Findings: The Contra Story — Central Intelligence Agency

• Background. For over 20 years, CIA had broad discretion to report or not report information that came to its attention regarding potential violations of federal law by its employees, assets and other persons. According to a 1954 memorandum from CIA General Counsel Lawrence Houston to the DCI, Houston discussed the issue of reporting Federal criminal violations to the Department of Justice (DoJ) with Deputy Attorney General William P. Rogers on February 18, 1954. According to that memorandum, Rogers and Houston agreed that CIA would be responsible for determining whether a potential violation of criminal law by persons associated with CIA would be referred to DoJ for prosecution. This arrangement was based on the belief that CIA was in the best position to determine whether classified information might be revealed in the course of such a prosecution. The memorandum also stated that CIA would be obligated to refer to DoJ potential criminal matters that could be prosecuted without revealing classified information, and that any doubts would be resolved in favor of referring the matter to DoJ. Finally, Rogers and Houston agreed, according to the memorandum, that it was not necessary at that time to enter a formal agreement of any kind that would embody these understandings.
• In the mid-1970s, this arrangement became more widely known and was subject to criticism by the Congress⁽⁶⁾ and others. Then-Assistant Attorney General for DoJ's Criminal Division Richard Thornburgh wrote CIA General Counsel John Warner on July 24, 1975 to remind CIA of its duty to comply with 28 U.S.C. 535, a provision of law that imposes a duty on every department and agency in the Executive Branch to report promptly to the Attorney General any information, allegations, or complaints relating to possible violations of Title 18 of the United States Code by officers and employees of the U.S. Government. Warner responded on July 29 and acknowledged that "any other informal referral agreement that may have been in effect in the past was abrogated." At the same time, however, Warner noted that the DCI was charged under the National Security Act of 1947 with "protecting intelligence sources and methods from unauthorized disclosure" and that CIA would be seeking DoJ's advice as to fulfilling this responsibility in regard to "cases that will be reported."
• CIA Regulation Regarding Crimes Reporting. As of November 28, 1975, CIA's policy for reporting information regarding potential violations of federal criminal law by employees and others was set forth in Headquarters Regulation (HR) 7-1 a(7). That regulation provided:

Information, allegations, or complaints of violations of the criminal provisions of the United States Code by CIA officers and employees, or relating to CIA affairs, shall be reported immediately by an employee to the Inspector General, who shall inform the General Counsel. Information, allegations, or complaints of violations of Title 18 of the United States Code involving Government officers and employees shall be expeditiously reported to the Attorney General by the General Counsel in compliance with 28 U.S.C. 535. Such report to the Attorney General shall include an evaluation of the impact, if any, of a prosecution on the national security or foreign relations of the United States, including intelligence operations which may be jeopardized or intelligence sources and methods which may be compromised thereby. CIA will not exercise a prosecutorial function.

1. E.O. 11905. A presidential directive that CIA report information to DoJ concerning potential violations of certain federal criminal laws by employees and non-employees was first established by President Gerald Ford in Executive Order (E.O.) 11905, dated February 18, 1976. The pertinent part of E.O. 11905--Section 4(a)--stated: 
   
   In carrying out their duties and responsibilities, senior officials [including those at CIA] . . . shall:  . . . .
   
   (5) Report to the Attorney General that information which relates to detection or prevention of possible violations of law by any person, including an employee of the senior official's department or agency:
   . . . .
   (Emphasis added.)
   
   The preamble to Section 4 stated that:
   
   Unless otherwise specified within this section, its provisions apply to activities both inside and outside the United States, and all references to law are to applicable laws of the United States.
   
   The reporting obligations imposed upon CIA and other U.S. intelligence agencies by this provision exceeded those required of other federal agencies. Whereas the responsibilities of other agencies in this regard are limited by 28 U.S.C. 535 to potential violations of Title 18 by U.S. Government employees, E.O. 11905 required CIA and other intelligence agencies to report all possible violations of any law by any person.

1. A May 7, 1976 opinion by DoJ's Office of Legal Counsel confirmed the breadth of Section 4(a)(5) of E.O. 11905 by concluding that it required reports of possible violations of any law, civil or criminal, with respect to which DoJ had either investigative or prosecutorial jurisdiction. This opinion also noted, however, that the agencies were required to report such information to the Attorney General only when such information was acquired by them in the exercise of their functions under the E.O.
2. E.O. 12036. On January 26, 1978, President Jimmy Carter signed E.O. 12036, "United States Intelligence Activities," which superseded E.O. 11905. Section 1-7 of E.O. 12036 contained the following language regarding the obligation to report federal crimes: 

   The senior officials of each of the agencies within the Intelligence Community shall:

   . . . .
   (1-706) 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 any other person of those federal criminal laws specified in guidelines adopted by the Attorney General. . . . .

   (Emphasis added.)

   Section 4-204 of the E.O. defined "employee" as:

   Employee means a person employed by, assigned to, or acting for an agency within the Intelligence Community.

3. E.O. 12036 thus narrowed the CIA's responsibilities with respect to reporting employee violations because it expressly limited the requirement to federal criminal violations. On the other hand, E.O. 12036 continued to require that intelligence agencies report any federal criminal violation by their employees, not just Title 18 violations. For example, most narcotics violations fall under Title 21 and would not be reportable by other U.S. Government agencies under a literal reading of 28 U.S.C. 535. Moreover, E.O. 12036 did not alter the fact that only the Intelligence Community agencies were required to report federal crimes by non-employees, although it did recognize that the scope of this portion of the reporting requirement could be narrowed by Attorney General guidelines.
4. On September 15, 1978, CIA amended HR 7-1 to incorporate the changes required by E.O. 12036. With respect to the obligation for reporting potential crimes, the revision read: 

   . . . .
   Information, allegations, and complaints of possible violations of Federal criminal law by CIA employees or any other person shall be reported immediately by any employee to the Inspector General who shall inform the General Counsel. The Inspector General shall provide to the General Counsel an evaluation of the impact, if any, of a prosecution of such a violation on the national security or foreign relations of the United States, including intelligence operations which may be jeopardized or intelligence sources and methods which may be compromised. Pursuant to 28 U.S.C. 535 and Section 1-706 of Executive order 12036, evidence of possible violations of Federal criminal law shall be reported expeditiously to the Attorney General by the General Counsel in accordance with procedures and guidelines adopted by the Attorney General.
   . . . .

5. Attorney General Procedures for Crimes Reporting. On August 15, 1979, pursuant to section 1-706 of E.O. 12036, Attorney General Griffin Bell promulgated two sets of guidelines. One guideline pertained to the reporting of federal crimes committed by employees of agencies in the intelligence community. The other related to the reporting of federal crimes committed by non-employees.
6. The August 1979 Attorney General employee crimes reporting guidelines defined "employees" to include not only persons covered by the definition of that term in Section 4-204 of E.O. 12036 (i.e., those who were employed by, assigned to, or acting for an intelligence agency), but also any former employees when the offense was committed during their employment or related to potential violations of statutory restrictions on the post-employment activities of former employees. With respect to employees of intelligence agencies, the guidelines required the General Counsel to refer to DoJ any "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."
7. The August 1979 Attorney General guidelines for reporting crimes committed by non-employees set forth several categories of federal crimes as to which reporting would be required: 
   • Crimes involving intentional infliction or threat of death or serious physical harm (e.g., homicide, kidnapping);
   • Crimes impacting on the national security, defense, or foreign relations of the United States (e.g., espionage, sabotage, violations of the Trading with the Enemy Act, neutrality offenses); and
   • Crimes involving foreign interference with the integrity of United States Government institutions or crimes committed on behalf of a foreign power or in connection with international terrorist activity (e.g., bribery, election contributions, aircraft piracy, transportation of explosives).

   Potential violations of federal criminal provisions relating to narcotics trafficking were not included among the categories of reportable crimes by non-employees. The guidelines did, however, include language also authorizing the General Counsel to report information concerning any offense that the General Counsel believed should be reported to the Attorney General.

8. On November 21, 1979, following the adoption of the August 1979 Attorney General guidelines, CIA amended HR 7-1. HR 7-1a (7) of that regulation stated: 

   Any employee who, in the course of official duty, becomes aware of any information, allegation, or complaint of possible violations of Federal criminal laws by any person, including a person employed by, assigned to, or acting for the Agency, is required to report immediately such information, allegation, or complaint to the General Counsel. The Office of General Counsel shall consult with the Office of Security and the Office of Inspector General when necessary in conducting a preliminary inquiry to determine whether a basis for referral exists and shall obtain from concerned Agency components an evaluation of the impact, if any, of a prosecution of such a violation on the national security or foreign relations of the United States, including intelligence operations which may be jeopardized or intelligence sources and methods which may be compromised. Pursuant to 28 U.S.C. 535 and Section 1-706 of Executive Order 12036, evidence of possible violations of Federal criminal law shall be reported expeditiously to the Attorney General by the General Counsel in accordance with procedures and guidelines adopted by the Attorney General
   . . . .

   This major revision of HR 7-1 established a requirement that CIA employees report information, allegations and complaints regarding possible violations of federal criminal law by any person directly to the General Counsel instead of indirectly through the Inspector General.

9. On November 21, 1979, CIA issued Headquarters Notice (HN) 7-39, "Supervisors' and Managers' Responsibility to Report Evidence of Crimes to the Attorney General--Executive Order 12036, Section 1-706." Section 4 of the HN addressed the issue of reporting potential crimes by employees: 
   . . . .
   a. Employees. Senior officials of the Intelligence Community are required to report to the Attorney General evidence of possible violations by an employee of their department or agency of any Federal criminal law. The Executive order defines "employee" more broadly than the general or dictionary meaning of the word. "Employee" for the purpose of reporting crimes means a person employed by, assigned to, or acting for an agency within the Intelligence Community. Thus, for example, an agent, a safehousekeeper, a contract employee, or an independent contractor performing services for CIA is considered an employee.
   
   In view of these obligations, all employees have been instructed to report to the Office of General Counsel when, in the course of official duty, they become aware of (a) any information, allegation, or complaint that an employee may have violated any Federal criminal law, and (b) any facts or circumstances that raise a suspicion in the employee's mind that a Federal criminal offense has been committed by a nonemployee . . . .
   
   (Emphasis added.)
   On the same day, CIA issued a companion notice, HN 7-38, "Employee Responsibility to Report Evidence of Crimes to the Attorney General--Executive Order 12036, Section 1-706." This HN provided the following guidance to employees:
   . . . .
   
   3. In summary, all employees are instructed to report to the Office of General Counsel when, in the course of official duty, they become aware of (a) any information, allegation, or complaint that an employee may have violated any Federal criminal law, and (b) any facts or circumstances that raise a suspicion in the employee's mind that a Federal criminal offense may have been committed by a nonemployee.
   . . . .
   HN 7-38 did not define the term "employee," but referred to HN 7-39 and noted that it dealt with the same subject in much greater detail. HN 7-38 also advised employees who wished further clarification to contact their supervisor or Office of General Counsel (OGC).
   • E.O. 12333. On December 4, 1981, President Ronald Reagan signed E.O. 12333, "United States Intelligence Activities," which revoked E.O. 12036. The provision of E.O. 12333 requiring reporting of crimes to the Attorney General was not revised in any substantive way, except for adding a specific reference to protecting intelligence sources and methods. Unlike the two previous Executive Orders, however, E.O. 12333 required the head of an intelligence agency and the Attorney General to agree on crimes reporting procedures.
   • Section 1.7(a) of E.O. 12333 stated that heads of departments and agencies in the Intelligence Community should:
     
     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.
     (Emphasis added.)
     Section 3.4(c) of the E.O. defined "employee" in the same way as that term had been defined in E.O. 12036:
     Employee means a person employed by, assigned to or acting for an agency within the Intelligence Community.