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March 13, 1980
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LdFFK f1F I r, M/Dr9 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 T Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 ARTICLE Apt' '' THE WASHINGTON STAR (GREEN LINE) Oil PAG3 13 March 1980 The Nation is Carter Backed on CIA,,,- Secrecy A House committee relented yesterday and approved legislation that would allow the president to withhold advance notifica- tion to Congress of sensitive covert U.S. intelligence operations. . A subcommittee voted earlier to require prior. notice of all covert intelligence ac- tivities, but-Carter administration officials objected that some operations might be too sensitive.., The compromise would allow the presi- - dent to withhold advance notification if the delay was necessary "to meet extraordi- nary circumstances affecting the vital in- r terest. of the United. States or . to avoid unreasonable-risk-to the safety of the per- sonnel or methods employed." Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 ;1'LL "f THE WASHINGTON POST ~,I PAGE 13 March 1980 L.1 1 xills.: Covert' Operation Reports RestrictTd OT 0.Commiee& ?By Georg' -" 9 Washington Post Stiff Writer'''- sr., The House Foreign Affairs ,Com; 'mittee.yjQted, yesterday to supplant the,-layv governuig-the Central In telligence Agency's.. coverttt- opera= tions:with;.a.newTrule,providng for- muchmpre secrecy Acting. on a series ; of voice votes after.a closed-door briefing from. tire-, Cr`A, 'the coitititfee decided to restrict, reports. to- Congress about covert oper- ations.,to :the Senate and,House Intel- ligence committees, and: to allow the president to avoid prior notification when he deems it - "essential. A`move to require the president to give at -least some vague: advance no- tice of especially risky, operations without specifying any: details - Wis. beaten down.. It was the first test this'e Carter administration's drive to-get.' rid of restraints imposed on the CI in the mid 1970s and. provide it with'a.. freer hand' in the, new' Cold Waz:atr mosphere Rep. Lee H ,Hamilton (D-Ind. had. `won approval ; last . week, from.?a;;FOr;. eign-Affairsv subcommittee, of-,ate #lat' rule;calling::for.,Priori otice to Ur' gress of all covert. operations,: fitif he trimmed :it:. back.. substantiallyyin the face-of opposition, from, the CIA?and; committee, Chairman ,Clement,J: Z r; They-'final='version Hamilton- and Rep.' William S. Broom- ',field' (R.Mli h:).ocalle'for'?advance:no-. :tic. ofc'overryactivities,to: the.?two?in- -telligence `'committees ;.; but :with., two- .broadly' stated exceptions::; . Under {he :committee?approved, measure;;:."fhe president may "deter,. for the shortest practicable perio such prior reporting if, at the time tine.. report-is given, the president certifires~; that such deferral was essential meet extraordinary circumstances fecting. the vital interest of the U.S. or was:'avoid::unreasonable risk- to-the"isafety or securtty?oR.the`, personnel or methods employed :.. - Hamilton, said he.meant, this provi?,;' sion to be invoked only in highly.unu- sual circumstances. but some :nen ' hers voiced' fears that it would lie-' come the rule rather than the excep tion. ' ~. "The president` can certify these' .conditions any time. he.:wants,' pro-. .tested Rep ,.Donald J. Pease (D-Ohio)..: "we're.-essentially `saying, here that, I whenever the president is so inclined-' .there. can be-a. covert operationAvitli-, out notification to Congress"., for as long as he chooses. 'Pease' moved to add a proviso, that ,would require the president at least to tell the intelligence committees "that, an unspecified covert operation' is about to be undertaken,' but the idea was rejected. "It would provide a field day for-the press." declared Rep.. David R. Bowen (D-Miss.). Pease vainly sought to. remind his colleagues that the notifications themselves are supposed to be tightly guarded secrets. "There's 4 nothing in my amendment.., that says it would be broadcast-to -the media or anyone else," he said. Tlie , present law governing covert operations, knoiaxr''s;.the Hughes-Ryan amendment, was en-a acte i' fd 1974 as part of that year's foreign aid. bill.,,The Foreign Affairs Committee yesterday-ap- proved ~the new. version in, the-process- of marking up 'th'ls'year's foreign .aid. authorizations; ; _ Tinder the provisions `of Hughes-Ryan,. na, covert- actiomi t-foreign_oountries:can be. undertaken. ,,un? less-andsuntil theipresident""findai each snctl'"operaL tionaaiportant to.the':national"secuiity:and-'rep6rt!1: inratimelyiifashioni at desc 1'ptioni and!scope~of ire- operation. to the appropriate. committees-'of Con' gressi'Eight Senate and House committees;: includ- ing;Foreign-Affairs; are entitled to receive those-re- ports ports under the lawp although one of the panels, House,iArmed Services. has= said .it;' doesn't want themAs7ooz `io .lnsrttn9czzs!rt -n to Iraiiat?i5~ ~ifscci Yesterday's action would cut the number?'~o tbioil ttid:traditionally tight?lipped;'Senatel'and-,Houseif tdlligence:committees:;?Rep,;-Howarth Es Wolpe'(DJ Mictt);iarguingthat covert:operations clearly affect, foreignf policy, sought to, keep the House, Foreign, 'Affausif Committee, and - Senate- Foreign Relations: Committee on, the list: `but, ,his. colleagues; turaedi hwndowri;:again on;,:~ :;.;.;~=x '110tifad; FlamlIton?-said the'Foreiga:=Affain?Coni. mittee'Will'seek-a change - in,HOase'rules,'that would entitleIt-to three seats -oz-the House- Intelligence Comlm1tteei'It currentl iias:one seat, which'ls-~occu pied)by&h blockt. c-c a*x 4; r.?. Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05TOO644ROO0501360003-7 ArTrcL' P EARED 'House Panel Votes,!' 13 March 1980 to Ease Requirement on Reporting Covert CIA. Ac By CHARLES MOHR Sw.W toT2r Nw Yak Mcm WASHINGTON, March 12 - Five and one-half years after being given the right i to review the Central Intelligence Agen- cy's covert operations, the House Foreign i Affairs Committee voted to discontinue that responsibility and to give the Presi- dent. discretion to carry out clandestine. actions wi thout informing Congress. The voice vote by the 34-member con mittee seemed to- be an illustration of a strong sentiment in this session of Con- gress, fed by the Iran and Afghanistan crises, to "unleash" the Intelligence 'agcy. If, as seems likely, the committee measure is upheld by the full House, It will probably undercut efforts In the Sen- ate to write into law an obligation on the White House to give prior notification of covert intelligence operations to the Sen- ate and House Select Committees on In.I telligence, Senate sources said. Today's action by the Foreign Affairs Committee rewrote an amendment to the Foreign Aid Authorization Act of 1974,. which specifies that no funds can be ex- ' pended on covert operations "unless and until" a "timely" notification is given to! the House Foreign Affairs and the Senate Foreign Relations Committees and other "appropriate" Congressional Commit. tees. That so-called Hughes-Ryan amend- ment led to what advocates of less-re-1 'strained intelligence operations called) the "absurd" situation in which eight Congressional committees with more than 200 members were briefed on covert( acts. However, a recent study indicated that in practice only 46 members of Con- gress were briefed. The )Foreign Affairs panel today voted to require that only the select intelligence committees of each House of Congress : e- ceive briefings on clandestine operations.. However, the committee also approved language that would, in effect. permit the President to order a covert operation without informing the intelligence com- mittees, in "extraordinary" circum-i stances affecting the "national interest"' ,or to protect the safety of intelligences personnel and methods. The author of the measure, Represent- ative Lee H. Hamilton, Democrat of Indi- ana, originally also included a provision that would have permitted the President,( apparently at his discretion, to limit noti-j 'fication to the two chairmen and ranking minority members of the intelligence committees. 1- But even this limited form of prior noti- fication was dropped when Represents-1 tive Stephen J. Solarz, Democrat of Brooklyn, and some other liberals, at- tempted to suggest legal wording that) might have limited the President's dis, cretion to restrict briefing to the four sen,' 'for members of the two intelligence corn-1 mittees. The committee's action today gave the Central Intelligence Agency and the White House the authority to limit noti- fication to Congress, which Adm. Stans- field. Turner, the Director of Central In- telligence, requested last month in testi- mony before the Senate Intelligence Com- mittee. Representative Gerry I? - Studds, Democrat of Massachusetts, argued that the Foreign Affairs Committee was possi- bly exceeding its jurisdiction by legally excusing the Administration from full re- porting to other committees. Clement J. Zablocki, the Wisconsin Democrat who heads the committee, responded that varying versions of intelligence legisla- tion would probably have to be reconciled before final passage. Officials of the Carter Administration and the Central Intelligence Agency have argued that the Hughes-Ryan amend- ment "inhibited" covert intelligence operations because of the fear that wide- spread reporting to multiple committees I would lead to disclosures of secret plans. However, it was learned this week that in 1977 the Administration sought and re- ceived from the Department of Justice a legal opinion asserting that the Hughes-' Ryan amendment did not require prior notification. Sources said that, presum- ably, the C.I.A. had used that loophole and might have difficulty demonstrating that it had been inhibited by the law. Approved For Release 2009/06/05: CIA-RDP05TOO644ROO0501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 12 March 1980 CIA Op'-eratamns Froposa1 S, fits Bill. Panel By George Lardner Jr. WMhinston Post stsu w i .c'- The battle over the 1aw"aoverning the Central Intelligence -Agency's co- vert operations broke out yesterday in the House Foreign affairs committee with a conflict on the crucial issue of when Congress should tier' told of them. Foreign Affairs subcommittee last week approved a. proposal that would require advance notice, but Rep. Clement A. Zablocki (D-Wis.), the committee chairman, countered yester- day afternoon with an amendment that would allow the president, to ignore the'rule whenever he thought it neces- sary. Both plans would sharply. reduce ,:the number of congressional, commit- tees that would share the secrets. The current law, enacted: in 1974 as an amendment to the Foreign Assist- ance Act, calls for reports-to all the ,'appropriate committees" `of' Con- gress, a description that now covers seven House and Senate panels. The new legislation would restrict such no- tices to the House and Senate Intelli- -gence committees.. The 1974 law, known as the Hughes- Ryan amendment, is somewhat ambi- guous on when the reports are to be made. Conflicting interpretations, al- though written down-years ago, have surfaced in the past week. A study by the Congressional Re- search Service, conducted in 1975 but just' made public by Rep. Les Aspin (D-Wis.), concluded that, advance no- tice is already required gader Hughes- Ryan: ;'. The Justice Department then made public a portion of a 'secret opinion drawn. up in 1977 for then-Attorney General Griffin B. Bell, -which drew exactly the opposite conclusion. Law- yers for the. Justice Department's Of- fice of Legal Counsel held that it was "clear from the legislative history [of Hughes-Ryan] that reports - to Con- gress need not occur before the opera- tion is conducted." A Justice Department spokesman said the rest of the 10-page opinion on the Hughes-Ryan. amendment was be- ing .kept secret for. "strategic rea- sons." He. denied that, the portion dealing with the prior-notice issue was being released with an eye on the con- gressional debate., He,-said it was made.,public _this, week at Bell's re- quest simply by coincidence, as the re- sult of a newspaper interview with the former attorney general. In practice, the CIA generally noti? fies the House and Senate Intelli- gence committees, and several other panels such as Foreign Affairs, in ad- I vance of its covert operations. But' President Carter has come out strongly against writing the practice into law, contending that this would encroach on his constitutional prerog- atives. The dispute has already led to an impasse between the White House and the Senate Intelligence Committee over a legislative charter for the CIA. The charter would also repeal Hughes-Ryan, but progress on the charter legislation has been slow. In the House Foreign Affairs Com- mittee, Rep. Lee H. Hamilton (D-Ind.). sponsored the subcommittee version that would require notification to Congress of covert operations "prior to the initiation of such operation." Zablocki moved yesterday to tack on a proviso that would permit the president to wait whenever he decides that prior notice would "prejudice" the operation itself, the national secu- rity, or the lives of the individuals in- volved in the operation. An aide to! Hamilton indicated he feels excep- ~ tions should be made only when lives might be endangered. The issue may i come to a vote today during the full committee's markup of this year's for- eign aid bill. Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 NORTHERN VIRGINIA SUN 11 March 1980 Should St "Leashed" Editor: assassination attempts." I do not want the) There is a great cry to "unleash the CIA "unleashed" in the area of covert) CIA". activity: I want a legislative charter for - The CIA's primary function is. in- CIA that spells out- its functions and l telligence gathering. In the past it has not allowable procedures. It should' been too good at this. In 1978-CIA predicted specifically prevent any covert foreign that the ? shah was secure;, earlier, that adventurism without prior approval of the Vietnam would not collapse in 1975, and president and the Congress. CIA has l that war. would not break out in the Middle , engaged in-covert activity in the past that East in 1973. CIA has a very difficult job. It many disapproved (when they found out has to winnow out the significant bits of - about them after the fact). Interference in 3 information from the great mass of data.. someone I else's government should not) tips, and misinformation received. This is occur without- prior approval,, by out a- function 'that-=should be the -primary` '"'elected representatives.-:4 '~ - agency mission, and it should be done well. -" I hope your paper will publicize the It is essential that significant % data be proposed contents of the CIA charter being relayed promptly 'to the president. This debated on the Hill. All citizens should) "intelligenee function"' is not under any have a chance to comment on the proposed debilitating restrictions that I know of. The charter, and to inform their congressional CIA is already "unleashed". I hope it is representatives of their views. I, for one, improving its capacity in this regard. do not want the CIA "unleashed" in the Covert activity (subversion of other area of covert activity. I- want it under governments) is, an? entirely different firm control by ours elected represen-1 matter. Here, too, the CIA has not always tatives-that is,. "leashed". performed brilliantly. It botched the Bay of Pigs and a"grotesque mixture of evil- THEODORE W. TAYLOR and clownishness. characterized its Arlington:. Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 ". ,.~XTICLE 'r::1} Olt PACs &_r 9 On'ii~bu$" THE VILLAGE VOICE 10 March 1980 14/P$ICharters on II'DreSIC 43, y By Nat Hentoff "If the truth is the first casualty of war," The. Nation said recently, "civil liberties are the first casualty, of cold war." Predictably, the Cold Warrior in the White House has called for the removal of "unwarranted - restraints"; on United States intelligence agencies. He particu- larly wants to liberate the CIA. But, as we shall see in this examination of pros- pective CIA and FBI charter legislation now before Congress, the President also yearns to return the FBI to its glory days' when special agents were so resourcefully) free to protect the nation against its in- digenous enemies that they could strangle the Bill of Rights with impunity. Well, maybe Carter doesn't intend to go all the way back to the boundless criminality of J. Edgar Hoover, but the Justice Depart- ment's FBI domestic charter now in the Senate Judiciary Committee ? has ? more, than enough loopholes to gladden the black-bag heart of the. departed Director. Four years ago, Carter campaigned as a born-again civil libertarian, so appalled at pyramiding revelations. of .CIA and FBI abuses that he pledged his Administration would practically - cgmpel Congress , to i enact charters spelling, out what our in- telligence agencies, at. home and abroad, are empowered to do 'and what they'are, forbidden from doing. Like breaking the law. But four years is quite ancient history in the American psyche, and besides, such niceties as the civil liberties of Americans who are not intelligence agents surely be- come dispensable when the:.tiiition pihybe, at the brink of World War III. Or so Carter, his intelligence chiefs, and various members of Congress-most notably the ever-alert Daniel Patrick Moynihan-be- lieve. ' . Yet, even though it was four long years ago, some of you may remember the Sen- ate Select Committee on Intelligence's re-. port. on "COINTELPRO: The FBI's Cov-, ert Action Programs Against American Citizens." COINTELPRO was the :often devastatingly successful campaign by our secret police to disrupt and destroy lawful dissenting political parties, provoke vio-' lence among members of black nationalist organizations, and even, when in the na- tional.interest, destroy marriages of here- tics. The Senate Committee concluded that these FBI operations were "unworthy of a democracy and occasionally, reminiscent of the tactics of totalitarian regimes." -:.The. remarkably- industrious FBI also engaged-without judicial.. warrants-in wholesale wiretaps, mail openings, and plain breaking and entering., Moreover, that. Senate committee, headed by Frank Church, disclosed that "between 1960 and 1974, the FBI conducted over 500,000 sep- arate investigations of persons and groups under the `subversive' category predicated on the possibility that they might be likely to overthrow the government of the United States: Yet not a single individual or group has been prosecuted since 1957 under laws which prohibit planning or advocating ac- tion to"overthrow the government." (Em- phasis added.) FtlSo_' over:. a half-million': dossiers-at least=were maintained' on' 'innocents citizens for no lawful purpose whatever. Many were surveilled, had , their mail opened, and, as is often-, the case with intelligence . agencies, had *their in- vestigatory 'records as "subversives" trans. ferred to other government departments, ivith results they may never know... ' -, As for the CIA, although the 1947 In-; ternal Security Act barred these otherwise unguided missiles from performing domestic security functions, dashing.CIA agents were all over the. American land- scape. They cultivated covert informants among professors (some' of-whom doubled as recruiters of students). They. engaged for 20 years in MKULTRA, an experimen- tal mind-control program based. on drugs. Among.MKULTRA's guinea,.piga were a: sizable number,-of wholly unwitting Amer icans.. _(For_ instance, -'LSD .was-. adminis.' tered,under CIA auspices,to..students, mates in state! prisons,'". and,; patients in mental hospitals throughout i They weren't told it,waa LSD.) . " : And for its most. ambitious domestic venture, the CIA ;created::Operation CHAOS, which., involve& surveillance of. hundreds of thousands 'of anti-Vietnam War activists.-The entirely-disingenuous rationale for this massive 'CIA violation of ? the National Sequrity:Act let alone. the, First and Fourth Amendments-.was'that., its agents had to-collect information on the ! political activities of these citizens in or- der. to find out whether they had foreign connections. Some of these CIA agents, by the' way, actually. infiltrated : "leftist',' groups, so you may have beerI demonstrat- o~~iT~G~9 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 ing alongside a veteran of the Bay of Pigs. One of the targets of Operation CHAOS was this columnist, as I found out recently when,. in repsonse to a Privacy Act re- quest, the CIA sent me a "sanitized" ver- sion of my dossier. It is as abundant as my previously obtained FBI file. There is nothing-in the CIA dossier that I did not write about-in the Voice or other publica- tions, although I question the accuracy of certain.unnamed agents' reporting of my anti-war speeches. (Their minds seem to get terribly confused by discussions of constitutional law.) In any. case, although these spy reports awaken - a . certain nostalgia and momentarily. amuse my children, I" am not amused, because I do not like being secretly surveilled, especial= ly by my government. All these years later, it's still a disquieting feeling. -With regard to. the "foreign connec- tion,"there is' only one link to another country.. in my dossier. Under "an in- tercept program" called HTLINGUAL, the bastards. took a letter to me from Moscow,-opened and read it, put a copy in my file, and-then sent it along. In June 1962, a,21-year-old Russian student and reader of- The Jazz Review (which I co- edited) had written me about the suddenly vigorous state of jazz in his country. He also included the foreign intelligence that Benny Goodman;: at that .very moment, was playing a- gig. in -Moscow. And the Russian ended with references-obviously code names-to Coltrane, Monk, Stitt, . and 0. Coleman... Markings on. this farrago of "sub- versive" docunients.indicate that some-of them. traveled back and forth among the CIA,. the~FBI, the-Department- of State,-. and. other agencies whose names ,-I can't make outfIf dissenting were not my pro. fession,. I''might well worry;-.about where these tracings of? this suspect citizen have: taken root=and with-.what- malig 4= nant' a harvest.. "?=: ,Other lives were maimed, however, and: .some-were destroyed, 'because'of the "ex- cesses'?. of -the' intelligence "agencies Yet "despite, the' exhaustively, ' documented Church Committee reports and the vari- ously astounding exposes by civil liberties ? ups,`; journalists,``and.''former . in= l gro telligence agents, no legislation controlling; ,the CIA and the"FBI-?has been enacted.:.: Accordingly, when the President, 'as in his recent State of the Union address, so earnestly urges the.emancipation .'of the intelligence agencies; he is whistling Dix. t-*ie. They have hardly.been fettered. In the February 9 Neer:". Republic, Morton -Halperin, a former 'National Security Council staff official,- points out: . Fou ' years after congressional' investigators documented - that." the CIA and other in- telligence agencies-had' seriously abused the. rights- of Americans,-. Congress- hasl done nothing but'create committees- and charge them with considering legislation.'-'l Vying with Senator Hudd4nston'a Na tional Intelligence Act in the Senate is a glow; however, Congress might finally.; best do something. The wrong thing. qIA and measure friend.-Daniel Patrick Zvloynihan. In the FBI- "charters" have- been .introduced in yn but they-are very. light on rest of this series, I shall explore this session , reform, and very heavy'. on legitimatizing many ' of the abuses of- -the past'-'"As Halperin notes:' ?"Now' the intelligence agencies' and others have seized the op- portunity of the current crisis to press for legislation weakening the democratic lien-j its on intelligence behavior that-,already exist.,. ? _ < One of the bills S. 2284, has been introduced by' Senators Walter Hud- dleston, 'Charles Mathias, Birch_Bayh, and Barry Goldwater;, Much of it is sup- ported by the Carter Administration. It's called the National-.-Intelligence- Act -of 1980. (Worth noting. is that the last such bill introduced was- -the National In- telligence Reorganization and Reform. Act Moynihan's garden of horrors, as well as the domestic FBI charter (S. 1612), which Ted Kennedy, alas, is not equipped to understand. in civil liberties terms be-' cause, in his student days, he was ap- parently absent the day they studied the Bill of Rights. As for `Huddleston's National In telligence Act of 1980, the American Civil Liberties Union has greeted its appearance by sounding a loud alarm. Under the bill, warns the ACLU, "The FBI at home and the CIA abroad could search records, en- gage in physical surveillance, .'plant agents, and use other techniques to secret ly gather foreign intelligence-information in the possession of innocent Americans." (E h of 1978.-Ain't rig emphasis on reform-this - mp asrs . added.) Or, information time around.)- thought to be in the possession of innocent It is somewhat ofan'exaggeration' to Americans. These- provisions in the new say.'as do some, critics of the bill,.that'its bill would have authorized the FBI and -only substantial lim'itation'on the'CL4 is. CIA surveillance of the anti-war' move. to-: prohibit. it from.. assassinating. people went: .- = But it is true that the measure hardly puts In other words putting these particular much of a legal strain on our native James spy-licenses into a congressional charter Bonds-. By the way, even the stricture on no longer makes these kinds of operations 'assassination - bothers such of the CIA's at all dubious. On the- contrary, it, en. more devout. admirers as the Wall Street courages them. Similarly, says the ACLU, Journal.'-In a February- 21 lead editorial, if the bill is passed, "FBI agents could- that :guardian of the liberties.-of covert break into the homes- of Americans sus- ! operators complains that the Huddleston Petted of being agents of a foreign power' bill overly restricts the CIA by not defining and steal papers without serving a warrant or having probable-cause to believe-that a' the term; assassination.' What looser crime has been or is .about to -be -tom: i definition' does the Wall Street Journal witted:" have "'in mind?-.. Maybe assassination =Who is to give these FBI agents the; should be permissible only if done by a - . - hired third party from another country. Or secret warrants-that they do not have to another galaxy. Or maybe assassination serve-which will legalize. these burglar should be "lawful" if no mark is left- ries?- A secret Federal court-, already in either on the surface of'the cadaver or in operation and currently deciding on ap- the tissues. Or if the poison doesn't take Phcations for- national security wiretaps. -I effect until a year and a day have gone by. You never heard of it? You are not alone. -? "To its credit, however; the Wall Street 1' Also in the bill is this vintage J.. Edgar Journal does not equivocate on how far the 'ACLU.- Hoover stratagem, as- distilled' by--the- CIA should be allowed to go in all matters: Americans could be secretly in- "Given. the world that has emerged, we vestigated under the guise of considering should be able to recognize that the CIA is them for. use as sources or agents or be- 'not a-law-enforcement agency;.in impor- tent. respects it is- intended - as 'a- law- breaking agency. "(Emphasis added.) And that` n-deed is -the spirit of 'much of the cause they are believed to be targets of a_! hostile- intelligence service." The latter:is "exactly'the kind of justification the FBI used In ; attempting to defend its' sur National Intelligence-Act oL198a. The bill ! veillance of: Martin Luther King, Jr., at' also includes a charter for the FBI vrhen it the height of the Civil Rights Movement." is involved' in operations-in'this country. Who was targeting Dr. King? The KGB, of .'' _ _ .dealing with foreign- intelligence. (As al- course. If you believe the FBI read noted, the?domesticFBI charter The Huddleston bill also has'no effec y ' tive -restrictions on the CIA's covert use of quite-another bill, is marinating in .Ted ajournalists, or members of the Kennedy's Senate'Judiciary Committee:. academics, c The government will continue to It's S. 1612, The Federal Bureau of In clergy., g vestigation Charte~r.-Act.. The House _ver nurture a seemingly innocent person's be sign is HR. 5030.) trayal of fellow professors, .of?students, of journalistic sources, of readers - (through planted stones), and of true believers.-And in . the . process, the-. credibility. of academics, journalists, and clerics who are not spies will. be increasingly damaged. "Whom can yoir trust?" will become the national credo. r?n,emTiilD Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 But I have left out one ultimate safe- guard. After proclaiming the need to ex tirpate all "unwarranted restrictions" -on-- the CIA, Jimmy Carter has reminded is that he personally would "guarantee that.- ,abuses- do not occur." - So long-as we have Honest Jimmy, of what need is the Bill of Rights? Also next week:. the patriots'* push in Congress to exempt the CIA from most of the requirements of the Freedom. of In= formation--Act. That- way, -you'll never know about-the, next Bay of Pigs, the next Operation-. CHAOS;, or._ the -CIA's next mind-control. venture. And not. knowing;=:., .you'll have;muchless to worry about and .will-:learn to"be a ,much -.more. contented citizen:;` Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 ARTICLE .iefLl LSD 05 U.S. NEWS & WORLD REPORT 17 March 1980 Letters Limits on CIA If only things were as good as Repre- sentative Ted Weiss envisions in "Take the Wraps Off CIA?" [Pro and Con, February 25]. The U.S. cannot, in a world of such diverse idealistic beliefs, carry on an effective intelligence net- work if it is to be subjected to such scrutiny. At times, "legitimate intelli- gence gathering" is not as advanta- geous-as covert (cloak and dagger) op- erations. If we were to do what the good representative advocates, we may as well invite the KGB to the next National Security Council meeting. So, Mr. Weiss, cut the moralistic garbage. Utopia is a long way off. PAUL A SCRUDATO Denison University Granville, Ohio Your February 25 editorial compar- ing the CIA unfavorably with the KGB overlooks the reason why we frequent- ly find ourselves in conflict with the So- viet Union in the first place: The Sovi- ets have no qualms about ignoring the most fundamental rights of their citi- zens--and those of other countries-to freedom from government intrusion into their lives. Nothing could defeat our own purpose more than to mimic the KGB by sanctioning a return to the gross abuses of the Nixon-era CIA. JIM KLANN Mount Prospect 111. For 30 years, the CIA has proved over and over again that no war effort or U.S. foreign-policy effort is complete without the supplementary support of the agency's covert action. Since 901, percent of these highly professional op- erations depend on improvisation, swift flexibility and speed in execution, it stands to reason that all politicians should be summarily disqualified from having anything to do with them. If we fought wars by political committee on the firing line, everybody would be dead. Everybody has seen politicians mess up practically everything. They are now messing up the biggest, best and most efficient secret intelligence organization in the world. HANs V. TOrTE Washington, D.G Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 'r I CI,E ~i'P15.aiiL'A PAG$ THE WASHINGTON POST 10 March 1980 ,RePV`A-S;P U*1 4-1- al Ps C has 'Buffaloed' Co'nuress By GeorgeLindner Jr. . Wasuitfitom ?Ogg SKT Wl ter The chairman of the House Intelli- gence oversight subcommittee' charged yesterday that the Central In-- telligence Agency has - "buffaloed" Congress into accepting ;a. warped in- terpretation of the law governing co- vert operations. Subcommittee Chairman.Les Aspin p-Wis.) said the HughesRyan amendment; of ;1974- was inteyndedeio require notice to .the congressional ?ommittees before the CIA could un- dertake covert activities in , foreign countries. The CIA has maintained that it need not give Congress, prior notice. President Cat'ter? oppose!a provisions of a proposed charter for the CIA that would require prior notice even more explicitly. White House aides and CIA officials contend that-this would en- croach on the president's constitu- tional prerogatives. However, Aspin, said a study by a senior lawyer for the Library on Con- gress' Congressional Research Service concluded that prior notice is re- quired by the 1974 law. "But in an effort to cooperate with the. intelligence community, we have accepted a warped interpretation of the law" Aspin said. "The key term is `unless and until,` he:-declared. "The CIA cannot launch at covert act on:.;pnlesa :and until' Con- gress has been notified. And that plainly means prior notification." The Hughes-Ryan amendment was enacted after a furore over CIA activi- ties in Chile. Under it, the CIA may not undertake any foreign operation -other than those strictly limited to intelligence gathering-"unless and until -the. president finds that each such operation is important to the na- tional security of the United States and reports, in a timely fashion. a de. scription and scope of such operation to the appropriate committees of Con- gress...: " The CIA has always emphasized the ,.in timely fashion" clause. The words, "and until,"'were added on the House floor at the behest of Rep. John Bur- ton (D-Calif.) shortly before the law was passed in final form. In practice, the CIA notifies key members of the House and Senate In- telligence committees, and several other panels, in advance. But CIA of- ficials contend that the practice ought not to be nailed down in law on the grounds that there always will be a need for unforeseen exceptions. The practice. in any case, is some- what diluted. The notifications some. times are extremely vague. Both Pres- idents Ford and Carter have made so. called "generic findings" declaring in .advance that the CIA could carry out a wide range of covert operations dealing with narcotics, terrorism and counteri.ntelligence,' according to in- formed sources. r r. Other secret-. subjects. sources say,- since have been added to the list. The-'t congressional committees are not told -! of the specific covert actions dealing with those problems unless they ask about them:. '\ The author of the Library of Con- gress legst study; Raymond .J. Celada? said the legislative history of the Hughes-Ryan amendment strongly suggests that the conditions it laid down-for presidential approval and for notice to Congress-"must be com- plied with before the planned covert activity is put into operation." The study pointed out that the-law was enacted alter a more stringent ef- fort to outlaw covert activities. The House version. drafted by the late Rep. Leo Ryan (D-Calif.); was the one that- became law, with Burton's amendment. Celada concluded that it 'still was meant. tar require prior no-d tice, except in wartime when reports -`'in timely fashion" would suffice. His study was done in 1975 and. made public yesterday by Aspin, who recently discovered it. - The- CIA has-been seeking repeal of the - Hughes?Ryan - amendment for years, primarily on the grounds that it requires reports to too many congres. sional - committees. But Aspin said ! only three-the two Intelligence com--1 mittees and a House Appropriations., -subcommittee--systematically review' covert actions.. Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 I'D ?'`tVy ~movVL 9 March 1980 rt41,~,i&,a1L It-was. there;for-50 million. Americans,tofseel .during President: aster's Jan. 23 State.of the Union: ? sieechThe television' cameras focused on the CIA director; justas.Car'ter:came-tothe part.about removing "unwar= ?ranted restraintss''on the intelligence_aJe icy . i~ The. admiral's smile lit up the screen.,There was hi s old' "Aiiaaoolis. classmate,, the. President: of-the United' States, r .adyonce again to unleashthe CIA: Iii that briefmoment. i. 1onecould-easily visualize the agency rising from the ashes of intelligence reform.- The CIA's timing is? flawless. Iii the present hawkish at- mosphere in Washington, intelligence reform has become almost'a)dirty word, an X-rated idea?whose time has come s-and-probably gone ,Thanks tothe -Ayatollah ,Ruhollah Khomeini, the Soviet takeover in Afghanistan and Carter's 'hard=line foreign policy; the emphasis now is on? streng- 'thening the CIA's powers and punishing its critics with jail. sentences and fines. 4- All. but forgotten are the abuses. that were-revealed by a Senate investigation in a much different atmosphere five years,_agor. when a committee,?:Sen Frankl .Church~-.(D-Ida.) disclosed how theCIA-,had??tested:.drugs .on-;unsuspecting American citizens. (one,--of whom:- Dr.l .Fran(-Olson, committed suicide); how- it opened- first-class :mail in violation of federal-law,. spied on the anti- ietnam ti~ai^movement in Operation CHAOS,.and hired two:biafi- asi .Johnny Rosselll and Sam- Giancana-both. of. whom have since met violent -deaths-to-,try,to murder,,Fidel ,Castro. The list of CIA horrors was much :Ionger, of .course. ,ast:;gionth. the Senate .Select. Intelligence '.Committee, ith t$e'. virtually complete! ,supportof President Carter, i>~,froduced an intelligence 'c. ;,that seemedonlyre-? rnoteIy' related to the findingsh of he Church .committe tV e. hilo outlawin g, CIA assassinations, the. bilt would loosen Prgcedures..for covert operations, ,gtve the-agency a free alLbut exempt the CIA?from complyingwith the' Freedom I of4i-d ationAr' : r or atone, in the wake of the Church comruttee Imes Flo trdrr there was ;considerable pressure: to reform the ;CIAO the ;FBI and the other.: intelligence'agencies..,'wo- ;years:ago; the Senate iatelligence'committee, thesucces- sor'to-the Church panels hammered-out its first-charter, at tempting to define_in- law- what the-agencies could and could-notdo. The bill, S 2525, set off"a great howr amongl the'agencies and their -conservative:supporters on Capitols 1 JL I'oo restrictive, they said. 'Tlie staff of the- Seriate'committee diligently wens' back to'the drawing board: An endless . series of.meetings ensued betwe'ere the. committee -staff ?and"representatives-of the' National SecurityCounciL-the Justice' Department : and the: iiiteTIigence agencie"srEittlebylittlert eprovisions-of the, ref6rm=bill were whittled: away:: At':.. ~- = rr.4:? Pffrt&emeantime;'t)ieoriginal'reform"measure did "at-thee end of 19r7& It was -not ' reintroduced- last year: ,The- new, inilder'version? of the"charter' that made its appearance' on' iFebi &;was supposed'to have been'unveiled by the White' =House and 'the Senate. committee=last fall: But.a series of fdreigrr=policy ?nsesZ intervene&4irst!:the= skirmishing. averSALT' H ;.then''Iran, then lAfghanistan:':?r~;-w;s~~ Lrthe';vake of these eitents, Adm.:Turner and his depu-' :tyi at;the`CIA, Frank .Cc'Carlucci;:saw, thehole in-:the line ,andrplunged through:-.Not: only might it be possible to i avoid'-any reform, but in the crisis atmosphere: the agency -might be able toram through legislation vastly ding: dis powers. >-.a,- . s; .. a u;. ,, ~.,_..,?~ L.The-President's speech had barely ended when Sen. Da='1 mel P Moynihan`(D-NY) broke -ranks with 107601"1 leagues :on the intelligence committee and introduced a fhree'proneed:_;CIA-backed lepaslatiivepackage. The,fust part of his bill would repeal;the Hughes-Ryan amendments and:free the CIA to conduct.more covert operations with-? out telling Congress in advance. The second part would; virtually-exempt the agency from the Freedom of Info-] mation lAct, and the third is a mini-Official Secrets Act; that would punish government officials and-until Moyni- han lateif modified his position-the press and other citi- zens who talked or wrote about. the agency,,if. "identities" were revealed. k > , bioynihan's ploy was apt designed , to.endear him to Sen. Birch Rayh (D-Ind.), chairman of the Senate Select Com mittee on Intelligence, or. to Sen. Walter D. Huddleston; (D-Ky.), who heads: the-.subcommittee, that has been: trying to salvage a CIA charter; bill. In. varying form, all three'of the features of the bare bones Moynihan bill are contained=irethe-.Carter-backed. CIA' charter 'package. The danger, however; is that Con:-'l gress in an election year=and amid the relentless beating ' of war drums-will choose to pass only the three pro-CIA parts of the package and abandon all or most of the curbs; on the agency.: There is. broad support in Congress for repeal of:`the Hughes-Ryan amendment, which has required the CIA to- report covert operations to as many as eight congressional committees.:. CG11jv! Uzj. Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 The amendment; sponsored by the late Rep ?I;eo Ryan of California. and former Sen. Harold Hughes of: Iowa, ?was' passed in the wake of the CIA's covert: undermining of the: regime of President Salvador Allende-in Chile (on Richard Nixon's orders)'and the failure of CIA,-Director Richard: Helms to tell Congress the truth about. it Its language ,is- simple. No funds may be. spent by;.CI on covert opera= f tions abroad unless the -President'finds the operation:is; "important" to national security and reports "in a timely; fashion" to the "appropriate" committees of the Congress, including the foreign relations committees of both houses. I In practice, the:CIA~initially reported to those commit-' tees plus the armed, services and appropriations commit- tees'in both houses; six in all: By 1977, with the formation, of intelligencp? committees in the Senate and House, thee., number had -grown toeight. (Currently it is down to sev-1 en;since?.the2ous& ned Services Committee has decid- i ed-.zt-- does:: nstr'*ant?;to, be briefed) The CIA. and, its suppgter3=ar$ieaGffugh>'s-Ryan-meant sharing CIA j secrets?with, i63.members of Congress' and 41 staff mem-1 :bers. This, the agency argued, would result in leaks of se- crets to the press: When iris pointed?out that no such leaks' off covert operations have occurred, the agency's advocates-,' fall back on. the claisilhatAhe mere requirement for, re- porting to so manycommittees_has so inhibited and intimi- .dated?Ithe agency-: that. it.-has.virtually-ceased running1 :covert opera tionswThe:truth is,4iowever that the agency. 1 b ~ The Carter-backed intelligence charter would require the CIA to report to only two committees, the Senate and House intelligence. committees. It would weaken the exist- i trig requiremenE that the President certify- covert opera tionsas- 'important'-': before' they could take place. The bill would require ? the,President,to- do so only- if the operation involved.."substantial. resources, risks ' or.: consequences." And it would establish whole categories. of, covert opera- tinns,that the CIA..could conduct..without.telling Congress about each individual operation, as long as the`President had approved.the categories and informed the intelligence committees about them. -blembers of the Senate panel say that in practice, the CIA has eustornarily notified it vance of conducting any covert' operations.: It is' a vital point, since reporting' after: the fact gives Congress little .voice in controlling them = But the. senators came in for a rude shock when Turner! recently testified before the Senate Select Committee on Intelligence. that it. was "not correct" that the agency had notified the committee in advance of every covert opera- :tion., indeed; he indicated that such information had been withheld more than once The issue-had come:-to .4 head when Senators Bayh, .Huddleston,:conservative-Jake Garn (R-Utah), and liberal ;Charles Mathias-Jr. '.(Ratitd:);met at the.White House on 'the=-morning of Jair-30`with'the President, Turner, Zbig- .niew. Brzezinsld;,Carter's national security adviser, and .David Aaron; ` deputy .adviser. According to -Huddleston, ' .the President and his aides argued against prior notifca tiin on "extremely difficult-. cases where lives. were at stake''-and in cases. where "another country would refuse to deal with us if it had to be reported to anyone. Chairman Bayh was unconvinced, arguing that even in Jrextremely sensitive" operations of "short-term duration" it .would be possible to notify- the committee in advance if I.M. senators and the President could agree. on -"special procedures" for doing so. After the White House meeting roke p lawyers for both- sides stayed behind and ae- _terripfed`to'draft language that would bridge the gap be-~ 3wteeri Carters position and the committee's. That effort1l abed. .t- ... .. r - Z. -.. .-., , ....-Si :. ...-!'. :' - When the charter was made public, a little mcre than a; week later, it contained-language requiring the President' to-give the two committees "prior notice" of covert opera- tions, except in "extraordinary circumstances" when for 48 hours the advance notice could be limited to the chairmen and ranking minority members of the two committees and the four leaders of the House and Senate; These were the "special procedures" Bayh had inmind._ =_ Carter would not go along with blanket prior-notice. In-a, letter to ' Bayh, he gave: the., bill his general 'support but made itclear that "a few-- issues remain to be resolved" so that the CIA would-b- freeto carryout "action-in extraor-+ :dinary- and difficult. circumstances."' At the same time, Carter endorsed "a majority. of the provisions" in the char- ..-,:,Among those provisions as the'one exempting-the CIA .from the Freedom of Information Act except for_requests; -=by Americans for?.data?aboutthemselves contained in CIA files. Critics of the measure argue that there- is: no.valid reason, to.except: the. agency and that if such'had; '..been-in'effect;; the. details of the CIA's drug-testing pro- an information about CIA spying on Americans in Operation CHAOS would have been suppressed. Morton H. Halperin, a. former. National Security Council' -official -an ,.director of: the- Center. for National Security "Studies,argues.that: the CIA already has substantial con- .troI. over what=it chooses to release, since-the Freedom of Information Act permits the agency to withhold. classified data. Although. the courts ; could conceiveably: force the' ?CIA to release secret material under the Freedom of Infor- mation Act, no such information has been made-public by - court.action now. - a One of the more difficult measures ?being?pushed-by'the: :CIA is the so-called "Agee" bill, prompted by (b.-in ::officer Philip Agee's disclosure of the names-of dozens of CIA"officers and agents in his book-, "Inside the Company: ,CIA Diary.":In the Carter-Senate committee version, the; CIA charter. legislation would impose criminal penalties on.i .government officials or former officials who disclose-clas./ .;sified information that reveals the identities of CIA.agents,~ informants or sources.. 7A The much broader Moyniharrversion-as on, inally p/ -) posed-would have provided jail or fines, or both, fox re- porters or other persons outside the government who-dis- closed information that could. reveal the identities Of CIA agents, inforniants or sources. On Feb. 20, Moynihan re- :treated. He said he would withdraw the section applying to ~thepress because it might have a chilling effect" on Jour- Another troublesome . issue . tliattongress will Have to face if it?passes- a comprehensive intelligence charter is' -whether and to what extent the CIA should be-allowed to. use journalists, clergy and Academics as_ spies. Iii 1976, George-Bush, then the CIA director, announced that=the Agency would- no. longer pay full-time U.S. reporters to act! as intelligence agents. Stated another way, it meant the ;agency would not employ spies using full-time reporting jobs as cover..(In the same announcement, the CIA said it! ;would not use American .clergy as spies.) But the Church .committee revealed that of 50 CIA' journalists,. fewer than half would be terminated under.the new rule,since'it- did :not apply to news executives or free-lance writers A year, ;later,; Turner . issued a new directive eliminating "strin- gers"-part-time.or occasional news correspondents -but ' continuing the.use of executives and free-lance writers: It also permitted "exceptions" to be made by the CIA..-director. ;allowing the agency to use press cover at will.. y 1 gATIir ULD Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Turner, in fact, recently testified that he had waived the ;ban on the use of such groups "on rare occasions, and that he had. done, so without informing the senate committee. The. CIA's deputy. director, Frank C. Carlucci, subsequent fly. told the-Senate:.intelligence committee that,, although !Turner- had- authorized waivers for the use of 'the 'pro :'scribed groups, the waivers had not been used. `How, this and other reform issues will be resolved'by the 96ttr Congress--is,. not yet clear,;but most observers in .Washington are-doubtful whether even Carter's tame.-re- `forms will pass.' And CIA critic Halperin points out-that, 'none of the changes sought by the agency "would-imprbve; ;the CIA's ability_ to predict world events."Jerry'J:-Ber- man;- Washington legislative counsel for the American:Ci- fvil Liberties Union:;warned gloomily that if the three.CIA'- ''goodies'.'-are enacted:"that.wiu be the end of charterre- form. The train may be going out of the station without'the `protection against abuses that the congressional iuvestiga- }}{ ~Lions disclosed." Small wonder that Stanfield Turner is -ILIA David Wise, co-author of "The InvisgCrGovernriient'' and author. of the "The "American :Pollee State:' .writes. from =Washington. His article is adapted from the current issue of Enquiry magazine Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 AFT1CLE APPEARED THE CHICAGO TRIBUNE 9 March 1980 push for and to-to.curbs Bar !times Coates WITHIN THE so-called intelligence and John Maclean community, recent events in Iran and Afghanistan are credited with winning Chicano Tribune Press Service WASMINC.TO:V-The United States' in- telligence community has seized on "a chanced national mood to press .from the removal of restrictions on their agencies. Moving on several fronts under lead- ers of the Central Intelligence .Agency, administration officials are seeking to, ease demands on disclosure of agencyI files under the Freedom of Information' Act and to decrease requirements of' informing Congress of covert schemes in advance. The restrictions were imposed in the 1970s after agency abuses of civil rights were brought to light. Perhaps most importantly, the agen- cies have won support for the idea that new charters should be written for the Federal, Bureau of Investigation and the: CIA in a fashion to increase their pow- ers in some areas while restricting their, The " moves are in 'sharp contrast to the past when, for example, then-CIA I Director William Colby sat meekly at a hearing table while former Rep. Sella) Abzug [D.. N,Y.] ridiculed him for hav- ing her mail opened. INTELLIGENCE OFFICIALS. obvi ously pleased, contrast Colby's humilia- tion to the forceful - some have said arrogant - presentations recently made by. CIA Director Stansfield Turner on Capitol Hill-, At a session of the Senate Intelligence Committee, Turner stunned Sen.' Steven- son [D., I11.] by disclosing that he has broken. a promise to advise the intelli- gence panel in advance of all covert CIA activities. Turner insisted that when he said un- der oath in 1977 that he would have "no difficulty" in reporting all covert plans to Stevenson, he only meant he would "try" to pass on data. Besides,- Turner told Stevenson's Senate Select Commit- tee on Intelligence, there is no law forc- ing him to inform that committee. Later, Turner aides. disclosed one sto- ry that the CIA had. withheld from the Senate - the agency's knowledge that the Canadian diplomatic mission to Teh- ran was hiding six American embassy workers. support, rather than condemnation, for the various spy agencies after nearly a decade cf concern over civil liberties, domestic spying against U.S. citizens, and even efforts to kill U.S. dissenters. A newsletter circulated among the in- telligence and defense communities re-! cently summed up the new climate by saying: "Out of the gathering clouds of the Iranian and Afghanistan crises there may be a silver lining. "... Because of the lack of good in- formation about Iran [before the Shah's downfall and since] there is growing sentiment on Capitol Hill to revamp the laws governing the intelligence agencies in such a way as to restore a clandestine capability." The letter was endorsed by several hardliners, including Adm. William Moorer, former chairman of the Joint Chiefs of Staff. Many hardliners argue that clandestine operations are limited severely by the 1974 Hughes-Ryan Amendment to the Foreign Assistance Act, which requires the House and Senate Foreign Affairs committees be informed of plans for covert operations. SPEAKING ABOUT Hughes-Ryan and the Freedom of Information Act, at a recent House hearing, Frank Carlucci, deputy CIA director, said that numerous foreign intelligence networks have re- fused " flatly to work with the CIA or other U.S. intelligence operations be- cause they fear leaks on Capitol H11. Just as Turner had surprised the Sen- ate, committee with his strong position, Carlucci startled the House Government Operations Committee when he argued that he personally believes the CIA can guarantee that no information will leak. But foreign spies just uon't believe that, Carlucci argued. "Foreign agents - some very- impor- tant-have either refused to accept. or have terminated a relationship on the grounds that, in ?ir minds-and it is unimportant whet:- they are right or not-bat in their minds the CIA is no longer able to absolutely guarantee that the information which they provide the U.S. government is sacrosanct." Following Carlucci and Turner, FBI Director William Webster and Bob In- man, director of the super-secret Na. tional Security Agency, along with rep- resentatives of the-Defense Intelligence Agency made congressional appearances to argue that their agencies need some of the same relief from past reforms.. At the White. House, an official told reporters that President Carter endorses "relief across the board" for intelli- gence officers who "have complained about the Freedom of Information Act. That prompted Sen. Daniel P. rvloyni- han [D., N.Y.] to" wonder aloud . about the changes in national mood. Moynihan said that in the fall of 1979 Vice President Mondale, who led the' drive for CIA reforms as a senator; dis- played a change of- heart at a meeting: with lawyers for the CIA, National' Secu- rity Agency, defense intelligence, and the FBI. Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 CIA, journalists disagree on nevus ethics By Richard Hoops The guarded border between the press and the Central intelligence Agency (CIA) has grown tensed ur~tg the past month..The-CIA is showing. new interest irnusing reporters as.'.__ agents but is cracking down on agents who Kant to report about the agency.' Many fears of CIA involvement with the media were laid forest several"" years ago byself-imposed agency regulations. journalists' concern has. been-renewed by the Feb: 19 U.S. Su- preme Court ruling in Snepp V:' United States and by the opposition., of both the CIA and,the-Carter adm-` ministration-to sectionsof a propose' charter for U.S. intelligence agencies that would protect reporters. The Supreme Court ruling in the case of Frank.Snepp, a CIA agent-turned reporter, upheld as constitutional a C iA contract requiring prior agency approval of any book written about it by past or present employee. Edito rials across the country denounced the ruling as a serious blunder into - delicate;FirstAmendment territory.. The CIA;.$rragencX representative. said, is"deligf'.;ed by the ruling. .A touchy issue ir;. the new charter the Na*Tnnal !nteh*enceAcf of'r 1980;=is Oro, sign to cleatfys :71 rate journalistand government' agen ties like theCtA.. In the past; the, press has beeittapped by the CIA for agents, information and cover. - Former CIA-di ector George Bosh=- limited thesepra ices in 1976'-and a year later the CIA~s current director. Stansfield Turner,. banned agency- contact with-journalists, clerics and academics, except in rare instances_.- -But in recent testimony before the U.S. Senate Select Committee on-ln,_? tell igence-,Jurner said he opposes legislated restrictions of the CIA's use of journalists and admitted that he-' has made exceptions tohis own- rules.- MINNESOTA DAILY 4 March 1980 In a February:visit to Minneapolis. Turner also labeled the unwillingness of reporters to cooperate with the CIA as "cynical and disloyal." ? . - - -Not everyone shares Turner'ssenti- ments. "I'm not-under the impression that reporters are under any obliga-. tion to be loyal to the CIA," said Bobby RayMiller, de6uty foreign - editor for United Press International (UPI)." What we are under the obli- gation to do is to be loyal to fairness and unbiased reporting. That means not being members of the CIA the . - KGB or anything else The agency maintainsit is not trying' to revert to dayswhen the press was. open territory, "We're not advocating the use of- - journalists, said Herb Hetu, public affairs directorfor the.CIA. "We agree that the-V -should not be used except in-extraordinary circum-- Interaction between the press and the CIA goes backas far as the agency 'itself. The CIA?ieceived routine.brief_, ings from correspondents in the 1950s and actively employed reporters in the 1970s. Convicted Watergate conspirator E. Howard Hunt told a Senate panel and the New York Times in 1973 that his dutiesas a former CIA officer in- cluded financing a Washington, D.C., news service and subsidizing a travel guide publisher. The news ser- vice, Continental Press, provided material for foreign clients; the travel guide, Fodor's Modern Guides, gave CIA agents cover as travel writers. In 1976, after inquiries into abuses by U.S. intelligence agencies, the select committee reported the CIA had sub- sidized hundreds of books during the 1960s: One of them, a book about . China,-was even favorably reviewed in the New York Times-by a CIA:. agent_ hibitactivities like these. Part D of,.- the -bilI bars any agent's 'real or osr tensible' affiliation with a-U .S.= as awi:.. .media organization for use cover. A select committee represeri tative said the ban would extend to religious and academic institutions and to.anymedia-abroad-that might The CIA opposes the press ban be- cause it "would tie our hands too much," agency spokesman Hetu said. The agency would rather follow its own regulations, which allow use of journalists with the director's ap- proval, he said, because "we want to - have that option under specialized - , circumstances." UPI's Miller disagreed and said "the CIA and American journalism should be kept very separate.'" Any chance that a-reporter could be_a CIA agent creates suspicion. Miller said-This causes problems for reporters,.he ..; added, because even if-none of them are agents, "thesuspicion will be'; . there that all of tttem PIT.;. r " .. Also under Senate consideration is a - bill which would exempt the CIA from parts of the Freedom of Infor- mation Act that.allows public access. to the unclassified files of govern- ment agencies,- The bill-the Intel li- gence Reform Act of 1980-is sponsored by Sen. Daniel Patrick Moynihan (D-N.Y-). It would also prohibit any past or present CIA em- ployee from naming undercover agents. Moynihan last month with- - drew one section or the bill that would outlaw publishing names of CIA agents. Critics pointed out that if the bill had been law during the Wa- tergate investigation, printing -- conspirator Hunt's name would have been illegal because of his connec- tion tothe CIA - Press advocates support a ban on CIA use of journalists, arguing that when CIA agents and-reporters collaborate or become oneand the same, the media is compromised. -1 Hetu disagreed. "I don't see how it -i does that," he said. "Are journalists such. moral weaklings that they need a law. to protect them from this?" . - Miller countered that credibility is a critical issue. '.A reader should have the confidence in what he reads in the newspaperand hears on the radio and television newscasts, to believe that what he hears is the truth and not_ some CIA plant or the official U.S.. government line," be said "Journalism,"headded "is not an arm of the U.S. government. ';. 'knowledged.- Both the C rter administration an the CIA oppose the pressrestrictions,, The CIA would rather rely on its-own ternal guidelines,:= the committee.; representative. said_"_TF ey (CtA and''" administration) don't wantit-har'd - enedinto law.'. Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 T O IAA ? THE RETIRED OFFICER March 1980 The history of failure in war can be summed tip in two words: Too late. Too late in comprehending the deadly purpose of a potential enemy; too late in realizing the mortal danger; too late in preparedness; too late in uniting all possible forces for resistance; too late in standing with one's friends."-Gen Douglas MacArthur MacArthur's words of decades ago forcefully remind us that this nation needs the best intelligence services possible. Events of the more immediate past-Iran and the onslaught of Soviet power in Afghanistan-are even tougher reminders that timely, accurate intelligence and military preparednetss go hand in glove in this hostile world. We are deluged with communications of every descrip- tion from electronic and printed media. We know every- thing and yet we know nothing. From around the world, almost as if we were one people, the concussions and in- flammations of each community are instantaneously passed to others. The floodtide tells all, but we are drowned in its immensity. The scale of values within our societies is so different that the true significance of events is lost. And in our rush to protect our civil liberties, we forget that there will be none to protect if we fail to put first things first. INTELLIGENCE SERVICES EMASCULATED The all-out assaults of the civil libertarians in the Con- gress and the press in the aftermath of civil disobedience in the United States and failure in Vietnam, emasculated what used to be the best intelligence services in the world. The CIA, the Defense intelligence agencies and the FBI made mistakes. They needed to be corrected. Unfortu- nately, those agencies were effectively shackled, even blinded, in the zeal to correct real and imagined abuses. Undoing that mischief will be a long, difficult process. Those unhappy events in the Middle East and Southwest Asia have their brighter side. From all appearances, the Administration and most members of Congress seem de- termined to halt the disgraceful and dangerous decline in the prestige and capabilities of our intelligence services. They have seen the truth and it is bitter. They have learned, that the danger to our security lies far less in the likelihood of the intelligence services willfully preempting our civil rights than in their incompetence to perform their vital tasks. What is it that hurt the intelligence agencies so badly? The Hughes-Ryan amendment of 1974-a parody of accountability-requiring the CIA to report covert ac- tivities to eight committees of Congress made any effective clandestine operation impossible. Further, in the face of anarchy, war and anti-Americanism abroad, our govern- ment has retired or dismissed many of our experienced in- telligence officers who were tempered in the conflicts of the 1950s and 60s, according to a former CIA deputy director for intelligence. Thus much of the human element so neces- sary to knowing what potential adversaries are thinking has been cut in favor of "technical means." Cut off from many valuable foreign sources, CIA effectiveness and morale have suffered. Noble as it is in purpose, the Freedomof Information Act, in addition to allowing Americans greater access to gov- ernment information, has permitted enemy agents to tap the same sources-to obtain critical files from CIA and FBI, at taxpayer expense! Leaks, official and unofficial, together with statements by disaffected former members of the intelligence commu- nity, have gone unpunished. The result is that Allied intelli- gence services are losing confidence that we can keep a se- cret. One old intelligence hand has observed that the Ameri- can news media conduct the only unrestricted intelligence operation in the country-they are protected by the First Amendment. Self-imposed administrative restrictions and judicial in- terpretation of U.S. laws have further hampered operations essential to the security of the nation. Recognizing that in- formation is power in this dangerous world, there is an in- creasing ?.I demand to unshackle our intelligence agencies. MEET THE CHALLENGE Is it too late? Only time can answer that question. But we had best be started. We must have intelligence services that can meet the challenge of the Soviets and their surrogates. Intelligence must be responsive to national security and not be paralyzed by the fantasies of civil libertarians. An obvious necessity for survival is to help our friends and thwart our enemies. We can take a long step in that direction by removing from the intelligence agencies those unwarranted fetters which were put in place by Congress and the Administration. _ Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 ARTICLE APPEAR TAC HUMAN EVENTS 1 March 1980 IflsidCMshIilgtOfl Grave Defects in New Intelligence Charter Hard-headed intelligence analysts are less than happy with the National Intelligence Act of 1980, recently introduced with much fanfare by Sen. Walter Huddleston (D.-Ky.) and co-sponsored by Senators Birch Bayh (D.-Ind.), Charles McC. Mathias (R.-Md.) and Barry Goldwater (R: Ariz.). .Despite Goldwater's backing, these specialists, say the Huddleston intelligence charter-appar ently being surreptitiously pushed by Vice Presi- dent Walter Mondale ark i his man on the National Security Council staff, David Aaron-is, in the words of one expert, "badly written, badly con- structed and confused. In fact, it would place into law many of the existing restrictions and would go even further than current regulations." Called the National Intelligence. Act of .1980, this charter could, for instance, require a CIA agent overseas to obtain a U.S. court order before placing a tap on an American, even though that individual was likely to be meeting with foreign enemies of the United States. Because the court order would have to contain certain information which, if disclosed to an outsider,. would almost. certainly expose the agent, many specialists feel the taps would never:be initiated. The charter would also place severe restric- tions on even physical surveillance of Ameri- can subjects', 'and would prevent the CIA' from working with. U.S.. students. or even There has been'much'discussion iri* recent- years about the inhibitions on covert operations im- posed by the . Hughes-Ryan amendment. Under that amendment, as Prof. Roy Godson points out in an excellent booklet called "The- CIA and the J American Ethic,".'which':'he. co-authored with"- Ernest Lefever, no fewer than eight committees of Congress are to be informed about "covert opera- tions.". This, in practice; means about 30 senators and 25 staffers. And under the rules . of . both houses, any individual member who wants to know about such operations can have access to the information as well. In short, virtually any covert action is likely to be blown through leaks. As Godson. writes, "Un- der these circumstances, almost all former senior CIA officials concerned with clandestine activities maintain covert action has become a thing of the past." While the new Huddleston charter reduces the number of committees that would have to be in- formed-from eight to-just the House and Senate intelligence panels-the legislation also makes a l new requirement: the CIA must give prior notice to the Congress of covert action. Yet "prior' no- tice," it is said, could have, just as "chilling" an effect on covert operations as the current report- ing requirements. Indeed, it is believed that the liberals put in the "prior notice" requirement in the hope that the more leftish legislators in Congress will be able to squelch any significant covert actions before they even enter an embryonic stage. Aside from these perceived defects, intelligence analysts are concerned that the Huddleston bill of- fers little protection against the public exposure of an officer or agent in the field. While the CIA's Chief of Station in Athens, Greece, Richard Welch, was murdered after his CIA affiliation was exposed through an American publication called CounterSpy, the Huddleston bill barely addresses the problem and poses no real threat to those engaged in exposing undercover CIA employes. In referring to the Huddleston legislation, God- son, who also edited a recently released publica- tion on intelligence put out by the highly respected National Strategy Information, Center, told HUMAN EVENTS: "This bill was written- primarily by a closed group of congressional staffers in cooperation : wifh*the Administration and the American Civil Liberties Union. It focuses in too large-a'part on the concerns of those who-believe this country has had an excess of intelligence. Unfortunately, like the Foreign Intelligence Surveillance Act of 1978, it has been endorsed by a leading conservative who has not yet awakened to the hard facts of our cur- rent vulnerability. Instead, we need to look coldly and dispassionately at the threats and challenges facing us and to decide upon the kind of intelli- gence we need to maintain our freedom." Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 INDIANAPOLIS NEWS (IN) 18 February 1980 ions, acessar'll CIA 2r;(fC- _'f The Cent, zaL ntelligence Agency avoid that, but we would have the should be allowed to makg"t':Ceeptions" latitude to make exceptions." to its general policy against using the-.'..:._ - He also said the Soviet Union's inva- paid services of newsmen or university.,'.,. sion of Afghanistan has put the Rus- professors, according to agency direN-.: sians. on the-propaganda defensive for -tor Stansfield Turner:, the first time in decades: Turner made .the-comment -at a;::- Turner said, ".. for the first time private luncheon preceding a speech ._ since World War II, the Soviet Union is Saturday to a gathering sponsored` by really on the defensive about something Sen. Birch Bayh, D-Ind., and a munber they have done. of veterans' and, other military-service - "They- got away with the Berlin related organizations.: - - :,;. Blockade, they got away with Hungary, Bayh chairs the Senate's Select Co m-, they got away with Czechoslovakia, but mittee on Intelligence.-- this time they bit off something differ- Turner said an exceptional situation ent. I don't think: they anticipated how arose-when the U.S. Embass personnel difficult it was going to be for them, the in Iran were taken hostage. '; amount-of resistance they have encoun- "I have-a regulation not to -use or tered from. the freedom fighters inside pay academics or newsmen. ?We-keep Afghanistan and more particularly, it both of these two professions out of the ? seems they underestimated the Ameri- intelligence process under. normal cir- cumstances. But here we were in a- -~ situation where a newsman ? might be. able to find us something that. would be of great help to the hostages: - - "You would riot want me. not to be able to pay his ticket to Iran?". He did not say the CIA had or had not done so. "What we will set up," Turner said; "is guidance that generally- we'll not .use a newsman. or_academic if we can can and world opposition to this act. "They are internationally on the de-- fensive with respect to the many Mos- lem nations of the world. One of the; reasons they may have underestimated. is they have a closed society. Perhaps, they don't understand as well what the. rest of the world is thinking and saying. "We have such international commu- nications you just can't get away with some of the things the Soviets triedi without someone- perceiving what is. happening. "So this time, the Soviets have runi into a much more difficult- time than they ever had before. How they are; going to a itricate? themselves is going; to be a fascinating development of, international affairs over the months ..and years to come." _ _ Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 STOCKHELL/SNEPP/KISSINGER Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 ARTICLE APPEARED CN PAGI?; .- The Supreme Legislature Is the Supreme Court a court or a super- legislature? Many think of it as an automatic vending machine; put in a quarter, press the button, and out tumbles a decision, like a bottle of Coke. The machinery was invented, according to this theory, by the Founding Fathers 200 years ago. It shocks some people to think of the court as a place of uncertain- ty, where there is constitutional give and take. Ronald Reagan attacked the court last month over a supposed ruling on federal funds for Medicaid abortions. "This time the court's majority has gone too far!"he cried. "Its -unprecedented grasp for power over the federal treasury must be blocked-" He said thecourt needed a new m4jority and that he would supply it. THE NEW REPUBLIC 15 March 1980 Snepp, requiring him to "disgorge" his profits ($115,000 so far) from his book Decent Interval. He disregarded the written pledge of all CIA workers not to publish "any information" without submitting it for prior review. He wrote an angry account of the last hours on the US embassy roof in Saigon in 1975. The Justice Department does not claim that he violated secrets, but that Snepp failed to submit his manuscript in advance to the CIA. Now a case from another agency is on its way up. The Supreme Court can make Washington a different city if it widens its precedent. It's different in London. Once, while in service there, I dialed a government office for a harmless statistic that I needed, just as I would have done in Washington. You proceed in Washing- ton on the assumption that some- where, in some agency, some little man knows just the fact that you want, and is bubbling over to give it to you on the phone. In London a shocked upper-class voice registered astonishment at my presumption and ultimately promised to send me a "chit" which, of course, never arrived. There is a ferocious libel law in England, and a sweeping Official Secrets Act. It is questionable whether Water- gate could have been exposed in England. It is one of the most surprising differences I know in the usually com- prehensible parallelisms of the two common-law countries. Let me come back to the Supreme Court. If you don't think of it as a policy- making body, study these decisions. One ended racial school segregation, when Congress and president hesitated. Another took prayers out of public Actual) the court hadn't made a schools. The Court instituted one-man- button was pushed and a papal bull popped out: a handy device indeed in an uncertain democracy, if not abused. It has been abused. In 1932 the court was "in the , grip of a sterile and outmoded laissez-faire economic phi- losophy" says Martin Shapiro, Univer- sity of California. It tried to excom- municate the New Deal; it failed; it surrendered in 1937. The court has been in general accord with lay authorities since then. Shapiro thinks of the high court as a "super legislature" that can change the direction of public policy in vital particulars. He gives an example. The Warren Court, dominated by Roosevelt appointees, declared the con- stitutional right of citizens to equality in many fields such as voting and birth control. It seemed headed toward similar expansion in housing, education, sub- sistence, and so on. The Burger Court checked the drive abruptly in 1973. The key case involved a wealthy San Antonio school district that was able to maintain a lower local tax rate and yet spend far more per student than poor districts. Was this fair? The system is universal iii the United States. Rich kids get better public schools than poor kids because their parents are wealthy. A plaintiff named Rodriguez brought suit. If upheld, Rodriguez would have been as famous as the Brown v. Board of Education decision that ended school segregation in 1954. Two state supreme courts had already declared against the San Antonio system. But the Burger Court said no, 'i five to four, and the system remains. The majority: the four Nixon appointees . (Burger, Powell, Blackmun, Rehnquist) with justice Stewart concurring. The minority: the egalitarian veterans of the Warren Court-justices Marshall, Douglas, White, and Brennan. That's the way the high court legislates. This does not mean that the Burger Court is necessarily conservative: on the : contrary, in various fields (abortion, for example) it can shock Ronald Reagan. But justices exercise considerable discre- tion. "There is no reason not to say openly what the justices care so little to disguise," explains Professor Shapiro. "They make their decisions on the basis of seat-of-the-pants predictions of the immediate and direct policy benefits of the various alternatives available to them." Few people want to believe this. They prefer the vending-machine illusion. It is to be hoped that the high court doesn't extend the Snepp gag rule all over Washington. Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 J ruling at all; it had just agreed to a one-vote reapportionment, ending an hearing on the subject later; Reagan was abuse. in which some rotten boroughs shooting from the hip again. (A famous had 18 times the ratio of votes to earlier case was in September 1975 representatives as others. It shook up when he proposed turning welfare, food the criminal justice system, guarantee- stamps, education, health, and other ing accused persons the right to a functions amounting to a total of $90 lawyer. It loosened federal and state billion-a quarter of the budget-back obscenity laws (for better or worse), to the states. Later he said enemies had producing the present controversial era "distorted" his proposal.) of permissiveness. And it opened up the The tattle-tale book The Brethren right of birth control and abortion continues on the best-seller list because services to millions of low-income people are fascinated with behind-the- women and girls. scenes tales of these nine black-robed The Constitution does not say in black justices in their marble palace, palaver- and white that the public must wait 25 ing and bargaining. There are too many years to see Henry Kissinger's tran- "leaks" in Washington, the justices seem scripts of his telephone conversations to have decided, perhaps smarting from while he was secretary of state. Con- their own experience in the book. They ? gress passed a freedom of information have imposed, six to three without oral act that might be interpreted as giving argument, an unexpectedly harsh penal- immediate access to them. But the court ty against former CIA agent Frank last week said no. The vending machine Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 ARTICLE , r; ^_t - D ON PA1G vo THE CHICAGO TRIBUNE 11 March 1980 The Kissinger . files The Supreme Court, which only weeks ago was so imaginative in finding a way to punish an ex-CIA agent accused of mishandling information he obtained in the course of his employment, suddenly lost its boldness when it came to a dis- pute concerning the papers of Henry Kissinger. Granted, the cases were in some ways dissimilar. The one involving ex-spy Frank Snepp concerned his publication, without prior clearance by the Central Intelligence Agency as required by an agreement he signed, of a memoir of .the final days in Saigon before the North Vietnamese victory. The one involving Mr. Kissinger raised the question whether individuals could use the Freedom of Information [F.OI] Act to get copies.of summaries of telephone conversations Mr. Kissinger made while he was assistant to the President for national security affairs and later secretary of state. But in both cases the court was asked to create law protecting the public inter- est in the way ex-government employes treat information they gain in the course of employment. In both, Congress had failed to authorize clearly the kind of protection the plaintiffs sought. In the case of the ex-spy, the court willingly- and witlfout so much as the courtesy of oral argument-created a law Congress had not seen fit'to enact. It ordered `Qr. Snepp to surrender to the government. every penny his book earned in royalties. In the case of IVIr. Kissinger, the court took Congress at its word-in its narrow- est possible definition. Mr. Kissinger, as he left the State Department, moved from his office to the New York estate of Nelson Rockefel- ler documents containing summaries of his phone conversations (which had been prepared from transcripts made by secretaries who listened in on the line or tape recorded the words}. Later, he deeded these documents to the custody of the Library of Congress, which like all congressional affiliates, is exempt from the FOI requirements Congress saw fit' to impose upon the executive branch. A number of people called on the State Department under the FOI Act to make the documents public. The court ruled that even if Mr. Kissinger removed the; documents illegally and even if the State. Department had a legal right to those] files, it could not be compelled under the-, Fol Act to recover them and make pub-] lit those that were not appropriately left confidential under the act's exemptions concerning classified information an d other matters. The reason given by Jus- tice William Rehnquist for the five-man majority was that Congress had not em- powered federal courts to issue such an order. This reversed a lower court opinion that found judicial authority in the courts' traditional powers of "equity."I But in the Snepp Case, the Supreme j Court. used the same sort of "equity"' power to seize back the ex-spy's royal-I ties. And it 'did so with scant concern for the First Amendment issues the dis- pute raised. When the Snepp Case was announced, commentators condemned its result, and the way in which the Supreme Courti reached it. They criticized the court for going out of its way to write new law int the absence of legislation. Now, some of i the same commentators are criticizing; the court's failure of creativity in the, Kissinger case. We have no quarrel with government efforts to stop ex-spies from disclosing' the government's most highly classified i secrets. And we support the greatest possible freedom of access to unclassi- fied material-which is the purpose the F0I Act serves. But the Supreme Court should defer to the people elected to write the laws. Thej court was right to hew closely to Con-i gress' expressed intentions in the Kis- I . singer case. And the fact that when it came to a less exalted ex-employe the court was willing to overstep its bounds and act like a legislature does not re- i fleet badly upon this principle of judicial restraint. It reflects badly only upon the Supreme Court Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 ARTICLE AFPE_A.RED ON PAGE r " G This has not been a good winter for Americans who believe in the free flow .of ia'ormation and an informed public as the most fundamental safeguards of democracy. The Supreme Court, the .Central Intelligence Agency and President Carter's war scare have combined to bring back secrecy- that .hardy perennial of arrogant govern- ment. First, in one of its least defensible .decisions, the Burger Court ruled that Frank Snepp had violated a valid se. crecy agreement In publishing- with- out C.I.A. approval - a book about the disgraceful performance of the agency -during the last days of the South Viet. namese Government in Saigon. As a consequence, the Court ordered him to ;pay over to the Government every cent - about 512D,00D - earned by the book, "Decent Interval," together with all future earnings.' The Government did not accuse Mr. Snepp of disclosing classified informa- tion or damaging the national securi- ty. At issue, ostensibly, was nothing but the validity of the secrecy agree- ment the C.I.A. made him sign when ;he went to work there, and which the Court held to override his First Amendment rights. But the real Issue was whether Mr. Snepp, who had been rebuffed by the C.I.A. in trying to re? port his story through official Chan- nels, had the right to inform the public about the deficiencies of an agency paid for by taxpayers and operated suoposedly in their interests. the Burger- Court held that he had no such right, and the stiff penalty it imposed on him guarantees that, in fu- ture, whistle-blowers will be unlikely to take their stories to the public as openly and in such convincing detail as he did. Already, the agency Is trying to -apply the decision to John Stockwell, who wrote "In Search of Enemies," detailing agency bungling in Angola. The Snepp ruling will also encourage other agencies with claims on national security information - say, the State .and Defense Departments- to use and THE NEW YORK TIMES 11 March 1980 Following the Iranian and Afghan crises, meanwhile, a new war spirit! has been flaring in the country, owing. much to Mr. Carter's hard-breathing response and his calls for draft regis traticn and increased military spend ing. Seizing the moment, the C.I.A.'! has been seeking to reverse numerous restrictions it brought on itself with its free-wheeling activities. Among other things, the agency wants virtually total exemption from the Freedom of Information Act. Under the pending bill, all :ts opera- tional and technical files would be un- touchable; illegal activities probably could be concealed; Inquiries about documents could be rejected out oft hand, without anyone-even thecourts - having the right to Inspect them t see if the withholding was proper. Yet, the C.I.A. already has the power, under present law, to withhold legitimately classified information] from Freedom of Information de- mands. That is apparently not enough. to satisfy the agency, for several dubi-i pus reasons. One is that, at present,-if .the C.I.A.I withholds a document, a Federal ccurti can review the document to jee if thei decision was a proper defense of a le., gitimate secret. Another is the agen cy's ritual insistence on protecting its! "sources and methods" - which: sounds fine except that it's a grab-bag; term under which can be lumped al-j most anything that the C.I.A. wants to cover up. Agency officials also say they need to be able to persuade ford eign intelligence services that infor. matron they share can be kept secret) by the C.I.A. No doubt that's so, but', the present authority to protect classt. fed information ought to be sufficient. The C.I.A.'s more likely reason, and: one the public should beware, Is its oft-! stated desire to be "unleashed." It'si easier, after all, to destabilize a gov-~ ernment, wage a secret war or try to make Fidel Castro's beard fall out if 1 you can operate in secrecy and under the pious label of national security. .:j! IN THE NATION By Tom Wicker enforce secrecy oaths. That may not only limit the freedom of many more Government employees to speak out; it could even discourage bold and inde- pendent persons from entering Gov- ernment service at the price of such a restriction on what would otherwise be, their constitutional rights. On the heels of that decision, the Burger Court also ruled that requests and suits under the Freedom of Infor- mation Act could not apply to steno. graphic notes of Henry Kissinger's telephone calls as Secretary of State. The reason was not any special se. curity value attached to the notes, but that Mr. Kissinger had removed them from State Department custody before any demands for them were made. Hence, the Court held, the State De- partment had no means of responding to Freedom of Information requests for these official -and certainly valu- able-Government records. It does not take a cynical veteran of Washington ways to predict the cone. quence. Officials in possession of docu- ments they do not want made public will simply find means to remove them from official custody, as Secre? tary Kissinger did. This sharp limita- tion on the reach of the Freedom of In- formation Act can hardly result In anything but further concealment of the public's business from the public. Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 THE NEW YORK TIMES 11 March 1980 Why' Decision in' SneppCase Disturbs. Publishers By RICHARD EDER A minority of the court -Justices John Paul Stevens, Thurgood Marshall and William J. Brennan Jr. - sup. HE recent Supreme Court deci-' ported the Snepp defense argument a+ : -a son curtailing the right of for-, that th . e ct d not reasonably mer Government employees to} cover more than classified material, write about their experiences) and that to extend it fu-t- m b ht e . fig a has left publishers and- constitutiopal; violation of the First Amendment. lawyers seriously disturbed; it has left The majority, however. said that M: Frank Snepp both gagged and broke. Snepp's failure to get clearance was All professions have their powerful i~ the kind of action that could cause thel mysteries: medicine has psychiatry, United States "irreparable harm and' journalism has unattributable sources, loss" and was in violation of his con-1 News Analysis and the legal profession: tract. It ordered the trust remedy on has injunctions and equity; the grounds that a new trial for specific) jurisprudence. -When the) damages could risk exposure of confi-I Supreme Court rdecidedl dential Government affairs - even; three weeks ago that Mr. though the Government had accepted; Snepp had violated his the less sweeping Circuit Court trial contract with the Central Intelligence order. Agency, his former employer, by pub- $120,000 Held in Escrow fishing his account of the last days of I For publishers, the court decision, the United States presence in-Vietnam. without clearing it with the agency, it i raises serious questions about the free-! applied a punishment not out of law but! dom to write and publish; enunciating,! as it does, a concept of breach of trust; equity: and left him tied up with an in.;; . junction in boot that could theoretically bind all kinds; The court did not grant Mr. Snepp's: request to be heard in appeal. Instead, it issued an opinion?caftflrming, in of-: fect, an original Federal District Court ' judgment against him two years ago. It, permanently enjoined him from circu-1 lating any of his writing arising from; of former public or even private em- ployees who wanted to write about'; their experiences. For lawyers,- apart from these First Amendment issues, it raises questions about the temper and procedures of the present Supreme Court. For Mr. Snepp, the concern is ! his years in the C.I.A., unless it was more urgent and odder. first cleared by the agency. It went on! The $120,000 that he has earned from to punish his failure to clear his book,) his book is tied up in an escrow account i "Decent Interval," with something; dat a ecision local by- the bank. CoBarring an urt to rehear ely the i considerably beyond the normal legal case, it must be paid to the Govern-', fora breach of contract. Such a, medcane Circuit Court of Appeals,. would have been an order for a new lower-court trial. to determine dam- ages. i Background of Other Books - Instead, the Supreme Court applied a! punishment based on equity jurispru dence. More than simply breaching ai contract, it held, Mr. Snepp had! breached a position of trust - even) though classified material was not held) to be at stake. Therefore, he must pay! to the Government not a specific sum toil be determined, but all present and fu- ture profits from "Decent Interval." The Government's prosecution o Mr. Snepp was taken against a back- ground of numerous other books that former agents have published or argil seeking to publish. It sought to estab-j lisp the C.IA.'s widespread right ofl clearance on all material, classified not. It cited as specific justification the contract that all its agents must sign; more generally, it argued that an intel- ligence agency must be sole judge ofd whether material would be damaging. j steadily for the last two years and has; virtually completed two other manu- scripts: a novel about the C.I.A. and the assassination of President Ken- nedy, and an account of his legalydiffI- culties. His publisher, Random Househas lent him $12,000 for living expenses, in expectation of being shown the manu- scripts. These were lying on the table in a borrowed apartment when Mr. Snepp was in town the other-day, but he can- not let Random House even see them, let alone publish them. The injunction requires Mr. Snepp to le't the C.I.A. see them first and make whatever dele. Lions it decides upon, before showing them to anyone else. Thus, Mr. Snepp cannot convert his debt into the ad- vance that his publisher would provide if it could look at his manuscripts. "I'm absolutely impoverished," said the author, who was the C.I.A.'s princi- pal analyst and briefer in Saigon before the evacuation at the end of the Viet- nam War. "I've spent the last two years writing; I couldn't go out and get a job because I was going to pay back Random House with the advances on the new books. Now the novel is ready and I can't even submit it. This must be the first novel in American history that is enjoinable in advance." Mr Snepp intends to submit his novel to the C.I.A. review apparatus in the next week or two. Because of the vigor with which the Government moved against his first book - it details the haste with which United States officials evacuated Saigon, making few provi- sions for vulnerable Vietnamese who had worked with the C.I.A. and other agencies - he doubts that it will be cleared without major deletions. The peculiarities in Mr. Snepp's situation are considerable. For one thing, his British publisher plans to send him on a promotional tour in Brit- ain when "Decent Interval" Is pub- lished there. "Assuming that the tour sells books, I'll really be working for the Government: they'll get my prof Its. But at least I'll be fed," he said, passing over the theoretical possibility that the C.I.A. would bill him for the price of his food. To the publishing world, the implica-, tiors of the Supreme Court opinion are ; highly disturbing. The freedom to read committee of the Association of Ameri- can Publishers Is expected to consider the matter when it meets later this month. It will have before it a lengthy memorandum by the association's gen- eral counsel, Henry R. Kaufman. "The entire opinion, from beginning to end, including several absolutely in-1 credible footnotes, is an unadulterated, disaster," Mr. Kaufman wrote. He. pointed out, among other things, that I the Supreme Court opinion, and its use' of the equity concept of "trust," could be used to penalize the writings of any former Government employee deemed to have violated confidences. "Furthermore," Mr. Kaufman said! in an interview, "the notion of the coo-; structive trust could allow the Govern- ment to get money from the publishers . as well." In the Snepp. case, the Gov ernment did not ask for Random House's profits, but it could have, In CONTINUED Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Alan Dershowitz, a Harvard Law School professor who specializes in First Amendment cases and who as- sisted in Mr. Snepp's defense, noted that the implications could go further., "Take Deep Throat, in the Woodward- Bernstein book," he said. "If he tomes out to be an official under fiduciary ob-1 ligation, which surely he was, then the authors and The Washington Post could) be sued for their profits." Editing Question Raised om ; At Ran Robert Bernstein, cal.ed the situation i '.very serious and very sad." Them have set up a censorship system. said are no rules of any kin& They have that an organization can censor its critic." "Further more, ' r.B a Bernstein in con -I tinued, "how do you manuscript isl posing the original gestcharges? sent cchang gee would have to go off to Washington, unless they had a C.I.A. man sitting in our office." Among constitutional lawyers, thei a 1 irrion by the court eerrablfe Stir. "I ampappalled, Prof. Thomas Emerson of Yale said. "I looks at it as a continuation of what they have been doing in other cases, but moving beyond them. They have been contract- it this as if it were a private one rnment thing to o imom' ttthiatkind of blanket ion its employees n Its eeis a kind of inhibition h action that is simply not governed by normal contract rules. it raises First Amendment toles about of the public n employee, and the sigh obtain information and the right of the press to publish it." House its president,; d 'It's a Loaded Gum' Professor Dershowitz and other law-i yers expressed concern not merely at the substantive results of the decision, but at the procedures used. Reflecting the dissent submitted by Justices Ste vens, Marshall and Brennan, they noted that the Court had decided grave constitutional matters without hearing arguments from the two sides; by sim-, ply deciding the question upon submis- sion of the writ of certiorari. "It's a loaded gun, " Professor Der showitz said of the decision. "It con- tains extraordinarily open and looses language. It comes from writing the decision without briefs. My God, when ; three members of the Court want to hear the briefs, doesn't simple courtesy call for arguments to be heard?" Noting that the Government had asked for less than the Court awarded, Mr. Dershowitzsaid: "It's the greatest example of over- reaching and lack of judicial restraint in our memory. None of us can think of any other example where the Govern- ment asked for a remedy and the Court: gave so much more. There was one ex- ample, in an antitrust suit, but then there was full argument by both sides." Both publishers and lawyers ex- pressed hope that Congress might be persuaded to limit the theoretical ef- fects of the Court ruling. Two pending pieces of legislation - the unified crime bill and a C.I.A. charter-were mentioned as areas where limiting lan- guage might be adopted. Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 PUBLISHERS WEEKLY 7 March 1980 Supreme Court Says Snepp Violated CIA Contracts I ;v a decision which threatens to se- restraint is the risk that the reviewing' 9 verely curtail disclosures of infor-I agency will misuse its authority to; mation by government employees, delay the publication of a critical work reme Court ruled February 19, or to persuade the author to modify the, Su th p e that Frank W. Snepp III had violatedi secrecy contracts with the CIA ands must forfeit earnings from his 1977; book, "Decent Interval." The six to three decision upheld the: lower court's ruling that Snepp had vio-I lated contractual obligations to the CIA; by not submitting his Random House; book to the agency for prepublication review. Proponents of greater govern- ment disclosure, who viewed this case' as a test of the right of federal emplpy-) ees to reveal unclassified information, saw the ruling as a setback for First Amendment guarantees. In stipulating that Snepp "disgorge' the benefits of his faithlessness" by re- turning his royalties to date from "De- cent Interval"-approximately $115,000' -the Supreme Court reversed the Court of Appeals judgment that Snepp should be allowed to retain his earnings. "Since the remedy is swift and sure, it is tailored to deter those who would! place sensitive information at risk," declared the unsigned majority opin ion. A dissenting opinion by Justice John Stevens, joined by Justices William Brennan and Thurgood Marshall, charged the Court with granting the government "unprecedented and dras- tic relief' by establishing the "con- structive trust" over Snepp's profits. The brief argued that such action "is not supported by statute, by the con- tract, or by the common law." Justice Stevens also criticized the Court for granting the government its petition for certiorari but not granting Snepp's. He wrote: "The majority obviously does, not. believe that Snepp's claims merit' this Court's consideration, for they are summarily dismissed in a footnote." The dissenting opinion expressed at fear that the Snepp ruling may lead toi restrictions upon "a citizen's right to criticize his government." Declared Justice Stevens: "Inherent in this priori contents of his work beyond the de-1 mands of secrecy." In a conversation with PW, Snepp pronounced the Court's action "an in- credible decision wrought without re- gard for due process." He said that in two years of litigation he was never! granted a jury trial and he criticized the: Supreme Court for not hearing oral ar- guments before making its ruling. He warned that the decision consti tutes "a green light for the government to aggressively pursue sanctions against other former employees and' against their publishers-even in the! absence of secrecy agreements. Pub-i lishers are now facing severe penalties for publishing information from gov- ernment employees. I wouldn't be sur- prised if the government decided to go after Random House," he said. He felt that the Court's treatment of his case as a contractual issue "misses the point" of the controversy. "These secrecy 'agreements are unlike agree- ments found in commercial law," he said. "They infringe upon the right of the American people to know." Snepp will be able to repay the $115,000 from an account into which his profits were placed at the time the Justice Department moved to impound them. Voicing alarm at the ruling, Random House president Robert L. Bernstein declared: "Even if secret information is not at issue and even if a secrecy agreement has not been signed, the Court has empowered the CIA, and has invited all other branches of Govern- ment, to filter and shape news and in- formation about itself by effectively muzzling with a 'fiduciary duty' those, employees and former employees who are in the best position to know of bun-i gling and wrongdoing-and to call at- tention to them in the public interest.!, Employees of the State and Defense; Departments, for example, the Com- merce and Agriculture Departments, and even employees of the Supreme Court itself can now be bound by this free-floating concept of censorship. "It is not too far-fetched to say that the decision in United States v. Frank Snepp sets us firmly on the road toward legal censorship throughout our coun- try and that it may be just a short step to extending this ruling to state and lo- cal governments. That the Court took this unprecedented action by an un- signed signed opinion without receiving a single brief on the merits, and without; allowing a single word of oral argu- ment, is simply mind-boggling." Reaction from the legal community ranged from disappointment at yet an- other defeat for a First Amendment is- sue to criticism of the Supreme Courtfor deciding the case on what are con- sidered narrow grounds. Norman Dorsen, professor at New York University's School of Law, de- creed the ruling "a potentially dan- gerous precedent which should be re-1 versed or allowed to quietly perish be- fore the government uses it to further Thomas 1. Emerson, professor of law emeritus at Yale Law School, agreed that the ruling imposes "serious limita- tions" on the ability of government em- ployees to disclose information. He found the most disturbing aspect of the ruling to be the Court's dismissal of the issue as "purely a disagreement over! private contract violation" rather than I a matter involving constitutional and; political questions. Further, he deemedI it "very unusual procedure" for three judges to join in dissent against the, manner in which the Court disposed of the case. "If enforced, this decision threatens, to shut up practically every govern- merit employee," Emerson remarked.; Though he was "not entirely clear" on the probable impact of ;he ruling on, publishers, he conjectured: "It's pos-' sible that a publisher could be held li-! able for conspiracy to violate a con tract, or for inducing a former govern-I merit employee to break a contract." Benno C. Schmidt, Jr., professor atl Columbia University Law School, told! PW: "Fairly substantial harm has been: done to First Amendment interests in this ruling. The liabilities involved inj publishing a book not submitted for re= view are so heavy that they will un-i doubtedly prevent much valuable ma- terial from reaching the public in book form." Schmidt added that the decision; does not strongly affect "leaks" of un-, classified material to the press. Ira Glasser, executive director of the; American Civil Liberties Union, which assisted in Snepp's defense, accused the Supreme Court of granting censor- ship powers to the government. "The: decision gives the government even! -C '44 W .L;, Id Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 more power to interfere with the First Amendment than it asked for. It estab lishes very substantially a censorship principle in the hands of the govern- ment," he declared. Attorney Melvin L. Wulf, whose client Philip Agee faced prosecution charges for his book "Inside the Com- pany: CIA Diary" (Stonehill), attacked; the decision as "a disaster for First Amendment interests." Wulf objected both to the procedural manner in which the ruling was carried out and to the re-i suiting "license for the government toi begin actions against others it consid ers disloyal." Wulf lambasted the order that Snepp; return his earnings as "outright steal ing." He accused the government of, hypocrisy in pursuing action against. "whistleblowers" such as Snepp,, Agee, Victor Marchetti (author of "The CIA and the Cult of In- telligence") and John Stockwell (au- thor of "In Search of Enemies"), but, not questioning the right of such former government officials as Henry Kiss- inger or Richard M. Nixon to publish their memoirs. "It's Easter Sunday for the CIA.. They're back in business with a ven- geance," he declared. "Authors and publishers will not only be reluctant to publish critical material; they're going) to be terrified." He described the Su- preme Court ruling as "completing the total resurrection of the CIA." STELLA DONG Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 A Ili 011 PAGE 2 r NEWSWEEK 17 March 1980 The CIA's Case Against Snepp MY TURN/GEORGE A. CARVER JR. 0 n February 19, the Supreme Court issued a 6.3 decision in Snepp Y. U.S, No. 78-1871 that generated a predictable firestorm of press criticism. (One New York Times columnist termed it "lawless," a sign of "disorder in the court.") Much of this impassioned criticism, however, has been flawed by factual error or a misunder- standing of the questions at issue. The case involves a formerCentral Intelli- gence Agency officer, Frank Snepp, who was stationed in Saigon at the time it fell and who subsequently wrote a book about Viet- nam entitled "Decent Interval." The gov- ernment took Mr. Snepp to court because he did not submit his manuscript to the CIA for security review prior to its publication- arguing that in so acting, Mr. Snepp violated the secrecy agreement he had signed in ini- tially accepting CIA employment, as a con- To have good dition of that employment. Mr. Snepp's basic defense, argued by the intelligence, our American Civil Liberties Union, was that nation must effectively his secrecy agreement did not apply bo- cause nothing in his book was "classified." itimate The Supreme Court ruled unambiguously protect le g in the government's favor, endorsing the intelligence secrets. government's contention that the question of whether or not "Decent Interval" con- tained any classified material was irrelevant in this action; that this was a breach-of contract case, not one raising First Amend- ment issues; and upholding a lower-court ruling that for breaching his contract, Mr. Snepp had to forfeit all earnings derived from his book. Appeals: The issues raised by this case are complex and important. Though not a law- yer, I have considerable familiarity with all sides ofall of them. From 1966 to 1973, I was special assistant for Vietnamese affairs to three successive directors of Central Intelli- gence,, for the following three years, I was deputy for national intelligence to two. In that latter capacity, I was a member of the CIA's highest appellate board (under the director), considering appeals on, among other things, recommended deletions in manuscripts submitted for prepublication review by current or former employees. I am now retired and on the other side of the fence, earning much of the money needed to support my family by writing. I have known Frank Snepp and his work for many years. We have often disagreed, but our disagreements have always been within a context of reciprocal professional respect and personal regard. He and the ACLU, in fact, had me subpoenaed-from overseas-as a defense witness in this case, and voluntarily bore the expense of my round-trip travel. Frank Snepp" cannot be legitimately faulted for writing or publish- ing "Decent Interval." His mistake lay in not submitting his manuscript for prepubli- cation review, as required by the secrecy agreement he had signed-voluntarily- since no one is obliged to work for the CIA. Despite mythology to the contrary, CIA prepublication security review of employ- ees' manuscripts is not "censorship" as that term is normally understood. As I know from my own experience on both sides of this fence, such review focuses on one thing only: the exposure of information that, in the agency's institutional opinion, needs to be kept classified to protect sensitive intelli- gence or intelligence sources and meth- ods-not on criticism, accuracy, personal opinions or anything else. As the government argued and the Su- preme Court ruled, whether or not any- thing in "Decent Interval" still required the protection of classification was irrelevant. I think several passages in it should have been considered classified, and would have so ruled had I been officially reviewing Mr. Snepp's manuscript; but since I did not review the manuscript officially, this is a strictly private, personal opinion. That, however, is precisely the central point here involved. No former agency employee, let alone any journalist, has any private right to determine what is or is not properly classified. The right to make that determi- nation is institutional, vested by statute in the United States Government. Ruling on classification is not censor. ship. Any claim that it is, or that our government's exercise of this legitimate, legally sanctioned right has a "chilling effect" on former government employees' exercise of their private rights of free ex- pression as protected under the First Amendment is hogwash-as I also know from my own experience. Since retiring last September, I have published several arti- cles, and signed a book contract. All my manuscripts have been or will be submitted for prepublication security review in com- pliance with the secrecy agreement which I freely signed (as did Frank Snepp). Honor- ing this obligation, however, has been no bar to remunerative productivity; nor, as anyone who reads my published prose will see, has it been any impediment to criticiz- ing the U.S. Government or its policies. We are unlikely to survive this strife- ridden and now thermonuclear era without good intelligence, and our nation cannot have good intelligence withouran effective ability to protect legitimate intelligence secrets. Prepublication screening of CIA employees' or former employees' manu- scripts-for this purpose--is essential; for legitimate secrets can hardly be protected if every employee or former employee as- sumes a private right to make declassi- fication determinations individually and unilaterally. Remedies: I would be more than pre- pared to go to the mat with the agency and the government and fight tooth and nail, in the courts if necessary, if I were ever to feel that any CIA prepublication review of my prose was being expanded beyond what I considered legitimate classification deter- minations into anything I considered ille- gitimate censorship. This has not hap- pened, however, and there are ample remedies available to me, as an American citizen, if it ever should. Even though I now earn a major portion of my living with my pen and typewriter, I applaud the Supreme Court's "Decent In- terval" decision. It was wise, sound, just- and necessary to protect me as an American citizen and to protect our country. George A. Carver Jr.. a retired CIA offi- cer, is currently a senior fellow at George- town University's Center for Strategic and International Studies Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 dY:'i~..I l JI1TICLE 0 PAGS__,~ .. _ TIME 17 1980 State Secrets How to keep them Federal officials intent on shielding rec- ords from journalists, biographers and other inquirers-'may have hit upon a very simple way: remove the files from the agency involved before anyone seeks ac- cess under the Freedom of Information Act (FOIA). In a case involving transcripts and summaries of telephone conversa- tions that Henry Kissinger recorded dur- ing his years in Government, the Supreme Court last week ruled 5 to 2 that the State Department had no obligation to retrieve those records for members of the public. Two lower courts had ruled against Kissinger. They said that the records of phone conversations he made while serv- ing as the President's National Security , Adviser should remain under wraps, but that those from his 3% years at State were within the reach of the FOIA. In Decem- ber 1976, shortly before he left office, Kis- singer donated these documents to the Li- brary of Congress (which is not covered by the FOIA) under a complex deed that limits access to them until the year 2001 at the earliest. Since Kissinger 's donation came before the FOIA requests were made by the Reporters Committee for Freedom of the Press and other groups, the Supreme Court concluded that State could not be said to be wrongfully "withholding" the documents. The proper remedy, said the majority, is the Federal Records Act, which allows agencies to seek retrieval of files they believe should not have been re- moved. State has not yet decided wheth- er to pursue Kissinger's records. As with last month's Snepp decision, which backed the CIA's right to enforce its secrecy pledge on former agents, the new ruling is likely to help Government keep a tighter lid on its secrets. ^ Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 ON PAGE - ~.~..... JUSTICE NEWSWEEK 17 March 1980 The Kissinger Transcripts Henry Kissinger was never a man to be bound by narrow conventions. For eight years, he made daily stenographic and tape transcripts of his telephone conversa- tions, which he and his foreign-policy staff used to keep track of official business. When it came time to retire as Gerald Ford's Secretary of State, he collected these phone records and had them delivered to the Hud- son River estate of his friend, Nelson Rocke- feller. There, among other things, tie docu- ments would be safely out of the reach of the Freedom of Information Act and the American public. Kissinger did not discuss this move with State officials; he just took the files. On Christmas Eve, 1976, however, Kissinger gave them back to the government on his own terms: the Library' of Congress accepted the papers with the understanding that he controlled access to them until he finished his memoirs and died. Last week, the U.S. Supreme Court sanctioned this maneuver, ruling that citizens have no right to get at government records once a public official spirits them away. The Court's 5-2 decision turned on whether the State Department improperly withheld copies of Kissinger's transcripts from groups of journalists and scholars who sought them under the 1966 Freedom of Information Act. The FOIA, designed to give Americans access to government files, presumes that except for very sensitive matters, citizens are entitled to the docu- ments they ask for. In effect, the Justices ruled that Kissinger had taken the papers outside the State Department's-and therefore the FOIA's-jurisdiction. "The agency has neither the custody nor control to enable it to withhold," Justice William Rehnquist wrote for the Court. Advisers: Then Rehnquist went further. Only the government has the right to seek to retrieve the papers from the Library of Congress, he declared. A private citizen may not use the information law to force a Federal agency to bring such a suit. This ruling overturned two lower courts that had ordered the records returned to the State Department. Besides the State De- partment records, some of the plaintiffs also sought Kissinger's transcripts from his four-and-one-half-year tenure as Richard Nixon's national-security adviser. At each level, the judges flatly rejected that request because the FOIA does not apply to close Presidential advisers. The two dissenters, Justices William Brennan Jr. and John Paul Stevens, argued that the Court's decision will badly erode the FOIA. Both contended that the FOIA should apply to documents which have been removed from an agency's custody or control. The Kissinger ruling, Stevens wrote, "creates an incentive for outgoing agency officials to remove potentially em- .Ae,(rcfns , cr, . -~tanl=a6e u/ l~~oet.':.rj. ce:.t.:?LO re...,.- ~ ~ t l .1 j r.. f t~ trrn +crap. ffl -t .. M~ QKe}ZA .1r.1 Mf.. ~???R/M? te,.e =^+r..-~. 4'~rr.. (Cet.rr re.~ err.ts, ~~?~=7 t scete barrassing documents from their files in order to frustrate future FOIA requests." He added that agencies that had a right to documents but failed to go after them could be presumed to be illicitly "shield[ing] them from scrutiny." Justices Harry Blackmun and Thurgood Marshall did not vote in the decision. Classified Information The Kissinger material is clearly sensitive. He argued that the transcripts were personal papers, and that he left behind summaries of any official. business discussed in phone conversations. In short, the State Department's records are complete. Not so, said a government archivist who reviewed a sample of the files. His conclusion: "The majority were State Department records and their substance was hardly reflected in the extracts." More- over, when Kissinger left, he signed an agreement that he was not taking any classi- fied information or other materials relating to the department's business. The Supreme Court decision will only encourage other efforts to diminish the FOIA. While lower courts for the most part have interpreted the act broadly, the Su- preme Court has reversed a number of these decisions. Just last week, the Justices ruled 7-2 that the Department of Health, Educa- tion and Welfare did not have to make public raw data from a medical-research study that was conducted by a private group funded by a Federal grant. In that decision, Rehnquist said that since the data from a study of oral drug treatment of diabetes was never given to HEW, it could not be considered an agency record subject to release under the information act. Both the CIA and the FBI are seeking Congressional authorization to withhold more information. At present, the law di- rects agencies to release records except in matters involving national security, active criminal investigations, trade secrets or invasions of privacy, among others. The CIA would like a broader provision to cover its operational files. The FBI wants a total exemption for any material relating to counter-intelligence, terrorism or organ- ized crime. "These people wouldn't be screaming so much if the act wasn't work- ing," says David Vladeck of the Freedom of Information Clearinghouse, a Washington watchdog group. Detente. Last week's decisions offer fur- ther insight into the Supreme Court's view of official secrecy. Recent decisions suggest that the Justices will side with the govern- ment's position as often as possible. In prac- tice, this means the Courtwill even makelaw when necessary, although the Justices will act as strict constructionists when it suits their purposes. With the Burger Court and theCarterAdministrationnow seemingly in tandem on these matters, only Congress can move to protect the shrinking interests of the public in this new era of detente between branches of government that theoretically are supposed to check each other. ARIC PRESS with DIANE CAMPER in Washington Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 ARTICLE APPEARED 0:,1 PAGE: 3 7r 9 March 1980 By Aaron Epstein Ei1~'S WOT WCLSH1NGTON - Once again, sel crecy is on the rise in Washington. - The 13-year-old Freedom of Inforr mation Act, intended to open the; processes of government to ,public examination. is under multiple asll saults in Congress. Several agencies, particularly they justice. Department and the CIA. i, routinely delay requests for informa-; tion made under that law for months, often years. Now, in the last few weeks, the U.S. Supreme Court has put its stamp of approval on three ways that the gov- ernment can place vital information beyond the reach of journalists, his torians, scientists, public-interest groups and the rest of the people. As a result of the court's actions, the government can lawfully: ? Deter disclosure by requiring an employe in a national security job to , sign a contract binding him to secre- cy for life. If he later writes an unau- thorized book about his job, he can i, be forced to surrender all profits -; even if the book disclosed no classi- fied information whatsoever (Snepp V. U.S-). ? Transfer sensitive documents to the Library of Congress or some other place not covered. by the Free. 'dom of Information Act (Kissinger v-! Reporters. Committee for Freedom of I the Press). ? Keep the information in the hands of a private organization under contract with the government. It can remain secret, even though the private group is paid millions in tax dollars and compiles data. that. criti- cally influence significant public policy (Forsham v. Harris) "The Supreme Court has consis. tently screwed. up the Freedom of Information Act, said American Civil Liberties Union lawyer Mark H: Lynch. an expert on the act "There have been, around 10 Supreme Court decisions on the act and virtually all' of them... are attempts to shrink the. act ..' Fortunately; Lynch said; the conri rulings deal with statutes and not thel Constitution. so "Congress can ? al- ways straighten things out if it wants In the first of the court's 1980 rul- ings on secrecy, former CIA agent ordered to d was Frank W. Snepp 3 forfeit all profits - $125,000 so far -` on his book, "Decent Interval," .which criticized CIA activities ini South Vietnam- but. contained no i confidential data. Still, the court said, Snapp bad vio- fated an employment contract in which he promised that he would write nothing about the CIA "with-' out specific prior approval of thei agency." That, said the court, was a ; breach of trust for which he must pay the "swift and sure" penalty of giving up all "the benefits of his faithlessness." The court did not weigh the public benefits of the revelations in Snepp's ; book, which was published in 1977. Nor did it. consider the fact that Snepp's employment contract men- tjotied no penalty for breach, much Jess a penalty so severe. - - Now, however, a drastic penalty has been sanctioned by the nation's highest court and will become, as Justice John -Paul Stevens wrote in dissent, "a species. of prior restraint on a citizen's right to criticize his! government." - I Already, the CIA has filed suit for all the profits from the work of a second former agent,. John R. Stock- well His book. "In Search of Enemies - A CIA Story," accused the agency!, of mounting covert military opera-i tions in Angola and then lying to the public to keep them secret. I Now that public support for the CIA. and the FBI is apparentlyreviving.1 both-agencies are urging Congress toy give them broader exemptions from4 requests for documents under the? Freedom of. Information Act - i ;,.The Kissinger ruling, deliveredi last week, presented a different se-1 Crecy problem. ' ? While Kissinger he- was, the top -foreign-affairs policy-maker from January 1969 to January 1977, his secretaries kept records of his tele- phone conversations From tape.sandl stenographic notes, detailed summa- ries and some verbatim transcripts of -Kissinger's conversations were prepared. Taken together, these documents unquestionably contain information vital to an understand- ing of the foreign-policy decisions of the Nixon and Ford presidencies. While still secretary of state, Kis- ! singer moved the documents from I the State Department to the New York estate of the late Nelson Rocke. feller, then gave them to the Library of Congress under a deed that bars public access for at least 25 years. ' { The notes were sought by report- ers, historians and political scien-, fists. The Supreme Court denied, them access because the documents, were no longer in the possession of the State Department. which is sub- ject to the Freedom of Information Act. but in the hands of the Library of Congress, which is exempt. The court sidestepped the question of whether the telephone notes be-' longed to Kissinger or to the govern- ment. It simply decided that there was nothing improper about the ; State Department having given up; possession of the documents before! the request for them was filed. "If FOIA (Freedom of Information I Act) is to be more than a dead letter," Justice William J. Brennan Jr. wrote in dissent, "it must necessarily incor- porate some restraint upon the agen- cy's powers. to move documents be- i yond the reach of the FOIA request- " er. He-urged Congress to require exec-. utive agencies to ? keep important records likely to be in demand by the public. The Snepp and Kissinger decisions were publicized widely. But Lynch and other authorities on government secrecy believe that the third ruling i may have the broadest impact of all. That case focused on the relation-I ship between the federal govern-, ment and private enterprise paid by ` tax dollars to do research, write l government pamphlets and give. advice on an astonishing array of public policy issues. Should information ? collected by j; illy Ut;ll Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 private enterprise in the service ofi the government be hidden from us? 1 That critical question arose whet', medical scientists sought the raw data collected by the private Univer- sity Group . Diabetes ' gam (UGDP) under federal Mats total' ing?StS million. over an eight-year period, the UGDP tested 1,000diabetics eat geWith fivC treatment programs millions of documents. The UGDP then suggested that two drugs used in diabetes treatment, tolbutamide and phenformin hydrochloride, in- creased the risk of heart disease- As a result, federal officials sought to get warning labels an the drugs, and suspended the use of pbenformin. The validity of the study was chal- lenged by scientists and a bitter dis- pute erupted. But a Freedom of Infor- mation Act request for the data was spurned by the Supreme Court. Narrowly interpreting the act. Jus- tice William Rehnquist concluded that the raw data were not "agency records," sub*t to public access - r although they were. collected with under public,contract I and produced important public health decisions. Rehnquist's analysis centered on the technical question of who owns the documents. But to Brennan, writ' tag in dissent. the appropriate ques- tion was a broad one. What is the value of the document to the people? "Government by secrecy is no less destructive of democracy if it is car- ried on within agencies or within iI private organizations serving agen- cies," Brennan wrote. Advocates of government secrecy can only be 'encouraged by these recent court decisions to expand the exemptions in the Freedom of Infor- mation Act. The CIA and the FBI are not alone in this effort. Corporations, for instance, are supporting legisla- tion to require the Federal Trade Commission to keep secret such cur- rently available information as safe- ty tests on-consumer products, cvrpo- rate pricing policies, executive Pay and benefits, and profit and, loss statements. Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 MINNESOTA DAILY 28 February 1980 Snepps non-secrets In cases involving a conflict between the gpvernment .:i and an individual, the Burger court usually sides with the government. The most recent casualty of this prac- Lice is former CIA employee FrankSnepp. But all gov- ernment employees who might ever want to publish a book or speak to a reporter may suffer from the fallout of the court's execrable ruling on Snepp's case. Snepp, you may recall, published a book called "Decent-Interval," criticizing the conduct of the Amer- ican intelligence community duringthe fall of Saigon. When he joined the agency Snepp was required to sign a promise that he would.not publish anything about th -CIA without first submitting the manuscript for review. Fearing the agency might delay publication or suppres his book, Snepp chose not to turn it over for approval. The CIA responded by suing Snepp for breach of con- tract. The government did not claim that Snepp had used any classified information. In fact, he had taken great care not to disclose classified information. But Snepp did not fare well in court. A district court held that he had broken a legal contract and ordered him to pay the government all the earnings from his book. An appeals court agreed, but held that to collect damages the government would have to prove to a jury that Snepp had intentionally deceived government officials into thinking that he would abide by his'promise. Last week, theSupreme Court notified.Snepp that,it would not hear the case. Incredibly, the court-with- out hearing oral arguments-went on to say that Snepp had violated a "fiduciary obligation'." In other words. - though Snepp had not used classified informationthe court concluded that Snepp's access to sensitive, and -confidential materials put him in:a position of trust and he violated that trust. The court held that Snepp,must turn over the $125,000 in royalties his, book earned.. Re- quiring the government to-return to court to prove to a jury that,Snepp had violated a contract; the court argued, would not provide-a "reliable'deterrent" to fur This action was without precedent in Supreme Court history, in the views of dissenting justices John Paul Stevens, Thurgood Marshall and William Brennan. Even if Snepp had submitted his work, Stevens' opinion; pointed out, the government's authority to censor the j book would have been limited to classified material. And since Snepp did not include classified material, the book would have been published unaltered anyway. The court majority acted in clearviolation of their own 1 procedures by penalizing Snepp for violating a law that doesn't exist. Snepp may be guilty of violating some kind of contract with his employer, but he did not vio- late a "fiduciary obligation" such as he might have done had he released classified information. In fact; Congress still has not passed a law penalizing the dis- closure of classified information. The situation remains unchanged from six years ago when former CIA direc- tor William Colby testified that there was "no statutory authority" to go to court against some former agents turned authors. I el CI It: T. UUIL haw Ill w Iuu151'a$ W. vv , a ,.a. f..-----fir... -- separation of powers, furthering its efforts to protect government institutions at the expense of the press, sus pects, defendants and other individuals. Some observ- ers have warned that the court's decision opens the way for a major increase in government secrecy. The decision may affect thousands of government employ-;, ees who routinely sign secrecy oaths as a condition of employment. It was only a decade ago that the Supreme Court, over the objections of the Nixon administration, decided to permit the publication of the Pentagon Papers, citing First Amendment rights and the fact that Congress had not acted to formulate a remedy. Last week, the court denied Frank Snepp the right to argue his case on a sen- sitive issue involving an agency that has trespassed in- dividual rights for decades, and then voted to penalize him.. Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 THE LONDON GUARDIAN 22 February 1980 looks at c is on unauthorise b~oks From Alex Brummer in Washington The Central '.Intelligence A;lancy is looking at the possi- bility of further court action against people' who- write un- authorised books about its acti- vity.. The , move :.follows I the Supreme Court's' ruling this week that the 'US Government can severely restrict the re- lease of information with x bearing.on national security by employees, or former. employees. The court had rdered that. a former CIA agent. Frank the possibility of further Snepp, should pay to the Gov- actions against authors cf ernment the 5150.000 in royal- books about the CIA. n f hi b k i h d rom s oo o e ma t es e The. Supreme Court's deci- the CIA,. Decent Interval. The court contended that Snepp sion has been criticised in the e of e its had broken his 'contract' of sera press sweeping here a because ecauswhi which f the recy with the CIA when he e uld mean that t em w r x e o wrote the book. even though books, such as Dr Kissinger's much its material was un? memoirs, The White - House classified. Years, might in future have to The Justice Department has be scrutinised by Government already moved to take similar censors before being released. action against a former CIA agent. Philip Agee. who has The Washington Post said in written two controversial works ? its leading article that " by about the CIA's operations. The failing. to discuss seriously the Government is now looking at First Amendment implications of such a review process, the court opened the possibility that review by contract can be imposed in almost any area of I government.' The First Amendment guarantees the, freedom of the press and the freedom of :expression. There was some relief in newspaper circles yesterday, however, that Senator Daniel! Moynihan had decided to with- draw from his bill, governing the intelligence agencies, the section that would have made it a criminal act for the press to disclose the names of intelli- gence agents. Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 NEWSDAY (GARDEN CITY, N. Y.) 22 February 1980 'the 4) n strain Censors an the J 90 The Constitution says Congress "shall make no law abridging the freedom of speech." But the Supreme Court has just' decided that you can still sign away your) own First Amendment rights. ~ Employees of the Central Intelligence Agency, for example, have routinely been required to sign an agreement not to pub-- lish "any information" about the agency! without getting its approval first. But when former CIA employee Frank; Snepp wrote a book called "Decent Inter-i oval," which was critical of the agency's' performance- in Vietnam, he refused toj submit it for censorship. Now the Su- preme Court has accepted the CIA's con-i tention that Snepp made an enforceable, contract and has ordered him to forfeit his royalties to the government. The issue here is not simply the pro- tection. of official secrets. The government prosecutors have never contended that Snepp's book contained any. The question is whether it's necessary for the CIA to impose an extraordinary restriction on al, Amendment right when adequate penalties already exist for those found guilty of revealing classified material. Three justices who- dissented from the majority opinion -found the penalties' against, Snepp "highly inappropriate and perhaps even beyond this court's jurisdic- tion." Perhaps -when. Congress finally passes a CIA charter,. it can find away to restrain- the - censors in the executive branch even if the judicial branch will not. Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 AFGHANISTAN Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Oil orted eld 1*11 Kah-L-11' Friends, business ssociates sav rug merchant' was arrested Feb. 23!! By Ben Barber Special to The Globe A carpet merchant from Cambridge who reportedly vanished recently in Kabul, Afghanistan, is being held by Russian or Afghan autl}prities, according to friends and business associates. , Rug dealer Charles Brockunier was arrested Feb. 23, according to acquaintances of his who were interviewed in Cambridge yesterday. State Department officials have, begun secretive efforts to secure his release, sources said. A business associate of Brockunier's said he had re- cently spoken by telephone with friends in Afghanistan who confirmed to him "positively" that Brockunier had been arrested, though it was not known in which jail he was being held. Brockunier, a 41-year-old Harvard graduate and for- mer history teacher, was drawn to the turbulent Asian country by his concern for Afghan friends and a desire to purchase carpets for his Cambridge shop before national- ization might cut off access to rug markets, they said. Brockunier is part owner of the Turkoman Balouch Rugs shop on Arrow street Brockunier's mother, Barbara Brockunier of Cam- bridge, has been contacted by the State Department, but she said yesterday she had been asked not to comment on what efforts were being made to free her son. The, tall, red-bearded Brockunier left Cambridge in late January, telling a friend that he intended to travel by bus among the people, as had been his custom since he first visited Afghanistan in 1972. He had traveled there ,every two or three months. for the past three years to supply his shop with carpets. The last trip previous to this one was made in November, before the Soviet inva- sion but during the troubled pro-Moscow regime of Hafi- zullah Amin, who was killed when the Soviets invaded in late December. One person associated with' the rug shop, who asked not to be identified, said Brockunier intended to buy up to $20,000 worth of the colorful brown. and red hand- knotted carpets to replace stock sold during Christmas. Don Meier, an employee at the shop and a personal friend of Brockunier, said he had received reports from sources in London that the merchant.was seized at his hotel following participation in a street demonstration THE BOSTON GLOBE 12 March 1980 "which he may have been forced to join." Brockunier had been staying at Kabul's Khorason Ho- tel for nearly a month, unable to leave the capital be- i cause of travel restrictions and political and military un- rest. "Even Mike Malinowsky, who was serving as a con- sular-officer in Kabul, warned Charles not to go, saying he didn't want any additional Americans over in Kabul to worry about and be responsible for," said his partner. Brockunier was described as a history teacher who fell in love with the living history of feudal Afghanistan. "He liked the kind of life over there - the bargaining over cups of tea. Over here he was a lonely person." "I think his sense of adventure just got him in trou- ble," said a friend of Brockunier's. "He isn't political - he just wanted to see what was going on." "He's been very lucky," Pergola said, visiting Af- ghanistan every two months or so for the last year and a half. State Department spokesman Ron Lorton said yester- day that Brockunier had been reported to American offi- cials only as missing in Kabul. "We have yet to get any information from Afghan a'u- thorities about him," said Lorton. "I'm not going to'get. into a discussion of this case with someone from the press at this stage." Lorton deelined to say who had re- ported Brockunier missing. . - Last month, during general strikes in Kabul in which many persons were arrested and killed, the Afghan gov- ernment announced that among those incarcerated we're' several Pakistanis and an American identified as Robert ., Lee. The Afghans accused Lee of being a CIA agent and warned that he could be tried on espionage charges. United Press International yesterday ouoted an 'American businessman arriving in New. Delhi from Ka- bul as.saying he had witnessed the arrest of an American and several Pakistanis. The businessman idetified the American as a rug__ealer from Boston_and_said._he_wicas arrested for taking photo a hs_ This raised the possibility that Brockunier, upon his arrest, had offered up the name of Robert L as, but the State Department denied this. "Brockunier is' not Robert Lee to my knowledge." Lorton said. "I have heard this theory before, but we do not believe they are the same person." _ ? , Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 Approved For Release 2009/06/05: CIA-RDP05T00644R000501360003-7 THE NEW YORK DAILY NEWS 12 March 1980 an r s report trappin -.g 11 Soviet tank c blumn; -100 iel Islamabad, Pakistan (UPI}-An Af- ghan rebel spokesman said yesterday that insurgents trapped a Soviet ar- mored column in- the eastern Afghan province..of:._Paktia and killed more than 100 Russiam soldiers in . a_ two- day battle,, The Islamic,! rebels` also'i:eported an attack on Soviet and Afghan government forces in and around the strategic city of Jaialabad on the main highway between the capital of Kabul, 89 miles to the east, and the-Khyber Pass frontier with Pakir star.' By attacking the Soviet and Afghan.j forces in and-around the town, the rebels cut between Soviet-troops deployed in offensives in the provinces of Kunar to the north and Paktia to the south.. There.was no independent verification, of rebel claims, but United States intelli- gence sources did confirm that heavy fighting was continuing in the region. Soviets extend of enslve-c.,