Congressional Record: October 3, 2000 (Senate)
Page S9686-S9687

                    [INTELLIGENCE AUTHORIZATION BILL]

                             section 305

  Mr. BIDEN. Section 305 of S. 2507, the Intelligence Authorization
bill, provides, in brief, that no future ``Federal law . . . that
implements a treaty or other international agreement shall be construed
as making unlawful an otherwise lawful and authorized intelligence
activity of the United States Government . . . unless such Federal law
specifically addresses such intelligence activity.'' This provision is
necessary, the Committee report explains, because ``[t]here has been a
concern that future legislation implementing international agreements

[[Page S9687]]

could be interpreted, absent the enactment of section 305, as
restricting intelligence activities that are otherwise entirely
consistent with U.S. law and policy.'' The concern arises from an
opinion issued in 1994 by the Office of Legal Council (OLC) of the
Department of Justice. In that opinion, the Office interpreted the
Aircraft Sabotage Act of 1984--a law implementing an international
treaty on civil aviation safety--as applying to government personnel.
Although the OLC opinion emphasized that its conclusions should ``not
be exaggerated'' and also warned that its opinion ``should not be
understood to mean that other domestic criminal statutes apply to
U[nited S[tates] G[overnment] personnel acting officially,'' the
Central Intelligence Agency, out of an abundance of caution, wants to
avoid cases in which legislation implementing a treaty might
criminalize an authorized intelligence activity even though Congress
did not so expressly provide. I understand the Agency's concern that
clarity for its agents is important. At the same time, however, we
should take care to specify how section 305 is intended to work.
  One question is this: how do we tell when a Federal law actually
``implements a treaty or other international agreement?'' My working
assumption, in supporting section 305, is that we will be able to tell
whether a future law ``implements a treaty or other international
agreement'' by reading the law and the committee reports that accompany
its passage. If the text of that future law or of the committee reports
accompanying that bill states that the statute is intended to implement
a treaty or other international agreement, then section 305 is
pertinent to that statute. If there is no mention of such intent in
that future law or in its accompanying reports, however, then we may
safely infer that section 305 does not apply. Is that the understanding
of the Select Committee on Intelligence, as well?
  Mr. SHELBY. That is certainly our intent. If a future law is to
qualify under section 305 of this bill, we would expect its status as
implementing legislation to be stated in the law, or some other
contemporaneous legislative history.
  Mr. BIDEN. another question is how to tell that a U.S. intelligence
activity ``is authorized by an appropriate official of the United
States Government, acting within the scope of the official duties of
that official and in compliance with Federal law and any applicable
Presidential directive.'' I am concerned that this could be
misinterpreted to mean that some intelligence bureaucrat could
authorize some otherwise illegal activity with a wink and a nod. It is
not the intent of the Select Committee on Intelligence that there be
written authorization for a U.S. intelligence activity?
  Mr. SHELBY. I understand the concerns of the Senator from Delaware.
We expect that in almost all cases intelligence operations exempted
from future treaty-implementing legislation will have been authorized
in writing. I would note however, that many individual actions might be
authorized through general written policies, rather than case-specific
authorizations.
  Neither would I rule oral authorization in exigent circumstances. The
Committee believes that intelligence agencies would be well advised to
make written records of such authorizations, so as to guard against lax
management or later assertions that unrecorded authorization was given
for a person's otherwise unlawful actions. Such written records will
also protect the government employees from allegations that their
actions were not authorized.
  Mr. BIDEN. My final question to the chairman of the Select Committee
on Intelligence relates to how other countries may view section 305. I
interpret section 305 as governing only the interpretation of a certain
set of U.S. criminal laws enacted in the future and whether those laws
apply to government officials. Is that also the understanding of the
chairman of the Select Committee on Intelligence?
  Mr. SHELBY. Yes, it is. Section 305 deals solely with the application
of U.S. law to U.S. Intelligence activities. It does not address the
question of the lawfulness of such activities under the laws of foreign
countries, and it is in no respect meant to suggest that a person
violating the laws of the United States may claim the purported
authorization of a foreign government to carry out those activities as
justification or as a defense in a prosecution for violation of U.S.
laws.
  Mr. BIDEN. I thank the distinguished chairman.

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