LETTER TO FREDERICK P. HITZ FROM STANLEY SPORKIN

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Document Number (FOIA) /ESDN (CREST): 
CIA-RDP05C01629R000100030010-3
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RIPPUB
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K
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15
Document Creation Date: 
December 22, 2016
Document Release Date: 
August 12, 2011
Sequence Number: 
10
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Publication Date: 
March 30, 1984
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LETTER
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Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 CENTRAL INTELLIGENCE AGENCY ~NASHINGTON, D.C. 20505 Frederick P. Hitz, Esquire The Flour Mill Suite 302 1000 Potomac Street, NVJ ti~lashington, DC 20007 Enclosed is my response to the American Bar Association questionnaire concerning oversig'rt and accountability within the Intelligence Community. I hope that my views will he of some use in your consideration of these issues. I want to emphasize that the enclosed responses represent my personal views and not__those of the Director, the Agency, or any of its officials. I ~?~ould appreciate it if you would advise me of the results of the working group's consideration of these issues. v ?.e rt r7 LL.1!1 p Iri:?. l,~~~} Sincerely, tan ear.,/ porkin ~~ J STAT ~ Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 QUESTIONNAIRE A. Criteria for Evaluation Please indicate the degree of your agreement or disagreement (with any qualifications or reservations) with the following general propositions, which are advanced as bases for the evaluation: 1. The activities of the intelligence agencies should be subject to congressional oversight, and the intelligence budget should be subject, as at present, to the controls inherent in the authorization process. ANSWER: I agree with both propositions - that the activities of intelligence agencies should be subject to congressional oversight and that the intelligence budget should be subject to the same controls inherent in the authorization process that applies to all activities of the government. Congres- sional oversight is essential for achieving a consensus within our gover:enmental system on the necessity for and direction of U.S. intelligence activities. Such oversight provides the Intelligence Community with a degree of protection that is indispensible to the effective accomplishment of its mission. However, my agreement with these general propositions must be qualified with caveat: the intelligence function is critical to the exercise of two functions which are committed by the Constitution to the President, at least insofar as the execu- tion of those functions is concerned. These functions are, of course, the responsibility to conduct military activities as commander-in-chief, and the formulation and execution of foreign policy as head of state. Consequently, congressional oversight of the intelligence function stands vn a somewhat different footing than does oversight-with respect to other Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 areas such as, for example, execution of policy concerning interstate commerce, in which Congress clearly plays a dif- ferent role. A somewhat different approach to oversight of the intelligence function is thus necessary to avoid making intelligence agencies the ground on which the President and Congress do battle over their respective responsibilities and authorities. 2. The exercise of congressional oversight and bud- getary control at present are satisfactorily adapted to take account of the special circumstances of the intelligence agencies. These include, in particular, the needs for opera- tional secrecy and flexibility and the necessity of giving foreign sources of information and assistance an adequate degree of confidence ir, the ability of the system to protect secrets. ANSWER: I agree that the exercise of congressional oversight and budgetary control has a satisfactory record for preserving operational secrecy and establishing confidence within the Executive branch on the ability of the congressional oversight system to preserve secrets. While the Intelligence Community has a high degree of confidence in the ability of the congres- sional oversight system to protect secrets, one should note the unlikelihood that foreign sources share the same confi- Bence with respect to the overall system as they see it. 3. The provision of intelligence should be an objective and nonpolitical activity. In order to foster this goal, the mechanisms of oversight and accountability for the intelli- gence agencies should be designed, to as great a degree as possible, so as to insulate the agencies from partisan polit- ical controversy; accordingly, the intelligence agencies should be protected from undue political pressures, whether coming from Executive Branch officials or the Congress. Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 ANSWER: I agree. 4. Because the activities of the intelligence agencies cannot be exposed to systematic public scrutiny, mechanisms of oversight and accountability must substitute for the role that informed public opinion plays in controlling the activities of other departments and agencies of the federal government. Thus, it is important that the structures of oversight and authorization be perceived by the public as effective and as making the intelligence agencies fully accountable to organs of government which in turn are accountable to the people. ANSWER: I agree. 5. It is important to ensure that the activities of the intelligence agencies are conducted in accordance with law and, even where there are no clear legal restrictions, that such activities meet a minimum standard of propriety. The latter concept is almost impossible to articulate, given the moral ambiguities that necessarily inhere in the conduct of intelligence activities. Nor is it easy to determine who should set whatever standards are to be applied. Nonetheless certain Forms of conduct (e.g. assassination or torture) are widely considered as being unacceptable in all or virtually all circumstances, and a broader range of conduct would be considered by many as acceptable only in exigent circum- stances. The structures of oversight and accountability in the intelligence agencies should contribute to the development of such standards and to their application in specific cases and, in .particular, for these purposes should bring to bear the viewpoints of individuals outside the operational sphere of responsibility. ANSWER: I would generally agree that all structures of over- sight and accountability, and not just those in the intelli- gence agencies, should contribute to the development of standards of conduct. However, the application of these standards to specific cases is one that must be carried out by internal mechanisms and structures, beginning with the respon- sible operating officials and, in appropriate cases, officials who provide legal review and perform the Inspector General Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 function. I believe that there is currently adequate oppor- tunity for development and consideration of the view of key officials outside the operational sphere. 6. The quality of the intelligence product should be given a very high priority in the oversight activities of both the Congress and the Executive Branch. The structures of oversight and accountability should be designed to provide objective and independent reviews of intelligence collection, analysis and reporting. The purpose of such reviews should be to ensure the proper utilization of budgetary resources, ade- quate attention to long-range planning and to meeting intelli- gence needs of national interest, and the objectivity and sophistication of analysis and the reported intelligence product. ANSWER: I agree that quality of the intelligence product should be given a high priority by oversight mechanisms. As will be seen by my views with respect to Question B_4. infra, I think there are adequate internal mechanisms to review the quality of intelligence. Congressional review is important, and is particularly helpful and useful when it looks at broad issues concerning the intelligence production process. External oversight review would be least helpful and effective by urging the establishment of additional formal bureaucratic devices, either within or outside the Executive branch, to address this issue. Finally, oversight in this area should be conducted in moderation, since too much second guessing may stifle initiative and necessary risk-taking. 7. Given the special nature of the intelligence func- tion, the normal processes of the Judicial Branch are not well adapted to play a role in the oversight of intelligence oper- ational activities, and an extension of the secret judicial techniques embodied in the Foreign_Intelligence Surveillance Act, unless constitutionally mandated, seems unwise. I Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 ANSWER: The FISA court represents a balance of the govern- ment's need for secrecy with a due concern for the protection of individual rights. Now that a consensus has been achieved on?that balance, the area of greatest concern, electronic surveillance within the United States, has been addressed. Current oversight and control mecr~anisms, particularly various internal legal reviews, adequately provide protection in any analogous operational areas. B. Specific Oversight Issues Please comment on the following specific issues of oversight and accountability. 1. Covert Actions: (a) 4 Are there adequate mechanisms in place to ensure careful consideration of the legality, feasibility and desirability of covert action proposals? ANSWER: Yes. National Security Council and other internal policy review mechanisms provide for careful consideration of feasibility and desir- ability. Internal legal reviews, including review by the CIA General Counsel and the Attorney General, ensures careful consideration of the legality of such proposals. (b) Do current structures within the Executive Branch ensure that the consistency of covert action pro- posals with U.S. foreign policy objectives is judged by officials with foreign policy responsibility and that the CIA does not become by default a policy- making institution? Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 ANSWER: Covert action proposals are formulated within the context of efforts to advance U.S. foreign policy objectives. Officials and groups within various agencies, including the Department of State, play a role throughout. The ultimate check on consistency with U.S. foreign policy objectives is, of course, the necessity to obtain Presidential approval. (c) Is there satisfactory oversight within the Executive Branch and the Congress of the way in which approved covert action operations are carried out? ANSWER: Yes, within both the Executive branch and Congress there are periodic reviews by appropriate mechanisms. (d) Are there additional oversight mechanisms (e.g. some form of specific approval by the Congress that you think desirable with respect to covert actions? ANSWER: No. A delicate balance has already been struck in this area. A prior approval requirement would paralyze the decision-making process. Current arrangements go as far as is wise and may already strain the balance. 2. Sensitive Intelli ence Collection? (a) Are there satisfactory controls over the legality of sensitive intelligence collection operations? '~ Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 ANSV7ER: Yes, Executive Order 12333, internal regu- lations and procedures, and the statutory oversight process ensure adequate legal review. (b) Are there mechanisms in place to ensure a proper degree of consideration (including obtaining objec- tive opinion outside the operational sphere) of proposed sensitive collection operations which carry potential serious adverse consequences or raise serious questions of propriety? ANSWER: Yes, internal legal and policy reviews ensure adequate consideration from outside the operational sphere of such sensitive collection operations. (c) Are the mechanisms in place sufficient to ensure 'that sensitive collection efforts are focused on intelligence collection targets of true significance? ANSWEP.: There are a number of mechanisms to ensure that sensitive collection efforts are focused on intelligence targets of true significance. These include both review and approval mechanisms within the Intelligence Community and the National Security Council policy review structure. 3. Operations Within the United States- (a) Do existing mechanisms ensure compliance with legal restrictions on domestic operations? ANSWER: Yes. Procedures established pursuant to Executive Order 12333 provide ;specific guidance for Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 various types of activities. Some activities re- quire a specific legal review and approval in each case. (b) Are there adequate checks on domestic operations to ensure that potential interference with individual rights and the integrity of private endeavors is held to a minimum and occurs only when justified by intelligence needs rising to an appropriate thresh- hold of seriousness? ANSWER: Yes, such checks are embodied in the National Security Act of 1947, Executive Order 12333, and the procedures and review and approval requirements discussed in my answer to 3.(a) above. It should be pointed out that the activities of CIA are not really focused in the United States and that there is thus little potential for interference with individual rights or interests. 4. Quality of Intelligence: (a) Are there adequate mechanisms to ensure that the United States is obtaining intelligence of the time- liness, reliability and quality necessary to the national security? ANSWER:. There are a number of mechanisms that address the timeliness, reliability and quality of intelligence. These include the President's Foreign Intelligence Advisory Board, the Senior Review Panel of the Director of Central Intelligence, the Product Evaluation Staff of .the Directorate of Intelligence, Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 CIA and the analysis and production subcommittees of the two oversight committees of the Congress. (b) Are there sufficient protections to insulate the intelligence analysis and reporting process from political pressures or bias? ANS4JER: Many of the same mechanisms cited in 4(a) above also help to insure that analysis is as objec- tive and as honest as it can be. Beyond these mechanisms, however, the surest safeguard of the integrity of the analytic process from political pressure or bias is the integrity of the analysts and their managers, Intelligence is too important to the United States for there to be any room for "skewing intelligence to meet political pressure or bias and senior policymakers recognize this. (c) Is there an adequate system for independent evalua- tion of the quality of intelligence? ANSWER: As I have already detailed, the President's Foreign Intelligence Advisory Board, the Senior Review Panel of the Director of Central Intelli- gence, the Product Evaluation Staff of the Direc- torate of Intelligence, CIA and the analysis and production subcommittees of the two oversight committees of the Congress ensure adequate indepen- dent evaluation of the quality of intelligence. Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 C. Possible Institutional Changes Please briefly indicate your views as to the desirability of the following institutional changes which have been mentioned as possible ways to improve oversight and accountability in the Intelligence Community: 1. The present congressional oversight committees should be merged into a joint committee. ANSWER: In my opinion, a joint intelligence committee should not be established unless there are compelling reasons to do so or unless it would result in advantages for both the Congress and the Executive branch. My perception is that at present things seem to be working fairly well and that there is thus no need for change. However, some experimentation in this area may be worthwhile, such as joint briefings or budget reviews. However, each committee's role in voting, making decisions, and other similar activities should probably stay separate. 2. There should be a bipartisan National Intelligence Board within the Executive Branch (with members appointed by the President with the advice and consent of the Senate for stag- gered terms overlapping presidential terms) to oversee intel- ligence activities. ANSWER: The President's Foreign Intelligence Advisory Board and the President's Intelligence Oversight Board currently play a role in this area. Creation of another board, with members appointed by the President with the advice and consent of the Senate, would appear to be unnecessary bureaucratic layering without any increased or .added benefits. Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 3. If there were such a National Intelligence Board, it should a) Deal only with issues of oversight and propriety; b) assume responsibilities now held by the DCI for long-range planning, budgetary review and establish- ment of intelligence policy. ANSWER: It should probably have the same functions as the PFIAB and IOB. 4. Such a Board should be required by law to give an advi- sory opinion on covert actions and sensitive collection opera- tions and to review such activities periodically. 5. Such a Board should be required to approve all covert actions and sensitive collection operations. ANSWER: Advice with respect to covert actions and sensitive collection operations can best be given by officials who have to deal with the realities of getting these activities accom- plished. Approvals for these activities are now respectively granted by the President for covert actions and by other offi- cials of the Community for sensitive collection activities. To give an approval responsibility to a group that is insu- lated from the problems that such activities are designed to tackle would detract from an effective ability to operate. This sort of bureaucratic layering would probably also result in micro-management. 6. Each major intelligence agency should have a General Counsel and an Inspector General appointed by the President with the advice and consent of the Senate. ANSWEP,: I disagree, largely becal~~e the present arrangements are working adequately. ~ Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 7. The Director of Central Intelligence should be appointed, as is the Director of the Federal Bureau of Investigation, for a fixed term. ANSWER: The nature of the duties and functions of the DCI and the Director, FBI are very different. The DCI needs closer interaction with the President because of ever-changing intel- ligence requirements and priorities. This sort of bureau- cratic requirement would diminish, rather than enhance, the DCI's position. 8. The respective functions of the principal intelligence agencies should be embodied in a statutory "charter". ANSWER: A statutory charter is not necessary since the principal intelligence functions are presently set forth in Executive Orders and other Executive branch directives. 9. A statutory charter should be adopted also to define rules on the conduct of intelligence activities now found in executive order. ANSWER: Statutory charters for this purpose are not neces- sary. As the last charter exercise showed, statutory guide- lines would of necessity be general, with exceptions and specific operating guidelines embodied in classified, non- public procedures. 10. There should the a national intelligence advisor to the President separate from any intelligence collection or analytic agency. Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 a) Such an official should exercise functions over the Intelligence Community similar to those of the DCI. b) Such an official should play advisory role only and have no "line" authority. ANSLVER: The functions that such an official would perform are currently performed by the DCI. To add another layer would adversely impact on the relationship that now exists and would clearly be harmful to the national interest. ~ Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 ~' Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3 Distribution: OGC-84-50139 1 - DCI 1 - DDCI 1 - ExDir 1 - DDA 1 - DDI 1 - DDO 1 - DDS &T 1 - iG 1 - COMPT 1 - D/OLT, 1 - D/PAO 1 - GWC Signer 1 - SS Signer 1 - OGC Cliron l - OGC Subject 1 - ICA Subject Sanitized Copy Approved for Release 2011/08/12 :CIA-RDP05C01629R000100030010-3