the requirement to report drug law violations by CIA non-employees to the Department of Justice. This allowed some of the biggest drug lords in the world to operate without fear that the CIA would be required to report the activity to the DEA and other law enforcement agencies.

In 1982, the Attorney General and the Director of Central Intelligence entered into an agreement that excluded the reporting of narcotics and drug crimes by the CIA to the Justice Department. Under this agreement, there was no requirement to report information of drug trafficking and drug law violations with respect to CIA agents, assets, non-staff employees and contractors. This remarkable and secret agreement was enforced from February 1982 to August of 1995. This covers nearly the entire period of U.S. involvement in the Contra war in Nicaragua and the deep U.S. involvement in the counterinsurgency activities in El Salvador and Central America.

Senator Kerry and his Senate investigation found drug traffickers had used the Contra war and tie to the Contra leadership to help this deadly trade. Among their devastating findings, the Kerry committee investigators found that major drug lords used the Contra supply networks and the traffickers provided support for Contras in return. The CIA of course, created, trained, supported, and directed the Contras and were involved in every level of their war.

The 1982 memorandum of understanding that exempted the reporting requirement for drug trafficking was no oversight or misstatement. Previously unreleased memos between the Attorney General and Director of Central Intelligence show how conscious and deliberate this exemption was.

On February 11, 1982, Attorney General French Smith wrote to DCI William Casey that, and I quote, this is what he said:

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I have been advised that a question arose regarding the need to add narcotics violations to the list of reportable non-employee crimes . . . no formal requirement regarding the reporting of narcotics violations has been included in these procedures.

On March 2, 1982 William Casey responded:

I am pleased these procedures which I believe strike the proper balance between enforcement of the law and protection of intelligence sources and methods will now be forwarded to other agencies covered by them for signing by the heads of those agencies.

My colleagues heard me correctly.

The CHAIRMAN. The time of the gentlewoman from California (Ms. Waters) has expired.

(By unanimous consent, Ms. Waters was allowed to proceed for 3 additional minutes.)

Ms. WATERS. Mr. Chairman, the fact that President Reagan's Attorney General and Director of Central Intelligence thought that drug trafficking by their assets agents and contractors needed to be protected has been long known. These damning memorandums and the resulting memorandum of understanding are further evidence of a shocking official policy that allowed the drug cartels to operate through the CIA-led Contra covert operations in Central America.

This 1982 agreement clearly violated the Central Intelligence Agency Act of 1949. It also raises the possibility that certain individuals who testified in front of congressional investigating committees perjured themselves.

Mr. Chairman, every American should be shocked by these revelations. Given the shameful history of turning a blind eye to CIA involvement with drug traffickers, this amendment seeks to determine whether the current memorandum of understanding closes all of these loopholes to the drug cartels and narcotics trade.

At this time I know that there is a point of order against my amendment. The chairman of the committee is going to oppose this amendment, and so I am going to withdraw the amendment. But I wanted the opportunity to put it before this body so that they could understand that we had an official policy and a memorandum of understanding that people could fall back on and say I did not have to report it. Yes, I knew about it.

We have a subsequent memorandum of understanding of 1995 that is supposed to take care of it. I am not sure that it does.

Mr. Chairman, I submit for the Record the following correspondence between William French Smith and William J. Casey:

Office of the Attorney General,
Washington, DC, February 11, 1982.

Hon. William J. Casey,
Director, Central Intelligence Agency, Washington, DC.

Dear Bill: Thank you for your letter regarding the procedures governing the reporting and use of information concerning federal crimes. I have reviewed the draft of the procedures that accompanied your letter and, in particular, the minor changes made in the draft that I had previously sent to you. These proposed changes are acceptable and, therefore, I have signed the procedures.

I have been advised that a question arose regarding the need to add narcotics violations to the list of reportable non-employee crimes (Section IV). 21 U.S.C. 874(h) provides that `[w]hen requested by the Attorney General, it shall be the duty of any agency or instrumentality of the Federal Government to furnish assistance to him for carrying out his functions under [the Controlled Substances Act] . . .' Section 1.8(b) of Executive Order 12333 tasks the Central Intelligence Agency to `collect, produce and disseminate intelligence on foreign aspects of narcotics production and trafficking.' Moreover, authorization for the dissemination of information concerning narcotics violations to law enforcement agencies, including the Department of Justice, is provided by sections 2.3(c) and (i) and 2.6(b) of the Order. In light of these provisions, and in view of the fine cooperation the Drug Enforcement Administration has received from CIA, no formal requirement regarding the reporting of narcotics violations has been included in these procedures. We look forward to the CIA's continuing cooperation with the Department of Justice in this area.

In view of our agreement regarding the procedure, I have instructed my Counsel for Intelligence Policy to circulate a copy which I have executed to each of the other agencies covered by the procedures in order that they may be signed by the head of each such agency.

Sincerely,

William French Smith,
Attorney General.

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THE DIRECTOR OF

Central Intelligence,
Washington, DC, March 2, 1982.

Hon. William French Smith,
Attorney General, Department of Justice, Washington, DC.

Dear Bill: Thank you for your letter of 11 February regarding the procedures on reporting of crimes to the Department of Justice, which are being adopted under Section 1-7(a) of Executive Order 12333. I have signed the procedures, and am returning the original to you for retention at the Department.

I am pleased that these procedures, which I believe strike the proper balance between enforcement of the law and protection of intelligence sources and methods, will now be forwarded to other agencies covered by them for signing by the heads of those agencies.

With best regards,

Yours,
William J. Casey.

Enclosure.

Reporting and Use of Information Concerning Federal Crimes

I. SCOPE

Section 1-7(a) of Executive Order 12333 requires senior officials of the Intelligence Community to:

Report to the Attorney General possible violations of federal criminal laws by employees and of specified federal criminal laws by any other person as provided in procedures agreed upon by the Attorney General and the head of the department or agency concerned, in a manner consistent with the protection of intelligence sources and methods, as specified in those procedures.

These procedures govern the reporting of information concerning possible federal crimes to the Attorney General and to federal investigative agencies acquired by agencies within the Intelligence Community in the course of their functions. They also govern the handling and use of such information by the Department of Justice and federal investigative agencies in any subsequent investigations or litigation. These procedures are promulgated under the authority of 28 U.S.C. 535 and Executive Order 12333, Sec. 1-7(a).

II. DEFINITIONS

A. `Agency' means those agencies within the Intelligence Community, as defined in Executive Order 12333, 3-4(f) except for the intelligence elements of the Federal Bureau of Investigation and the Department of the Treasury.

B. `Department' means the Department of Justice.

C. `Employee' means:

1. A staff employee or contract employee of an Agency;

2. Former officers or employees of an Agency, for purposes of offenses committed during their employment; and

3. Former officers or employees of an Agency, for offenses involving a violation of 18 U.S.C. 207.

D. Except as specifically provided otherwise, `General Counsel' means the general counsel of the Agency or the department of which it is a component or a person designated by him to act on his behalf.

III. GENERAL CONSIDERATIONS

A. These procedures govern the reporting of information which the Agency or its current employees become aware of in the course of performing their functions. They do not authorize the Agency to conduct any investigation or to collect any information not otherwise authorized by law.

B. These procedures require a current employee of the Agency to report to the General Counsel facts or circumstances that appear to the employee to indicate that a criminal offense may have been committed. Reports to the Department of Justice or to a federal investigative agency will be made by the Agency as set forth below.

C. When an Agency has received allegations, complaints or information [hereinafter `allegations'] tending to show that an employee of that agency may have violated any federal criminal statute, or another person may have violated a federal criminal statute contained within one of the categories listed in Section IV below, the Agency shall within a reasonable period of time determine through a preliminary inquiry whether or not there is any basis to the allegations (that is, are clearly not frivolous or false). If the allegations can be established as without basis, the General Counsel will make an appropriate record of his findings and no reporting under these procedures is required. If the allegations cannot be established as without basis, the reporting procedures set forth below will be followed. A preliminary inquiry shall not include interviews with persons other than current employees of the Agency or examination of premises not occupied by the Agency without the prior notification and approval of the Department of Justice, except that the Agency may interview a non-employee for the sole purpose of determining the truth of a report that such non-employee has made an allegation or complaint against an Agency employee. The foregoing provisions shall neither limit the techniques which the Agency may otherwise be authorized to use, nor limit the responsibility of the Agency to provide for its security functions pursuant to Executive Order 12333.

D. Allegations shall be reported pursuant to the procedures in effect at the time the allegations came to the attention of the Agency.

E. Allegations that appear to involve crimes against property and involve less than $500 need not be reported pursuant to the procedures set forth below. The General Counsel will, however, make an appropriate record of his findings.

F. In lieu of following the procedures set forth below, the General Counsel may orally report periodically, but at least quarterly, to the Department concerning those offenses which, while subject to these reporting requirements, are in the opinion of the General Counsel of such a minor nature that no further investigation or prosecution of the matter is necessary. If an oral report is made, the General Counsel will meet with the Assistant Attorney General or a designated Deputy Assistant Attorney General of the Criminal Division, Department of Justice to obtain his concurrence or nonconcurrence with the General Counsel's opinion. If such concurrence is obtained, no further reporting under these procedures is required. If concurrence is not obtained, the reporting procedures set forth below will be followed.

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IV. NON-EMPLOYEE REPORTABLE OFFENSES

A. Allegations concerning offenses in the following categories are reportable, if they pertain to a person other than an employee.

1. Crimes involving intentional infliction or threat of death or serious physical harm. Such crimes may include:

Assault--18 U.S.C. 111-113(A).

Homicide--18 U.S.C. 1111-14, 1116, 2113(e).

Kidnapping--18 U.S.C. 1201.

Presidential assassination, assault or kidnapping--18 U.S.C. 1751.

Threats against the President and successors to the President--18 U.S.C. 871.

2. Crimes likely to impact upon the national security, defense or foreign relations of the United States. Such crimes may include:

Communicating classified information--50 U.S.C. 783(b).

Espionage--18 U.S.C. 793-98.

Sabotage--18 U.S.C. 2151-57.

Arms Export Control Act--22 U.S.C. 2778.

Atomic Energy Act--* * * U.S.C. 2077, 2092, 2111, 2122.

Export Administration Act--50 U.S.C. App. 2410.

Neutrality offenses--18 U.S.C. 956-60.

Trading with the Enemy Act--50 U.S.C. App. 5(b), 16.

Agents of foreign government--18 U.S.C. 951.

Government employee acting for a foreign principal--18 U.S.C. 219.

Communication, receipt or disclosure of restricted data--42 U.S.C. 2274-77.

Registration of certain persons trained in foreign espionage systems--50 U.S.C. 851.

Foreign Agents Registration Act--22 U.S.C. 618(a).

Unlawfully entering the United States--8 U.S.C. 1325.

Any other offense not heretofore listed which is contained within Chapter 45 of Title 18 U.S.C.

3. Crimes involving foreign interference with the integrity of United States governmental institutions or processes. Such crimes may include, when committed by foreign persons:

Bribery of public officials and witnesses--18 U.S.C. 201-208.

Conspiracy to injury or impede an officer--18 U.S.C. 372.

Election contributions and expenditures--2 U.S.C. 441a-j, 599-600.

4. Crimes which appear to have been committed by or on behalf of a foreign power or in connection with international terrorist activity. Such crimes may include:

Aircraft piracy--49 U.S.C. 1472(i).

Distribution, possession, and use of explosives--18 U.S.C. 842(a)-(i).

Unlawful electronic surveillance--18 U.S.C. 2511(l), 2512(l), 50 U.S.C. Sec. 1809.

Passport and visa offenses--18 U.S.C. 1541-44, 1546.

Distribution, possession, transfer, and use of firearms--18 U.S.C. 922, 924; 26 U.S.C. 5861.

Transporting explosives on board aircraft--49 U.S.C. 1472(h).

Conspiracy to injure or impede an officer--18 U.S.C. 372.

Counterfeiting U.S. obligations--18 U.S.C. 471-74.

False statements and false official papers--18 U.S.C. 1001-02, 1017-18.

Obstruction of justice--18 U.S.C. 1503-06, 1508-10.

Perjury--18 U.S.C. 1621-23.

B. Any conspiracy or attempt to commit a crime reportable under this section shall be reported if the conspiracy or attempt itself meets the applicable reporting criteria.

C. The General Counsel will make an appropriate record of any matter brought to his attention which he determines is not reportable under this section.

D. Notwithstanding any of the provisions above, the General Counsel may report any other possible offense when he believes it should be reported.

V. REPORTING PROCEDURES--FORMAT

The fact that a referral has been made pursuant to these procedures shall be reflected in a letter or memorandum sent by the Agency to the entity designated to receive the referral under these procedures. In each instance that a referral is required, information sufficiently detailed to allow the Department of Justice to make informed judgments concerning the appropriate course of subsequent investigations or litigation shall be transmitted, either orally or in writing, to the Attorney General, the Assistant or a designated Deputy Assistant Attorney General, Criminal Division, Department of Justice, or the Assistant Director, Criminal Investigative or Intelligence Division, Federal Bureau of Investigation. The Agency shall supplement its referral when any additional information relating to the original referral comes to its attention.

VI. REPORTING PROCEDURES--NO SECURITY CONSIDERATIONS INVOLVED

A. Where the Agency determines in accordance with these procedures that a matter must be reported, and where the Agency further determines that no public disclosure of classified information or intelligence sources and methods would result from further investigation or prosecution, and the security of ongoing intelligence operations would not be jeopardized thereby, the Agency will report the matter to the appropriate federal investigative agency, or to the appropriate United States Attorney for an investigative or prosecutive determination. In each such instance, the Agency shall also notify the Department of Justice, Criminal Division of the referral.

B. The Agency will inform the entity receiving such report that, unless notified otherwise by the Agency or by the Department, the security and consulting requirements set forth in Section VII of these procedures need not be followed.

C. A federal investigative agency or United States Attorney receiving information from the Agency pursuant to Section VI of these procedures is required promptly to advise the Agency of the initiation and conclusion of any investigation or prosecution involving such information.

VII. REPORTING PROCEDURES--SECURITY CONSIDERATIONS INVOLVED

A. Where the Agency determines in accordance with these procedures that a matter must be reported, and where the Agency also determines that further investigation or prosecution of the matter would or might result in a public disclosure of classified information or intelligence sources or methods or would jeopardize the security of ongoing intelligence operations, the Agency will report the matter to the Assistant Attorney General or a designated Deputy Assistant Attorney General, Criminal Division, Department of Justice or Assistant Director, Criminal Investigative or Intelligence Division, Federal Bureau of Investigation, in the manner described in section V, above. In any instance in which a matter is reported to the Federal Bureau of Investigation, the Agency shall also notify the Department of Justice, Criminal Division of the referral. Upon request, the Agency will explain the security or
operational problems that would or might arise from a criminal investigation or prosecution.

B. Persons who are the subject of reports made pursuant to this section may be identified as John Doe XXX in any written document associated therewith. The true identities of such persons will be made available when the Department of Justice determines that they are essential to any subsequent investigation or prosecution of the matter reported.

C. Information contained in Agency reports will be disseminated to persons other than the Assistant or Deputy Assistant Attorney General or the Assistant Director, Criminal Investigative or Intelligence Division, FBI, only as follows:

1. No Department or Federal investigative employee will be given access to classified information unless that person has been granted appropriate clearances, including any special access approvals. The Assistant or Deputy Assistant Attorney General or the Assistant Director, Criminal Investigative or Intelligence Division, FBI, will ensure that access by an employee is necessary for the performance of an official function and that access is limited to the minimum number of cleared persons necessary for investigative or prosecutorial purposes. The Department will provide the head of the Agency with a detailed report regarding any disclosure not authorized by these procedures and will take appropriate disciplinary action against any employee who participates in such a disclosure.

2. With regard to information reported to the Criminal Division, Department of Justice, which the general counsel of an Agency designates in writing as particularly sensitive and for which special dissemination controls are requested pursuant to this provision, dissemination will only occur after consultation with the General Counsel of the Agency. The designation of information as particularly sensitive may be made only by the general counsel or acting general counsel of an Agency.

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3. Except as permitted by these procedures, classified information which has been received by the Department, the FBI, or other federal investigative agency pursuant to these procedures may not be disseminated outside of that entity without the advance written consent of the General Counsel or the head of the Agency.

D. When it becomes apparent to the Department or federal investigative agency that any investigative or legal action may result in the disclosure of classified information or intelligence sources or methods, the Department or federal investigative agency will, at the earliest possible time, fully advise and consult with the Agency to determine the appropriate course of action and the potential harm to intelligence sources and methods by the contemplated use or disclosure of the classified information. Except in exigent circumstances no investigative or legal action will be taken without such advance notice and consultation.

1. `Exigent circumstances' means situations in which a person's life or physical safety is reasonably believed to be in imminent danger, or information relating to the national security is reasonably believed to be in imminent danger of compromise, or expiration of a statute of limitations is imminent, or loss of essential evidence in any of these cases is imminent, or a crime is about to be committed, or the opportunity to arrest a person is about to be lost where there is probable cause to believe that the person has committed a crime.

2. If, due to exigent circumstances, any investigation or significant contemplated action in any legal proceeding is taken without advance notice or consultation, the Department or federal investigative agency, within twenty-four hours of taking such action, will provide the reporting agency an explanation of the circumstances requiring that action. Thereafter, there will be full adherence to the notification and consultation requirements of these procedures.

3. For purposes of this provision, consultation will include the specific investigative and legal actions the Department or federal investigative agency purposes to take and a specification of legal and investigative issues involved. The purpose of the consultation is to assure an opportunity for the Agency to provide its judgment to the Department or federal investigative agency regarding the potential damage, if any, to the national security of the disclosure or use of the information at issue. During this process, the Agency will promptly provide as detailed an identification and analysis as is possible at the time of the potential consequences for the intelligence sources or methods and for the national security from the contemplated disclosure or use of the classified information. The Agency will also
provide any changes to or elaborations of this analysis as soon as they become evident.

4. If the Agency and the Department or federal investigative agency agree that the risk of the use or disclosure and any resulting consequences are acceptable, the contemplated investigative or legal action may commence or proceed.

5. If the Agency and the Department of Justice or federal investigative agency are unable to agree as to the appropriate use of classified information provided pursuant to these procedures by the Agency, each entity will be responsible for pursuing timely resolution of such issues as may exist through appropriate channels within their respective organizations. Each entity will provide notice to the other entity if it intends to seek a resolution of the issues by a higher authority in the other entity's department or agency. Where issues remain, they shall be referred to the Attorney General for final determination after appropriate consultation with the head of the Agency, and, where appropriate, the Director of Central Intelligence. The decision of the Attorney General may be appealed to the President with prior notice to the Attorney General and the Director of Central Intelligence. While such an appeal is pending, no action will be taken that would render moot the President's decision.

E. When security considerations warrant such action, any matter may be reported directly by the head of the Agency to the Attorney General or the Acting Attorney General, in the manner described in section V above. In considering such reports, the Attorney General or the Acting Attorney General may consult with any person whose advice he considers necessary and who has the required security clearance, provided that the Attorney General or the Acting Attorney General will consult with the head of the reporting agency or the General Counsel thereof concerning dissemination of material designated `Eyes Only.'

F. If requested by the Agency, classified information provided by the Agency to the Department or a federal investigative agency will, to the maximum extent possible and consistent with investigative and prosecutive requirements, be stored by the Agency.

VIII. RELATION TO OTHER PROCEDURES AND AGREEMENTS

A. If the Agency for administrative or security reasons desires to conduct a more extensive investigation into the activities of its employees relating to any matter reported pursuant to these procedures, it will inform the Department or federal investigative agency, as is appropriate. The Agency may take appropriate administrative, disciplinary, or other adverse action at any time against any employee whose activities are reported under these procedures. However, such investigations and disciplinary action will be coordinated with the appropriate investigative or prosecuting officials to avoid prejudice to any criminal investigation or prosecution.

B. Nothing in these procedures shall be construed to restrict the exchange of information among the Agencies in the Intelligence Community or between those Agencies and law enforcement entities other than the Department of Justice.

C. If the subject of a referral is an employee of another agency other than a person subject to the Uniform Code of Military Justice, the Criminal Division may refer the matter to that agency for preliminary investigation and possible administrative action. The employing agency will report the results of any such preliminary investigation under the procedures for reporting possible crimes by agency employees.

D. Notwithstanding the November 23, 1955, Memorandum of Understanding between the Department of Defense and the Department of Justice, notice of crimes which violate both federal criminal statutes and the Uniform Code of Military Justice shall be given to the Department of Justice as provided. Thereafter, the handling of matters relating to individuals subject to the Uniform Code of Military Justice shall be coordinated by the Criminal Division with the appropriate military service in accordance with existing agreements between the Departments of Justice and Defense.

WILLIAM FRENCH SMITH,

Attorney General.

WILLIAM J. CASEY,

Director of Central Intelligence.

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Reporting of Federal Crimes Committed by Officers or Employees of Agencies in the Intelligence Community

Executive Order 12036, 1-706, requires senior officials of the intelligence community to:

Report to the Attorney General evidence of possible violations of federal criminal law by an employee of their department or agency . . .

These procedures govern the reporting of possible federal crimes committed by officers or employees of the intelligence agencies. They are promulgated under the authority of 28 U.S.C. 535 and E.O. 12036, Sec. 1-706, 3-305. Except to the extent indicated in paragraph G, infra, they supersede all previous agreements or guidelines.

A. DEFINITIONS

1. `Officer or employee' shall mean:

a. All persons defined as employees in E.O. 12036, 4-204;

b. former officers or employees when the offense was committed during their employment; and

c. former officers or employees when a basis for referral exists with respect to violation of 18 U.S.C. 207.

3. `Basis for referral' shall mean allegations, complaints, or information tending to show that any officer or employee may have violated a federal criminal statute that the agency cannot establish as unfounded within a reasonable time through a preliminary inquiry.

B. DETERMINING BASIS FOR REFERRAL

1. When an agency has received allegations, complaints, or information tending to show that any officer or employee may have violated a Federal criminal statute, it shall determine whether a basis for referral exists.

2. In determining a basis for referral, an agency will not attempt to establish that all elements of the possible violation have occurred or that a particular employee is responsible before referring the matter to the Department of Justice.

3. When the allegations, complaints, or information received are not sufficient to determine whether a basis for referral exists, an agency shall conduct a preliminary inquiry, limited to the following methods:

a. Interviews with current employees;

b. Examination of the records of the agency;

c. Examination of the records of other agencies;

d. Examination of premises occupied by the agency not constituting a physical search, physical surveillance, or electronic surveillance; or

e. Under procedures approved by the Attorney General and in conformity with other legal requirements, physical search, electronic surveillance, or physical surveillance of officers and employees of the agency on premises occupied by the agency.

A preliminary inquiry shall not include interviews with persons who are not current employees of the agency or examination of premises not occupied by the agency, except that the agency may interview a non-employee for the sole purpose of determining the truth of a report that such non-employee has made an allegation or complaint against an agency employee.

C. REFERRAL TO THE DEPARTMENT OF JUSTICE

Referrals shall be made in the following manner:

1. (a) In cases where no public disclosure of classified information or intelligence source and methods would result from further investigation or prosecution, and the security of ongoing intelligence operations would not be jeopardized thereby, the agency will report the matter to the cognizant office of the Federal Bureau of Investigation, other appropriate United States Attorney or his designee for an investigative or prosecutive determination. Cases involving bribery or conflict of interest will be reported to the Criminal Division.

(b) A record of such referrals and any subsequent agency action to dispose of the matter shall be maintained by the agency, and on a quarterly basis, a summary memorandum indicating the type of crime, place and date of referral and ultimate disposition will be forwarded to the Assistant Attorney General, Criminal Division, or his designee. Referrals made by covert facilities to the United States Attorney, the FBI or other Federal investigative agencies will also be included in the quarterly report with due regard for protection of the security of said installations.

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2. In cases where preliminary investigation has failed to develop an identifiable suspect and the agency believes that investigation or prosecution would result in public disclosure of classified information or intelligence sources or methods or would jeopardize the security of ongoing intelligence operations, the Criminal Division will be so informed in writing, following which a determination will be made as to the proper course of action to be pursued in consultation with the agency and the FBI.

3. (a) In cases where preliminary investigation has determined that there is a basis for referral of a matter involving an identifiable agency officer or employee to the Department of Justice, the future investigation or prosecution of which would result in the public disclosure of classified information or intelligence sources or methods or would jeopardize the security of
ongoing intelligence operations, a letter explaining the facts of the matter in detail will be forwarded to the Criminal Division. The agency will also forward to the Criminal Division a separate classified memorandum explaining the security or operational problems which would arise from a criminal investigation or prosecution, including, but not limited to:

(1) Public disclosure of information needed to prove the offense or to obtain a search warrant or an electronic surveillance order under chapter 119 of Title 18, United States Code;

(2) Disclosure required by a defense request for discovery of information under Rule 16 of the Federal Rules of Criminal Procedure, 18 U.S.C. 3500, or Brady v. Maryland, 373 U.S. 83 (1963); and

(3) Interference with the voluntary provision of cover or other services necessary for intelligence operations by persons other than employees.

(b) In reporting such matter, the agency shall inform the Criminal Division of the steps it has taken to prevent a recurrence of similar offenses, if such action is feasible, as well as those administrative sanctions which may be contemplated with respect to the prospective criminal defendant.

(c) The Criminal Division, after any necessary consultation with the agency and the FBI, will make a prosecutive determination, informing the agency in writing of such determination.

4. Officers or employees who are the subject of such referrals to any component of the Department of Justice may be identified as John Doe XXX in any written document associated with the initial referral. The true identities of such persons will be made available when the Department determines that they are essential to any subsequent investigation or prosecution of the matter referred.

D. FURTHER ACTION BY AGENCIES

If, as a result of the preliminary inquiry, the agency desires to conduct a more extensive investigation for administrative or security reasons, it will inform the Department of Justice component to which the matter is referred. The agency may take appropriate administrative, disciplinary, or other adverse action at any time against any officer or employee whose activities are reported under these procedures. However, internal agency investigations and disciplinary action in referred matters will be coordinated with the appropriate investigative or prosecuting officials to avoid prejudice to any criminal investigation or prosecution.

E. FORMAT OF REFERRALS

All referrals required by these procedures shall be in writing and in such detail as the Department of Justice component receiving the referral shall determine.

F. DIRECT REPORTS TO THE ATTORNEY GENERAL

When the head of an agency within the intelligence community believes that circumstances of security warrant it, he may directly report to the Attorney General in writing any matter required to be referred by these procedures, in lieu of following the reporting procedures of paragraphs C-E, supra.

G. RELATION TO OTHER PROCEDURES AND AGREEMENTS

1. Notwithstanding the November 25, 1955 Memorandum of Understanding between the Department of Defense and the Department of Justice, notice of crimes committed by an officer or employee which violate both federal criminal statutes and the Uniform Code of Military Justice shall be given to the Department of Justice as provided herein. Thereafter, the investigation and prosecution of individuals subject to the Uniform Code of Military Justice shall be conducted as provided by the 1955 Memorandum of Understanding.

2. These procedures do not affect the reporting of possible offenses by regular, permanent FBI employees to the Office of Professional Responsibility, Department of Justice.

3. Nothing in these procedures shall be construed to restrict the exchange of information between agencies in the intelligence community required by other procedures or agreements made under E.O. 12036.

Griffin B. Bell,
Attorney General.

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Procedures for Reporting Federal Crimes by Non-Employees Under E.O. 12036 1-706

Section 1-706 of Executive Order 12036 requires senior officials of the intelligence community to:

Report to the Attorney General evidence of possible violations of federal criminal law by an employee of their department or agency, and report to the Attorney General evidence of possible violations by other persons of those federal criminal laws specified in guidelines adopted by the Attorney General.

These guidelines specify the violations of federal criminal statutes by non-employees which must be reported and provide reporting procedures.

A. DEFINITIONS

1. `Agency' shall mean:

a. The Central Intelligence Agency;

b. the National Security Agency;

c. the Defense Intelligence Agency;

d. offices within DoD for the Collection of specialized national foreign intelligence through reconnaissance programs;

B. POLICY AND INTERPRETATION

1. These procedures govern the reporting of information of which the agency or its employees become aware in the course of performing their lawful functions. They do not authorize an agency to conduct any investigation or to collect any information not otherwise authorized by law.

2. These procedures require an employee of an agency in the intelligence community to report to the general counsel of his department or agency facts or circumstances that appear to the employee to indicate that a criminal offense has been committed. Reports to the Department of Justice will be made by the general counsel of the department or agency or his delegate only as set forth below.

C. REPORTABLE OFFENSES

Information or allegations showing that the following federal offenses may have been committed shall be reported:

1. Crimes involving intentional infliction or threat of death or serious physical harm. Pertinent federal offenses include:

Assault--18 U.S.C. 111-113(a).

Homicide--18 U.S.C. 1111-14, 1116, 2113(e).

Kidnapping--18 U.S.C. 1201.

Congressional assassination, assault or kidnapping--18 U.S.C. 1751.

Threatening the President--18 U.S.C. 871.

2. Crimes that impact on the national security, defense or foreign relations of the United States. Pertinent federal offenses include:

Communicating classified information--50 U.S.C. 783(b).

Espionage--18 U.S.C. 793-9.

Sabotage--18 U.S.C. 2151-57.

Arms Export Control Act--22 U.S.C. 1778.

Export Control Act--50 U.S.C. 2405.

Neutrality offenses--18 U.S.C. 956-60.

Trading with the Enemy Act--50 App. U.S.C. 5(b), 16.

Acting as an unregistered foreign agent--18 U.S.C. 951.

Communicating classified information--50 U.S.C. 783(b).

Government employee acting for a foreign principal--18 U.S.C. 219.

Communicating restricted data--42 U.S.C. 2274-77.

Espionage--18 U.S.C. 793-98.

Failure to register as foreign espionage trainee--50 U.S.C. 851-55.

Foreign Agents Registration Act--22 U.S.C. 618(a).

Sabotage--18 U.S.C. 2151-57.

Unlawful entering the United States--8 U.S.C. 1325.

The general counsel of the agency, by agreement with the Criminal Division, may develop categories of specific crimes which need not be reported because that Particular category could have no significant impact on national security, defense or foreign relations.

3. Any crime meeting any of the following criteria:

a. The crime is committed in circumstances likely to have a substantial impact on the national obstruction of justice--18 U.S.C. 1503-06, 1508-10.

Perjury--18 U.S.C. 1621-23.

4. The general counsel may report any other possible offense when he believes it should be reported to the Attorney General.

5. Any conspiracy to commit a reportable offense shall be reported.

6. The general counsel shall keep records of any matters referred to him which contain information or allegations of a felony in violation of federal law which the general counsel determines is not reportable under these provisions.

D. REPORTING PROCEDURES

When information or allegations are received by an agency that a subject has committed or is committing a reportable offense, the agency shall transmit the information or allegations to the Department of Justice in the following manner:

[Page: H2975]

1. In a case where no public disclosure of classified information or intelligence sources and methods would result from further investigation or prosecution, and the security of ongoing intelligence investigations would not be jeopardized thereby, the agency will report the matter to the cognizant office of the Federal Bureau of Investigation, other appropriate Federal investigative agency, or to the appropriate United States Attorney or his designee for an investigative or prosecutive determination.

2. In a case where further investigation or prosecution would result in the public disclosure of classified information or intelligence sources and methods or would jeopardize the conduct of ongoing intelligence operations, a letter explaining the facts of the matter in detail will be forwarded to the Criminal Division. The agency will also forward to the Criminal Division a separate classified memorandum explaining the security or operational problems which would arise from a criminal investigation or prosecution, including, but not limited to:

a. Public disclosure of information needed to prove the offense or to obtain a search warrant or an electronic surveillance order under chapter 119 of Title 18, United States Code;

b. disclosure required by a defense request for discovery of information under Rule 16 of the Federal Rules of Criminal Procedure, 18 U.S.C. 3500, or Brady v. Maryland, 373 U.S. 83 (1963); and

c. interference with the voluntary provision by the subject or persons associated with the subject of cover or other services necessary for intelligence operations.

The Criminal Division, after necessary consultation with the agency, will determine whether to further investigate or prosecute. The agency will be informed of such determination in writing.

E. If the subject of a referral is an employee of another agency other than a person subject to the Uniform Code of Military Justice, the Criminal Division may refer the matter to that agency for preliminary investigation and possible administrative action. The employing agency will report the results of any such preliminary investigation under the procedures for reporting possible crimes by agency employees.

F. If the subject of the referral is a person subject to the Uniform Code of Military Justice, the Criminal Division will coordinate the handling of the matter with the appropriate military service in accordance with existing agreements between the Departments of Justice and Defense.

G. All referrals required by these proceedings shall be in writing and in such detail as the Department of Justice component receiving the referral shall determine.

H. When the head of an agency believes that circumstances of security warrant it, he may directly report to the Attorney General in writing any matter required to be reported by these procedures in lieu of following the procedures of paragraphs D-G.

I. Nothing in these procedures shall be construed to restrict the exchange of information among agencies in the intelligence community required by other procedures or agreements made under E.O. 12036.

Griffin B. Bell,
Attorney General.

--

--

Memorandum of Understanding: Reporting of Information Concerning Federal Crimes

I. INTRODUCTION

Section 1.7(a) of Executive Order (E.O.) 12333 requires senior officials of the Intelligence Community to--

Report to the Attorney General possible violations of federal criminal laws by employees and of specified federal criminal laws by any other person as provided in procedures agreed upon by the Attorney General and the head of the department or agency concerned, in a manner consistent with the protection of intelligence sources and methods, as specified in those procedures.

Title 28, United States Code, Section 535(b) requires that--

[a]ny information, allegation, or complaint received in a department or agency of the executive branch of the Government relating to violations of title 18 involving Government officers and employees shall be expeditiously reported to the Attorney General by the head of the department or agency, unless--

(1) the responsibility to perform an investigation with respect thereto is specifically assigned otherwise by another provision of law; or

(2) as to any department or agency of the Government, the Attorney General directs otherwise with respect to a specified class of information, allegation, or complaint.

This Memorandum of Understanding (MOU) sets forth the procedures by which each agency and organization within the Intelligence Community shall report to the Attorney General and to federal investigative agencies information concerning possible federal crimes by employees of an intelligence agency or organization, or violations of specified federal criminal laws by any other person, which information was collected by it during the performance of its designated intelligence activities, as those activities are defined in E.O. 12333, 1.8-1.13.

II. DEFINITIONS.

A. `Agency,' as that term is used herein, refers to those agencies and organizations within the Intelligence Community as defined in E.O. 12333, 3.4(f), but excluding the intelligence elements of the Federal Bureau of Investigation and the Department of the Treasury.

B. `Employee,' as that term is used herein, means:

1. a staff employee, contract employee, asset, or other person or entity providing service to or acting on behalf of any agency within the intelligence community;

2. a former officer or employee of any agency within the intelligence community for purposes of an offense committed during such person's employment, and for purposes of an offense involving a violation of 18 U.S.C. 207 (Conflict of interest); and

3. any other Government employee on detail to the Agency.

C. `General Counsel' means the general counsel of the Agency or of the Department of which it is a component or an oversight person designated by such person to act on his/her behalf, and for purposes of these procedures may include an Inspector General or equivalent official if agency or departmental procedures so require or if designated by the agency or department head.

D. `Inspector General' or `IG' means the inspector general of the Agency or of the department of which the Agency is a component.

E. `Reasonable basis' exists when there are facts and circumstances, either personally known or of which knowledge is acquired from a source believed to be reasonably trustworthy, that would cause a person of reasonable caution to believe that a crime has been, is being, or will be committed. The question of which federal law enforcement or judicial entity has jurisdiction over the alleged criminal acts shall have no bearing upon the issue of whether a reasonable basis exists.

III. SCOPE

A. This MOU shall not be construed to authorize or require the Agency, or any person or entity acting on behalf of the Agency, to conduct any intelligence not otherwise authorized by law, or to collect any information in a manner not authorized by law.

B. This MOU ordinarily does not require an intelligence agency or organization to report crimes information that was collected and disseminated to it by another department, agency, or organization. Where, however, the receiving agency is the primary or sole recipient of that information, of if analysis by the receiving agency reveals additional crimes information, the receiving agency shall be responsible for reporting all such crimes information in accordance with the provisions of this MOU.

C. This MOU does not in any way alter or supersede the obligation of an employee of an intelligence agency to report potential criminal behavior by other employees of that agency to an IG, as required either by statute or by agency regulations, nor affect any protections afforded any persons reporting such behavior to an IG. Nor does this MOU affect any crimes reporting procedures between the IG Offices and the Department of Justice.

D. This MOU does not in any way alter or supersede any obligation of a department or agency to report to the Attorney General criminal behavior by Government employees not employed by the intelligence community, as required by 28 USC 535.

E. This MOU does not affect the obligation to report to the Federal Bureau of Investigation alleged or suspected espionage activities as required under Section 811(c) of the Intelligence Authorization Act of 1995.

F. The following crimes information is exempted from the application of this memorandum if the specified conditions are met:

1. Crimes information that has been reported to an IG; 1

*Footnotes appear at end of Memorandum of Understanding.

2. Crimes information received by a Department of Defense intelligence component concerning a Defense intelligence component employee who either is subject to the Uniform Code of Military Justice or is a civilian and has been accused of criminal behavior related to his/her assigned duties or position, if (a) the information is submitted to and investigated by the appropriate Defense Criminal Investigative Organization, and (b) in cases involving crimes committed during the performance of intelligence activities, the General Counsel provides to the Department of Justice a report reflecting the nature of the charges and the disposition thereof;

3. Information regarding non-employee crimes listed in Section VII that is collected by the intelligence component of a Department also having within it a law enforcement organization where (a) the crime is of the type that the Department's law enforcement organization has jurisdiction to investigate; and (b) the Department's intelligence organization submits that crimes information to the Department's law enforcement organization for investigation and further handling in accordance with Department policies and procedures; 2

4. Crimes information regarding persons who are not employees of the Agency, as those terms are defined in Section II, that involve crimes against property in an amount of $1,000 or less, an amount of $500 or less. As to other relatively minor offenses to which this MOU would ordinarily apply, but which, in the General Counsel's opinion, do not warrant reporting pursuant to this MOU, the General Counsel may orally contact the Assistant Attorney General, Criminal Division, or his/her designee. If the Department of Justice concurs with that opinion, no further reporting under these procedures is required. The General Counsel shall maintain an appropriate record of such contacts with the Department. If deemed appropriate by the General Counsel, he/she may take necessary steps to pass such information to the appropriate law enforcement authorities; or

[Page: H2976]

5. Information, other than that relating to homicide or espionage, regarding crimes that were completed more than ten years prior to the date such allegations became known to the Agency. If, however, the Agency has a reasonable basis to believe that the alleged criminal activities occurring ten or more years previously relate to, or are a part of, a pattern of criminal activities that continued within that ten year interval, the reporting procedures herein will apply to those activities.

F. The procedures set forth herein are not intended to affect whether an intelligence agency reports to state or local authorities activity that appears to constitute a crime under state law. In the event that an intelligence agency considers it appropriate to report to state or local authorities possible criminal activity that may implicate classified information or intelligence sources or methods, it should inform the AAG, or the designated Deputy AAG, Criminal Division, in accordance with paragraph VIII.C, below; the Criminal Division will consult with the intelligence agency regarding appropriate methods for conveying the information to state or local authorities. In the event that an intelligence agency considers it appropriate to report to state or local authorities possible criminal activity that is not expected to implicate classified information or intelligence sources or methods, it should nevertheless provide a copy of such report to the AAG, or to the designated Deputy AAG, Criminal Division.

IV. GENERAL CONSIDERATIONS: ALLEGATIONS OF CRIMINAL ACTS COMMITTED BY AGENCY EMPLOYEES

A. This Agreement requires each employee of the Agency to report to the General Counsel or IG facts or circumstances that reasonably indicate to the employee that an employee of an intelligence agency has committed, is committing, or will commit a violation of federal criminal law. 3

B. Except as exempted in Section III, when the General Counsel has received allegations, complaints or information (hereinafter allegations) that an employee of the Agency may have violated, may be violating, or may violate a federal criminal statute, that General Counsel should within a reasonable period of time determine whether there is a reasonable basis to believe that a federal crime has been, is being, or will be committed and that it is a crime which, under this memorandum, must be reported. The General Counsel may, as set forth in Section V, below, conduct a preliminary inquiry for this purpose. If a preliminary inquiry reveals that there is a reasonable basis for the allegations, the General Counsel will follow the reporting procedures set forth in Section VIII, below. If a preliminary inquiry reveals that the allegations are without a reasonable basis, the General Counsel will make a record, as appropriate, of that finding and no reporting under these procedures is required.

V. PRELIMINARY INQUIRY INTO ALLEGATIONS AGAINST AN AGENCY EMPLOYEE

A. The General Counsel's preliminary inquiry regarding allegations against an Agency employee will ordinarily be limited to the following:

1. Review of materials submitted in support of the allegations;

2. review of Agency indices, records, documents, and files;

3. examination of premises occupied by the Agency;

4. examination of publicly available federal, state, and local government records and other publicly available records and information;

5. interview of the complainant; and

6. interview of any Agency employee, other than the accused, who, in the opinion of the General Counsel, may be able to corroborate or refute the allegations.

B. Where criminal allegations against an Agency employee are subject to this MOU, an interview of that employee may only be undertaken in compliance with the following conditions:

1. Where the crime alleged against an Agency employee does not pertain to a serious felony offense, 4 a responsible Agency official may interview the accused employee; however, such interview shall only be conducted with the approval of the General Counsel, the IG, or, as to Defense and military employees, the responsible military Judge Advocate General or the responsible Defense Criminal Investigative Organization.

2. Where the crime alleged against an Agency employee is a serious felony offense, the Agency shall ordinarily not interview the accused employee, except where, in the opinion of the General Counsel, there are exigent circumstances 5 which require that the employee be interviewed. If such exigent circumstances exist, the General Counsel or other attorney in the General Counsel's office may interview the accused employee to the extent reasonably necessary to eliminate or substantially reduce the exigency.

3. In all other cases of alleged serious felonies, the General Counsel, or the General Counsel's designee, may interview the accused employee only after consultation with the Agency's IG, a Defense Criminal Investigative Organization (for Defense and military employees), or with the Department of Justice regarding the procedures to be used during an interview with the accused employee.

Any interview of an accused employee that is undertaken shall be conducted in a manner that does not cause the loss, concealment, destruction, damage or alteration of evidence of the alleged crime, nor result in the immunization of any statements made by the accused employee during that interview. The Agency shall not otherwise be limited by this MOU either as to the techniques it is otherwise authorized to use, or as to its responsibility to provide for its security functions pursuant to E.O. 12333.

VI. GENERAL CONSIDERATIONS: ALLEGATIONS OF CRIMINAL ACTS COMMITTED BY NON-EMPLOYEES

A. This MOU requires each employee of the Agency to report, to the General Counsel or as otherwise directed by the Department or Agency head, facts or circumstances that reasonably indicate to the employee that a non-employee has committed, is committing, or will commit one or more of the specified crimes in Section VII, below.

B. When an Agency has received information concerning alleged violations of federal law by a person other than an employee of an intelligence agency, and has determined that the reported information provides a reasonable basis to conclude that a violation of one of the specified crimes in Section VII has occurred, is
occurring, or may occur, the Agency shall report that information to the Department of Justice in accordance with Sections VIII or IX, below.

VII. REPORTABLE OFFENSES BY NON-EMPLOYEES

A. Unless exempted under Section III, above, allegations concerning criminal activities by non-employees are reportable if they pertain to one or more of the following specified violations of federal criminal law:

1. Crimes involving intentional infliction or threat of death or serious physical harm. These include but are not limited to homicide, kidnapping, hostage taking, assault (including sexual assault), or threats or attempts to commit such offenses, against any person in the United States or a U.S. national or internationally protected person (as defined in 18 U.S.C. 1116 (b)(4)), whether in the United States or abroad.

2. Crimes, including acts of terrorism, that are likely to affect the national security, defense or foreign relations of the United States. These may include but are not limited to:

a. Espionage; sabotage; unauthorized disclosure of classified information; seditious conspiracies to overthrow the government of the United States; fund transfers violating the International Emergency Economic Powers Act; providing material or financial support to terrorists; unauthorized traffic in controlled munitions or technology; or unauthorized traffic in, use of, or contamination by nuclear materials, chemical or biological weapons, or chemical or biological agents; whether in the United States or abroad;

b. Fraudulent entry of persons into the United States, the violation of immigration restrictions or the failure to register as a foreign agent or an intelligence trained agent;

c. Offenses involving interference with foreign governments or interference with the foreign policy of the United States whether occurring in the United States or abroad;

d. Acts of terrorism anywhere in the world which target the U.S. government or its property, U.S. persons, or any property in the United States, or in which the perpetrator is a U.S. person; aircraft hijacking; attacks on aircraft or international aviation facilities; or maritime piracy;

e. The unauthorized transportation or use of firearms or explosives in interstate or foreign commerce.

3. Crimes involving foreign interference with the integrity of U.S. governmental institutions or processes. Such crimes may include:

a. Activities to defraud the U.S. government or any federally protected financial institution, whether occurring in the United States or abroad;

b. Obstruction of justice or bribery of U.S. officials or witnesses in U.S. proceedings, whether occurring in the United States or abroad;

c. Interference with U.S. election proceedings or illegal contributions by foreign persons to U.S. candidates or election committees;

d. Perjury in connection with U.S. proceedings, or false statements made in connection with formal reports or applications to the U.S. government, or in connection with a formal criminal or administrative investigation, whether committed in the United States or abroad;

e. Counterfeiting U.S. obligations or any other governmental currency, security or identification documents used in the United States, whether committed in the United States or abroad; transactions involving stolen governmental securities or identification documents or stolen or counterfeit non-governmental securities.

4. Crimes related to unauthorized electronic surveillance in the United States or to tampering with, or unauthorized access to, computer systems.

5. Violations of U.S. drug laws including: the cultivation, production, transportation, importation, sale, or possession (other than possession of user quantities) of controlled substances; the production, transportation, importation, and sale of precursor or essential chemicals.

[Page: H2977]

6. The transmittal, investment and/or laundering of the proceeds of any of the unlawful activities listed in this Section, whether committed in the United States or abroad.

B. Any conspiracy or attempt to commit a crime reportable under this section shall be reported if the conspiracy or attempt itself meets the applicable reporting criteria.

C. The Attorney General also encourages the Agency to notify the Department of Justice when the Agency's other routine collection of intelligence in accordance with its authorities results in its acquisition of information about the commission of other serious felony offenses by non-employees, e.g., violations of U.S. environmental laws relating to ocean and inland water discharging or dumping, drinking water contamination, or hazardous waste disposal, and crimes involving interference with the integrity of U.S. governmental institutions or processes that would not otherwise be reportable under Section VII.A.3.

VIII. PROCEDURES FOR SUBMITTING SPECIAL CRIMES REPORTS

A. Where the Agency determines that a matter must be the subject of a special report to the Department of Justice, it may, consistent with paragraphs VIII.B and VIII.C, below, make such a report (1) by letter or other, similar communication from the General Counsel, or (2) by electronic or courier dissemination of information from operational or analytic units, provided that in all cases, the subject line and the text of such communication or dissemination clearly reflects that it is a report of possible criminal activity. The Department of Justice shall maintain a record of all special crimes reports received from the Agency.

B. Where the Agency determines that a matter must be the subject of a special report to the Department of Justice; and where the Agency further determines that no public disclosure of classified information or intelligence sources and methods would result from further investigation or prosecution, and the security of ongoing intelligence operations would not be jeopardized thereby, the Agency will report the matter to the federal investigative agency having jurisdiction over the criminal matter. A copy of that report must also be provided to the AAG, or designated Deputy AAG, Criminal Division.

C. Where the Agency determines that further investigation or prosecution of a matter that must be specially reported may result in a public disclosure of classified information or intelligence sources or methods or would jeopardize the security of ongoing intelligence operations, the Agency shall report the matter to the AAG or designated Deputy AAG, Criminal Division. A copy of that report must also be provided to the Assistant Director, Criminal Investigations or National Security Divisions, Federal Bureau of Investigation, or in the event that the principal investigative responsibility resides with a different federal investigative agency, to an appropriately cleared person of equivalent position in such agency. The Agency's report should explain the security or operational problems that would or might arise from a criminal investigation or prosecution.

D. Written documents associated with the reports submitted pursuant to this section may refer to persons who are the subjects of the reports by non-identifying terms (such as `John Doe XXX'). The Agency shall advise the Department of Justice or relevant federal investigative agency of the true identities of such persons if so requested.

E. It is agreed that, in acting upon information reported in accordance with these procedures, the Agency, the Department of Justice and the relevant federal investigative agencies will deal with classified information, including sources and methods, in a manner consistent with the provisions of relevant statutes and Executive Orders, including the Classified Information Procedures Act.

IX. WHEN ROUTINE DISSEMINATION MAY BE USED IN LIEU OF A SPECIAL CRIMES REPORT

A. Except as set forth in IX.B, below, the Agency may report crimes information regarding non-employees to the Department of Justice by routine dissemination, provided that:

1. the crimes information is of the type that is routinely disseminated by the Agency to headquarters elements of cognizant federal investigative agencies;

2. the criminal activity is of a kind that is normally collected and disseminated to law enforcement by the Agency (e.g., drug trafficking, money laundering, terrorism, or sanctions violations); and

3. the persons or entities involved are members of a class that are routinely the targets or objects of such collection and dissemination.

If all three of these conditions are met, the Agency may satisfy its crimes reporting obligation through routine dissemination to the Department of Justice, Criminal Division, and to all cognizant federal law enforcement agencies, which shall retain primary responsibility for review of disseminated information for evidence of criminal activity. In all other cases, the special reporting procedures in Section VIII shall apply. As requested by the Department of Justice, the Agency will coordinate with the Department to facilitate the Department's analytical capabilities as to the Agency's routine dissemination of crimes information in compliance with this MOU.

B. Routine dissemination, as discussed in IX.A, above, may not be used in lieu of the special reporting requirements set forth herein as to the following categories of criminal activities:

1. Certain crimes involving the intentional infliction or threat of death or serious physical harm (VII.A.1, above);

2. Espionage; sabotage; unauthorized disclosure of classified information; and seditious conspiracies to overthrow the government of the United States (VII.A.2.a, above); and

3. Certain crimes involving foreign interference with the integrity of U.S. governmental institutions or processes (VII.A.3.b and c, above).

X. OTHER AGENCY RESPONSIBILITIES

A. The Agency shall develop internal procedures in accordance with the provisions of Sections VIII and IX for the reporting of criminal information by its employees as required under Sections IV.A and VI.A.

B. The Agency shall also establish initial and continuing training to
ensure that its employees engaged in the review and analysis of collected intelligence are knowledgeable of and in compliance with the provisions of this MOU.

XI. RELATION TO OTHER PROCEDURES AND AGREEMENTS

A. If the Agency desires, for administrative or security reasons, to conduct a more extensive investigation into the activities of an employee relating to any matter reported pursuant to this MOU, it will inform the Department of Justice and the federal investigative agency to which the matter was reported. The Agency may also take appropriate administrative, disciplinary, or other adverse action at any time against any employee whose activities are reported under these procedures. However, such investigations or adverse actions shall be coordinated with the proper investigative or prosecuting officials to avoid prejudice to any criminal investigation or prosecution.

B. Nothing in these procedures shall be construed to restrict the exchange of information among the Agencies in the Intelligence Community or between those Agencies and law enforcement entities other than the Department of Justice.

C. This MOU supersedes all prior crimes reporting memoranda of understanding executed pursuant to the requirements of E.O. 12333. To the extent that there exist any conflicts between other Agency policies or directives and the provisions herein, such conflicts shall be resolved in accordance with the provisions of this MOU. However, this MOU shall not be construed to modify in any way the August 1984 Memorandum of Understanding between the Department of Defense and the Department of Justice relating to the investigation and prosecution of certain crimes.

D. The parties understand and agree that nothing herein shall be construed to alter in any way the current routine dissemination by the Agency of intelligence information, including information regarding alleged criminal activities by any person, to the Department of Justice or to federal law enforcement agencies.

XII. MISCELLANEOUS

A. This MOU shall become effective as to each agency below as of the date signed by the listed representative of that agency.

B. The Intelligence-Law Enforcement Policy Board, within one year of the date of the effective date hereof, and as it deems appropriate thereafter, will appoint a working group consisting of an equal number of representatives from the intelligence and law enforcement communities, including the Criminal Division. That working group shall do the following:

1. review the Agency's implementation of Sections III.F and IV.B, hereof;

2. consider whether the crimes reporting requirements of E.O. 12333 and other authorities are being met through the operation of this MOU;

3. review each of the provisions of this MOU and determine what, if any, modifications thereof should be recommended to the Policy Board, or its successor; and

4. issue a report to the Policy Board of its findings and recommendations in each of the foregoing categories.

C. The Policy Board in turn shall make recommendations to the Attorney General, the Director of Central Intelligence, and the heads of the affected agencies concerning any modifications to the MOU that it considers necessary.

JANET RENO,
Attorney General.

JOHN DEUTSCH,
Director of Central Intelligence.

MICHAEL F. MUNSON,

(For Director, Defense Intelligence Agency).

KENNETH E. BAKER,

Director, Office of Non-Proliferation and National Security, Department of Energy.

WILLIAM J. PERRY,
Secretary of Defense.

J.M. MCCONNELL,
Director, National Security Agency.

TOBY T. GATI,

Assistant Secretary of State, Intelligence and Research.

[Page: H2978]

FOOTNOTES

1 If, however, the IG determines that the reported information is not properly subject to that office's jurisdiction, but that such information may be reportable pursuant to this MOU, the IG may forward the information to the DOJ in compliance with these procedures. Alternatively, the IG may transmit the information to the Agency's General Counsel for a determination of what response, if any, is required by this MOU.

2 This MOU does not affect the crimes reporting obligations of any law enforcement and other non-intelligence components of a department, agency, or organization.

3 When a General Counsel or IG has received information concerning alleged violations of federal law by an employee of another intelligence community agency, and those violations are not exempted under section III.E.4, hereof, the General Counsel shall notify in writing the General Counsel of the accused employee's agency. The latter General Counsel must then determine whether this MOU requires the allegations to be reported to the Department of Justice.

4 A `serious felony offense' includes any offense listed in Section VII, hereof, violent crimes, and other offenses which, if committed in the presence of a reasonably prudent and law-abiding person, would cause that person immediately to report that conduct directly to the police. For purposes of this MOU, crimes against government property that do not exceed $5,000 and are not part of a pattern of continuing behavior or of a criminal conspiracy shall not be considered serious felony offenses.

5 `Exigent circumstances' are circumstances requiring prompt action by the Agency in order to protect life or substantial property interests; to apprehend or identify a fleeing offender; or to prevent the compromise, loss, concealment, destruction, or alteration of evidence of a crime.

[TIME: 1530]

The CHAIRMAN. The time of the gentlewoman from California (Ms. Waters) has expired.

(On request of Mr. Dicks, and by unanimous consent, Ms. Waters was allowed to proceed for 2 additional minutes.)

Mr. DICKS. Mr. Chairman, if the gentlewoman would yield to me, I appreciate very much the hard work that the gentlewoman from California has put into this, an enormous effort on her part.

I regret that, because of a technicality, the amendment will not be accepted. I guarantee the gentlewoman we will work with her to make certain that we do everything we can to come up with a strategy to be certain that the understanding that is now in place with the Attorney General is strengthened, so that, in cases where there has been illegal activity or problems, that they must be reported to the Attorney General.

I know that is the thrust of your amendment. As you know, our committee is still involved in our investigation. It may well be one of the conclusions of our investigation that we need to strengthen this area.

I pledge to the gentlewoman from California that I will work with her to get a satisfactory solution. Again, I appreciate the gentlewoman's endeavors and hard work here.

Ms. WATERS. Mr. Chairman, I would like to thank the gentleman from Washington (Mr. Dicks).

Mr. GOSS. Mr. Chairman, will the gentlewoman from California yield?

Ms. WATERS. Yes, I yield to the gentleman from Florida.

Mr. GOSS. Mr. Chairman, I echo what the ranking member has said. I think the gentlewoman from California is right on in an area of critical importance; there is no doubt about that.

We are in the middle of the investigation, as the gentlewoman knows. We are going to have recommendations. Certainly this is an area of concern. I do not know what those recommendations will be, but I assure the gentlewoman that her thoughts and her input on this are being accepted, listened to, and we will be considering them as we go forward with the other information we get in our investigation.

Ms. WATERS. Mr. Chairman, I would like to thank the chairman and our ranking member and say to our ranking member that I really appreciate the fact that he has at least been able to listen to some of the ideas that I have brought to that committee.

I know that the gentleman is, by far, one of the most knowledgeable in this area and that some of the things that I am raising are things that challenge conventional wisdom. But the gentleman has been very cooperative, and I appreciate it.

Mr. DICKS. Mr. Chairman, I appreciate the gentlewoman's kind remarks.

Ms. WATERS. Mr. Chairman, I ask unanimous consent to withdraw the amendment.

The CHAIRMAN. Is there objection to the request of the gentlewoman from California?

There was no objection.

The CHAIRMAN. The amendment is withdrawn.

Are there further amendments to title IV?

The Clerk will designate title V.

The text of title V is as follows:

TITLE V--DEPARTMENT OF DEFENSE INTELLIGENCE ACTIVITIES

SEC. 501. EXTENSION OF AUTHORITY TO ENGAGE IN COMMERCIAL ACTIVITIES AS SECURITY FOR INTELLIGENCE COLLECTION ACTIVITIES.
Section 431(a) of title 10, United States Code, is amended by striking out `December 31, 1998' and inserting in lieu thereof `December 31, 2001'.

The CHAIRMAN. Are there amendments to title V?

Are there further amendments to the bill?

If not, the question is on the committee amendment in the nature of a substitute, as modified, as amended.

The committee amendment in the nature of a substitute, as modified, as amended, was agreed to.

The CHAIRMAN. Under the rule, the Committee rises.

Accordingly, the Committee rose; and the Speaker pro tempore (Mr. Ney) having assumed the chair, Mr. Thornberry, Chairman of the Committee of the Whole House on the State of the Union, reported that that Committee, having had under consideration the bill (H.R. 3694) to authorize appropriations for fiscal year 1999 for intelligence and intelligence-related activities of the United States Government, the Community Management Account, and the Central Intelligence Agency Retirement and Disability System, and for other purposes, pursuant to House Resolution 420, he reported the bill back to the House with an amendment adopted by the Committee of the Whole.

The SPEAKER pro tempore. Under the rule, the previous question is ordered.

Is a separate vote demanded on the amendment to the committee amendment in the nature of a substitute adopted by the Committee of the Whole? If not, the question is on the committee amendment in the nature of a substitute.

The committee amendment in the nature of a substitute was agreed to.

The bill was ordered to be engrossed and read a third time, was read the third time, and passed, and a motion to reconsider was laid on the table.

END


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