SENATE RESOLUTION 400 SUBSTITUTE TO BE OFFERED BY SENATOR CANNON FOR A NUMBER OF INFLUENTIAL SENATORS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP79M00062A000100120002-5
• Release Decision: RIPPUB
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• Document Page Count: 38
• Document Creation Date: December 16, 2016
• Document Release Date: September 27, 2004
• Sequence Number: 2
• Content Type: OUTLINE

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SENATE RESOLUTION 400
SUBSTITUTE TO BE OFFERED BY
SENATOR CANNON FOR A NUMBER
OF INFLUENTIAL SENATORS
Title of Committee: Select Committee on Intelligence Activities
Membership: Total of 19
2 Senators (1 majority, 1 minority) from
each of Appropriations,-Armed Services,
Foreign Relations and Judiciary Committees
9 Senators appointed at large
(5 majority, 4 minority)
Majority and minority leaders are ex-officio
members
Individual Term: Nine years continuous service
Jurisdiction:
Authority:
All other Government intelligence activities,
including those of DoD, State, Justice and
Treasury
Legislative
Budgetary Authorization
General Oversight
Exclusive Jurisdiction: Exclusive legislative jurisdiction of
CIA and DCI
Shared legislative jurisdiction of other
intelligence activities (other committees
can request a 30-day referral)
Exclusive budgetary authorization
jurisdiction of all Government intelligence
activities
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Disclosure to Public: Committee may disclose any information
in its possession provided the President
does not object within 5 days. If the
President objects, a majority of the
Committee may refer the issue to the full
Senate.
Unauthorized Disclosures'. No classified information in possession of
the Select Committee concerning lawful
intelligence activities shall be disclosed
to any person except in accordance with
committee procedures or in a closed session
of the Senate. It is the duty of the
Select Committee on Standards and Conduct
to investigate any alleged disclosure of
intelligence information.
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KEY INTELLIGENCE OVERSIGHT ISSUES
Beyond what the Senate believes is important in restructuring
oversight with respect to the DCI/CIA and the foreign intelligence
community, we believe that there are two vitally important.
issues bearing directly upon the continuing success of the Nation's
foreign intelligence effort. They concern enhancing the probability of
protecting those truly vital secrets involving operational details and
sources and methods used in foreign intelligence and the management
of the Nation's foreign intelligence effort as an integrated whole from
the perspective of direction within the Executive Branch and oversight
within the Congress. The lead proposal raises serious questions
with regard to both of these concerns..
Proliferation of Sensitive Information
a. The resolution does not provide for the exclusivity or
concentration of oversight which would assure that exposure
to such sensitive matters would be limited to the minimum
number of members or committees who should be able to
exercise effective oversight. The proposal actually grants the
committee exclusive oversight only in the areas of proposed
legislation, including authorization, which affects the CIA
and the DCI. (Even in authorization the Senate Budget
Committee is involved. Section 4(c).) Under Section
3(c) any other committee may assert its right of access
to the most sensitive operational details and sources and
methods if it directly relates to any other matter within that
committee's jurisdiction. This is precisely the grounds
on which 11 committees in this Congress have asserted
their right of access to sensitive matters. In addition,
for other elements of the intelligence community, the
proposed committee only exercises concurrent jurisdiction
and these elements are often inextricably involved in some
of the most sensitive aspects of intelligence operations,
sources and methods. Thus, the committes exercising this
concurrent jurisdiction will be likewise exposed to these
matters.
b. Moreover, the Committee itself having 19 members
and an objective of turning over one-third of the membership
every two years in the near future, together with unplanned
vacancies will result in service on the committee and exposure
to these especially sensitive matters for about one-third of the
Senate within a relatively few years.
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c. The specific public annual authorization requirement
which appears to be imposed by Section. 3(a)(4) read in
conjunction with Section 12 will provide our foreign
adversaries with valuable insight into the nature of those sensitive
aspects of the Nation's foreign intelligence budgets which
presently are not publicly disclosed. This will occur
particularly with respect to analysis by them of
year to year fluctuations and of the legislative
processing of the authorization bill and the
appropriations bill which will logically follow.
The inevitable process of informed committee
reports and enlightened debate in both Houses
on original bills and conference reports increases
the likelihood of proliferation of sensitive information
to an untold level. The President has already expressed
his concern on a one-time publication of the intelligence
community budget. Directors of Central Intelligence
who are charged with the responsibility to protect
intelligence sources and methods from unauthorized
disclosure by law have protested such action.. Finally,
both Houses of Congress have recently voted down
propositions requiring public disclosure. Alternative means are
available for legislative oversight bodies to influence the
size and content of intelligence programs without comprising
their secrecy. Also, there is the question whether a Senate
resolution can bind the House of Representatives to an
authorization requirement in light of the existing permanent
authorization in Section 8 of the CIA Act of 1949. Unless
the House acts on the authorization bill, it is assumed
it would be out of order for the Senate to act on appropriations
for CIA, for example.
d. While Section 4(b) recognizes indirectly that
the names of individuals engaged in intelligence activities
for the United States or the sources of information
should be protected from public disclosure there is no
mention of the equally sensitive matter of intelligence "methods".
e. Section 8 of the Resolution which is not even
proposed as a change in the Senate Rules vests in the
Select Committee the right to disclose publicly the
most sensitive operational information provided to
the committee in contravention of statutory provisions
which direct the Director of Central Intelligence to
protect intelligence sources and methods from unauthorized
disclosure. At a minimum it would appear that such
a decision by one branch of Government would be
exercised onl:T through the joint action of both Houses
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but preferably should be a matter for resolution by the
third branch of Government in the event of a dispute
between the Executive and Legislative Branches.
f. Under Section 4 of the Resolution, the
Committee is authorized to call to the attention
of any other committee of the Senate any matter
which the committee determines requires such
attention. Such a procedure runs counter to
the need for concentrated oversight in the interest
of enhancing the prospects of protecting truly
vital foreign intelligence secrets
g. In light of the analysis of the Resolution
in the previous paragraphs, it is clear beyond a
doubt that the Resolution perpetuates and fosters
extensive proliferation of truly vital intelligence
secrets among an almost unlimited number of
Senate committees, their members and their staff.
As a consequence, whatever security rules and oaths
are deemed appropriate for the proposed committee
should be likewise extended to apply to these other
committees, which presumably can only be accomplished
by an amendment to the Rules of the Senate.
Fractionation of Oversight - The National Security Act of 1947
places on the Director of Central Intelligence the responsibility for
correlating and evaluating intelligence relating to the national security
and providing for appropriate dissemination of such intelligence within
the Government using where appropriate existing agencies and facilities.
It also places other responsibilities on the Director for performing
"services of common concern... and other functions and duties related
to intelligence affecting the national security as the National Security
Council may... direct. " Since 1961 succeeding Presidents of the United
States have attempted to strengthen and reinforce these responsibilities
of the Director within what has come to be known as the "intelligence
community. " The most recent of these directives was issued by
President Ford in Executive Order 11905, on 19 February 1976. That
Order delineates the Director's responsibilities with respect to the
intelligence community and establishes mechanisms such as the
Committee on Foreign Intelligence and the Operations Advisory Group
to assist the Director in the exercise of this responsibility. The lead
proposal would tend to thwart these efforts to strengthen the Director's
responsibilities with respect to the intelligence community by fractionating
legislative oversight over the various departments and agencies which
make up the intelligence community. The proposal asserts jurisdiction
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over these agencies (enumerated in Section 3(a)(4) but also asserts
duplicative jurisdiction on the part of other committees of the
Senate on matters "otherwise within the jurisdiction of such
committee(s). " Thus the proposal would establish concurrent
jurisdiction over certain important elements of the intelligence
community between the select committee and other Senate
committees. Such an arrangement can only have an adverse affect
on the capability of the DC I to effect central management throughout
the foreign intelligence community.
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CENTRAL INTELLIGENCE AGENCY
WASHINGTON, D.C. 20505
April 24, 1976
Honorable Howard W. Cannon, Chairman
Committee on Rules and Administration
United States Senate
Washington, D.C. 20510
It is my understanding that consideration is being given in the Rules
Committee to amending S. Res. 400 to delete those provisions requiring
annual authorizations and related legislative authority. While I am strongly
in favor of eliminating the annual authorization requirement, the net result
of the amended Resolution will be the creation of an additional standing
committee to exercise general oversight of our foreign intelligence agencies.
While the manner in which the Senate chooses to exercise oversight of intel-
ligence agencies is for the Senate to determine, I feel compelled to express
my concern regarding any plan which would broaden access to sensitive
operational information.
During my 31 March testimony before the Committee, I stressed that
the intelligence community, particularly CIA, has been confronted with
a disturbing proliferation of congressional oversight responsibility. The
Armed Services and Appropriations Committees have traditionally exercised
oversight of CIA. During the 94th Congress, the Senate Foreign Relations
and House International Relations Committees (pursuant to Section 662 of
the Foreign Assistance Act) and the two select committees have been briefed
on sensitive CIA operations. The Senate Budget Committee has recently
established an intelligence unit and begun requesting access to sensitive
information. In addition, 11 other congressional committees and subcommittees
have requested access to sensitive Agency operational information during
the past year. With this background, you will understand my reluctance to
have still another committee added to the rolls of those with some oversight
responsibility.
I share the President's view stated in his 18 February message to
Congress that the nation's foreign intelligence effort would be best served by
centralizing the responsibility for oversight of our foreign intelligence
community. As the President stated, "The more committees and subcommittees
dealing with highly sensitive secrets, the greater the risks of disclosure."
Such concentrated jurisdiction would give one committee an. overall, rather
than parochial, view of the intelligence community.
- - ~ - T?ps _i9Tra o
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Mr. Chairman, it is not my wish or intent to limit Congress' access
to substantive intelligence on foreign developments. I want Congress to
be a consumer of intelligence. However, I believe the trend toward wide
proliferation of information on Agency operations must be reversed, rather
than fueled, if Congress and the Executive branch are to work together
constructively in the intelligence field, and if sensitive operational informa-
tion is to be reasonably protected from unauthorized disclosure.
Sincerely,
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MEMORANDUM FOR:
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5.75 IOI EDITIONSIOUS
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WASHINGTON. D.C. 20505
Honorable John L. McClellan, Chairman
Committee on Appropriations
United States Senate
Washington, D.C. 20510
The Senate Select Committee recently voted to bring before the full
Senate the question of whether to publicly release the budget totals of the
intelligence agencies. I am writing to express my opposition to such dis-
closures. I agree fully with the President, who stated in an April 21 letter
to Senator Church: "It is my belief that the net effect of such a disclosure
could adversely affect our foreign intelligence efforts and therefore would
not be in the public interest. " Past Directors have taken this same position.
I believe the disclosure of intelligence budgets would provide adver-
saries with significant insight into the nature, scope, and direction of our
national foreign intelligence programs, particularly were the figures to be
released on an annual basis, as recommended by the Select Committee.
Budget totals, when correlated with other information, will enable our
adversaries to make more accurate conclusions about major Intelligence
Community programs. This would aid them in thwarting our efforts to
collect important information. The U.S. Government would benefit consider-
ably from access to this same information regarding Soviet intelligence efforts.
In addition, once overall intelligence agency budget figures are made
public, I believe it will be impossible to prevent the disclosure of budget
details. Definitional questions about where "intelligence" expenditures
stop and operational expenditures begin would lead to open discussion of
sensitive intelligence programs and techniques. The history of the dis-
closure of the Atomic Energy Commission budget illustrates the futility of
attempting to stop the disclosure at a single figure. Coverage of the AEC
weapons budget evolved from a one-line entry in 1949 to a fifteen-page
breakout of weapons program, operating costs, and weapons facilities project
costs in 1974.
It has been suggested that withholding intelligence budget figures
is unconstitutional. The Select Committee report argues that Article I,
Section 9, Clause 7 of the Constitution requires that intelligence budgets
be publicly revealed. This Clause reads:
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" ...There. are cases where the most useful intelligence may
be obtained, if the persons possessing it can be relieved from.
apprehensions.. of discovery., Those., apprehensions will operate on
those persons. whether they are actuated: by mercenary or friendly
motives,*-, and- there doubtless are many of both descriptions who
would, rely on the secrecy of the President who would not confide
in that- of the Senate,: and. still less in, that of a. large popular assembly
The. convention have done well,, therefore, in so disposing of the power
of making treaties that although the. President must, in forming them,
act. by the advice and consent of the Senate, yet he will be able to
manage the business: of intelligence; in such a manner as prudence
may suggest. (The Federalist) - -
7. Until recent times, Presidents have conducted their foreign intelligence
responsibilities largely through the instrumentality of confidential agents- It
was recognized at an early date that some form of secret funding had to be
devised to guarantee the confidentiality of these intelligence operations. The
Statement and Account Clause of the Constitution was not deemed an obstacle
to this endeavor by its authors. In response to President Washington's first
annual message, the. Congress provided for the so-called "contingent fund."
Therefore,_ almost from the foundation of the. government under the Constitution.
there has, been, a fund which, the President could account for- "by making a
certificate._..of the- amount of such expenditure,, as he may think it advisable
not to specify; and every such certificate shall be. deemed a sufficient voucher
for, the...sums:, therein expressed to have been. expended." (Stat. at Large, I,.
299.) This fund was used by successive Presidents for their foreign intelligence-
gathering efforts So general was. the idea. than this fund was designed for-
secrecy that it has often. been called the "secret. service fund," and. indeed the
element of secrecy entered. into one of the first agencies of Washington's
administration, the dispatch of David Humphreys to Lisbon in 1790.
8. Perhaps the most. succinct statement concerning the purpose of the
secret fund was made by John Forsyth during a Congressional debate in 1831
on a treaty between the United, States and Turkey:
"The experience of the Confederation having shown the necessity
of secret confidential agencies in. foreign countries,. very early in the
progress. of the Federal Government, a fund was set apart, to be expanded
at the discretion of the President of the United States on his responsibility
only, called the contingent fund of foreign intercourse. ...It was given.
for all purposes to which a secret service fund. should or could be
applied for the public benefit.. For spies, if the gentlemen pleases;
for persons sent publicly and secretly to search for important information,
political, or commercial; ...for agents to feel the pulse of foreign
Governments.... " (Cong. Debates, 21 Cong. 2 Sess. , VII, 295.)
[For a comprehensive survey of the use of confidential agents, especially intelli-
gence-gathering agents, by successive Presidents from Washington to Franklin
Roosevelt, and the provisions made for their secret funding, see Wriston,
Executive Agents in American Foreign Relations 1929]
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9. From time to time Presidents have had to protect the confidentiality
of their foreign intelligence efforts and the funding processes which supported
these efforts. In 1844, the Senate inquired of President Tyler concerning the
activities- in England of one Duff Green.. The President delayed until the,
agent's mission was complete and. replied to the Senate, declaring-.
1"... [A] lthough the- contingent fund for foreign intercourse
has for all time been placed. at the disposal of the President, to be
expended for the purposes contemplated by the fund without any
requisition upon him. for a disclosure of the names of persons employed
by him, the objects of their employment, or the amount paid to any
particular person, and although such disclosures might in many
cases disappoint the objects contemplated by the appropriation of
that fund, yet in this particular instance I feel no desire to withhold
the fact that Mr. Duff Green.. was employed by the Executive to collect
such. information, from private or other sources, as was deemed.
important to assist the Executive in. undertaking a negotiation then
contemplated, but afterwards abandoned." (Richardson, Messages
and Papers, IV, 328.)
In another- incident, the House of Representatives requested President Polk
to furnish. the House- with. an account of all payments made on the President's
certificate from the contingent fund. during certain preceding administrations.
President. Polk, in a carefully considered message of 20 April 1846 declined.. to
furnish the data requested.. The President stated:
"The. expenditures of this confidential character,. it is
believed, were never before sought to be made public, and I should.
grea apprehend the consequences of establishing a precedent
which would render such disclosures here ter inevitable. " emphasis
added)
In other words, Polk was arguing that even the partial release of past figures
relating to the. contingent fund would lead inexorably to the erosion of the
fund's secrecy. The same can. be said today with respect to the funding of the
nation's foreign intelligence programs.
10. President Polk continued, and his statement makes a good conclusion
for this note:
"The experience of every nation on earth has demonstrated
that emergencies may arise in. which it becomes absolutely necessary
for the public safety or the- public good to make expenditures the
very object of which would be defeated by publicity .... Some governments
have very large amounts at their disposal, and have made vastly greater
expenditures than. the small amounts which have from time to time been
accounted. for on President's certificates. In no nation is the application
of such sums ever made public. In time of war, or impending danger the
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situation of the country may make it necessary to employ individuals
for the purpose of obtaining information or rendering other important
services who could never be prevailed upon to act if they entertained
the least apprehension that their names or their agency would. in any
.contingency be divulged. So it may often become necessary to incur
an expenditure for- an object highly useful to the country; for example,
the conclusion of a treaty with a barbarian power whose customs require
on such occasions the use of presents. But this object might be
altogether defeated by the intrigues of other powers if our purposes
were to be made known by the exhibition. of the original papers and
vouchers to the accounting officers of the Treasury. It would be easy
to specify other cases other cases (sic) which may occur in the
history of a great nation, in its intercourse with other nations, wherein.
it: might become absolutely necessary to incur expenditures for objects
which could never be accomplished if it were suspected in advance that
the items of expenditure and the agencies employed would be made
public." 4 Richardson, Messages and Papers of Presidents, 431, 435
(April. 20 , 1846)
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Material Concerning the Need for Budget Secrecy
A. Letter from Director of Central Intelligence to Chairman, Senate
Committee on Appropriations, dated 10 May 1976, on open intelligence
budgets
B . Letter from President Ford to Chairman, Senate Select Committee on
Intelligence, dated 21, April 1976, concerning- public release of
intelligence budget figures
C . The Legal Basis for the Special Funding Authorities Established
Under Title 50, Section 403f and 403j, in Furtherance of the
Central Intelligence Agency Mission and Functions
D . Historical Note on the Secrecy of Foreign Intelligence-Gathering
Activities and Their Confidential Funding
E. Material concerning intelligence budget secrecy from House
Committee on Appropriations Report on Fiscal 1976 Department
of Defense Appropriations Bill
F . Positions of past Directors Colby and Schlesinger
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The Legal Basis for the Special Funding
Authorities Established Under Title 50, Sections 403f
and 403j ,in Furtherance of the Central Intelligence
Agency Mission and Functions
1. The secrecy that is inherently necessary to insure the success
of intelligence-gathering programs must be paralleled by secrecy in the
funding of these programs. Without secrecy in funding there is no chance
that the secrecy of the programs themselves can be maintained: knowing
the direction and volume of money flow within the intelligence community
can be every bit as revealing as knowing the commitment of manpower or
hardware to a particular program. The Executive and the Legislative
branches have carefully preserved and jointly controlled throughout our
history the ability to make allocations of resources without revealing either
the magnitude or the ends of the allocation. The use of these procedures
has varied at different times, but the right to use them has never been
extinguished. Congress sought to preserve budgetary secrecy in structuring
our modern national intelligence efforts.
50 U . S . C . 403f states, through section (a), that:
In the performance of its functions, the Central
Intelligence Agency is authorized--
(a) Transfer to and receive from other Government
agencies such sums as may be approved by the Bureau
of the Budget, for the performance of any of the functions
or activities authorized under sections 403 and 405 of this
title, and any other Government agency is authorized to
transfer to or receive from the Agency such sums without
regard to any provisions of law limiting or prohibiting
transfers between appropriations. Sums transferred to
the Agency in accordance with this paragraph may be
expended for the purposes and under the authority of
sections 403a - 403j of this title without regard to limitations
of appropriations from which transferred.
This provision permits funds to be made available for CIA expenditure
without having first been publicly identified either in part or in aggregate
as CIA funds, as would be the case in the normal appropriation process.
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"No Money shall be drawn from the Treasury, but in
Consequence of Appropriations, made by Law; and a
regular Statement and Account of the Receipts and
Expenditures of all public Money shall be published
from time to time."
Of course, the constitutionality of the present practice can only be determined
by a court, and no court has reached this question. I believe, however,
that the present practice is in accord with the Constitution. I would note
also that there is historical precedent for the secrecy of certain funds and
that similar provision is made for special funds of other departments and
agencies. Furthermore, it has been publicly stated in the Congress that
all funds appropriated for CIA and intelligence activities of the Department
of Defense are in the Defense Appropriations Act. In doing so, Congress
has exercised its discretion to make public a total defense figure, which
includes closely-related intelligence costs without releasing a separate
intelligence figure.
Of even greater concern to me is the possibility that, in its
consideration of the various proposals for future congressional oversight
of intelligence agencies, the Senate might fragment budgetary authorization
among several committees of the Congress. As you know, Section 8 of the
Central Intelligence Agency Act of 1949 provided permanent budgetary
authorization for the Central Intelligence Agency. Annual Authorization for
the military intelligence organizations (which comprise approximately 85
percent of the total intelligence community budget) is under the jurisdiction
of the Armed Services Committees. I do not believe a Senate resolution
should be promulgated which would be contrary to the Central Intelligence
Agency Act. In any event, I feel strongly that fragmentation of the intelligence
community budget among several committees of the Congress would create confusion
and would hamper, if not render impossible, the exercise of the responsibilities
of the Director of Central Intelligence over the intelligence community in
furtherance of statute and Executive Order 11905.
I urgently request your consideration of these matters in connection
with the upcoming discussions of the Senate's oversight of the intelligence
community.
Sincerely,
George Bush
Director
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Historical Note on the. Secrecy of Foreign Intelligence-Gathering Activities
and. Their Confidential Funding
1. Intelligence gathering depends upon secrecy and confidentiality for
success.. General Washington. stated this self-evident proposition in a letter to.
one of his-intelligence officers,. Elias Dayton, on 26 July 1777:
"The necessity of procuring good Intelligence is apparent.
and need not be further urged---AU that remains for me to add,.
is,. that you keep the whole matter as secret as possible. For upon
Secrecy, Success depends in most Enterprises of the kind, and for
want. of it, they are generally defeated.....
The secrecy which must attend intelligence-gathering operations themselves
must apply also to processes of funding these operations.. This dual requirement
for confidentiality and, budgetary secrecy in intelligence matters was recognized
and accommodated early in our nation's history.
2.. The nation's first foreign intelligence- efforts were conducted by a
subordinate body of. the: Congress and, it was this body which first wrestled
with the- problems of confidentiality and budgetary secrecy.. In the early stages
of the Revolution the Continental Congress exercised control over foreign affairs..
On 29 November. 1775, the Congress created the Committee of. Secret Correspondence
to "correspond with our friends in Great. Britain, Ireland and other parts of the
world, " and Congress agreed "to defray all such expenses as may arise by
carrying. on such correspondence, and for the payment: of such agents- as they may
send on this service.." (Jol. Cant-. Cong. , III, 392.) In. carrying:. out its foreign
relations responsibilities., the Committee met its need for foreign intelligence.
information by secretly employing overseas agents. For example, one of the-
Committee's first. acts was to write Arthur Leek a well-connected American living
in. England. The Committee wrote (12 December 1775):
"It would. be agreeable to Congress to know the disposition
of foreign powers toward us, and we hope this object will engage
your attention. We need not hint that great circumspection and
impenetrable secrecy are necessary. The Congress rely on your
zeal and. ability to serve them, and will readily compensate you for
whatever trouble and expense compliance with their desire may
occasion. We remit you for the present *200." (emphasis added)
(Wharton, The Revolutionary Diplomatic Correspondence of the
United States, II, 63-64 (1889)] .
The Committee employed many such secret intelligence agents,, including
Charles Dumas, Silas Deane, Thomas Story and Jonathan Austin, and was
able to obtain much useful information on foreign developments and attitudes
from these sources.
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3. Even though the Committee was a creature and. subordinate of the
Congress, it found itself in, the position of insisting upon the secrecy and
confidentiality of its operations as against. Congress as a whole. Responsible
as they were for conducting secret activities. and protecting personal
confidences, the Committee members recognized. the. elementary principle
that the more widely a secret is held, the. more poorly it. is kept- The
Committee's reluctance to disseminate sensitive information to Congress as
a whole is all, the more noteworthy An-light of the strict injunction of secrecy
under which Congress operated.. (On 9 November 1775 the Continental Congress
adopted. the "Resolution of Secrecy" under which any member who disclosed
a. matter which the majority had determined should be kept secret was to be
expelled "and. deemed an enemy to the liberties of America..") On one occasion,
for example-, the Committee- kept. the contents of. important. despatches. secret
from Congress.. Speaking of a despatch from Arthur. Lee,. the Committee said:
"Considering the nature and importance of it,.. we agree
in opinion, that it is our indispensable. duty to keep it a secret,
even from Congress.... We find, b fatal experience, the Congress
consists of too many members to kee secrets.." (emphasis added)
orce,.. American Archives, Fifth. .Series, 11,'818.)
)
4. The Committee's. insistence upon secrecy was not limited to the
fruits of their intelligence activities. but extended to operational matters. as.
well.. When on 10 May 1776 the Committee was called upon to "lay their pro-
ceedings- beforeCongress, " it was authorized to withhold "the names of
persons they have employed or-with whom they have corresponded." (Jol..
Cont. Cong--. IV, 345.) Fi.nally,, matters pertaining to the. funding and instructions
of intelligence agents were closely held by the Committee: and were not subject
to plenary- review by the. Congress. .. [See- Wriston,. Executive Agents in American
Foreign Relations, 3-15, (1929)]_.
5. As a general *rule,. the subordinate bodies created by the Continental
Congress had very little independent power. The exception to this was the
Committee of Secret Correspondence which came. to exercise broad powers in
its foreign intelligence-gathering mission. The Committee's circumspection.
with its sensitive information is instructive today. It demonstrates that the
principled, but practical, men who founded the Republic were willing to take.
those measures necessary to ensure the success of their foreign intelligence
efforts, even where this meant controlling access to information within Congress
itself .
6.. With the adoption of the Constitution, the executive power passed to
the. President and with it the principal responsibility for the conduct of foreign
relations. Commenting on this new distribution of power, John Jay, whose
diplomatic experience in the service of Congress during the Revolution and the
Confederation had given him insight into the weaknesses and requirements of
American practice, discussed the problems of conducting secret foreign intelligence
gathering:
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THE WHITE HOUSE
April 21, 1976
Dear Mr. Chairman:
It is my understanding that the Select Committee expects
to publish in its final report the budget figure for the
Intelligence Community.
It is my belief that the net effect of such a disclosure
could adversely affect our foreign intelligence efforts
and therefore would not be in the public interest.
Over the past two years both Houses of Congress have
voted by overwhelming margins against the disclosure
of information concerning our foreign intelligence budget.
I believe that these votes reflect the judgment of the
Congress, which I also hold, that such disclosure over a
period of time would reveal information helpful to our
foreign adversaries.
Director of Central Intelligence George Bush has briefed
your Committee on the harm to United States foreign
intelligence agencies that could result from publication
of this budget information. He is available for further
discussion of this issue with the Committee members.
I urge the Committee to reconsider its position. In
assuring that our foreign intelligence agencies are held
accountable to the public, we must not undermine their
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capability to provide the foreign intelligence needed by
me and other elected and appointed officials in order to
meet our constitutional responsibilities.
Sincerely,
The Honorable Frank Church
Chairman
Select Committee to Study
Governmental Operations with
Respect to Intelligence Activities
United States Senate
Washington, D. C. 20510
cc: The Honorable John. Tower
Vice Chairman
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Former Director Schlesinger and present Director Colby are quoted
as having stated they would have no objection to the publication of a total
figure of the intelligence community budget. This statement takes out of
context the specific statements made by Schlesinger and Colby..
Schlesinger
In his confirmation hearings as Secretary of Defense on 18 June 1973,
Schlesinger clarified his position by saying, "I think that it might be an
acceptable procedure, Senator, to indicate the total figure of the national
intelligence programs.. I would not personally advocate it, but it may be an
acceptable procedure.. I think, as you well know, that. this has been discussed
not only with the Armed Services Committees. in the two Houses but also with
the Appropriation Committees. There: is the feeling' that it might be wise to
give the gross figure- I. have- come to share that feeling at least in this time
frame but that does not say that it is not a possibility." " _ _,I would lean.
against. it.. But I think. that it could be done. The problem that you. get into,
you see,. as you well know, Senator, is that it would be a freefloating figure,
unsupported and. unsupportable in public, with. nobody except the members
of the Oversight Committees or members of the Armed Services. Committee
and Appropriation Committees who would know the details. Those are circum-
stances which under certain conditions would elicit the strong tendency fox-
a. flat 10 percent,. 20 percent, 30 percent, 100 percent, cut in intelligence
activities because there. is an identifiable target with no broad understanding
of what the components are and it is that aspect that concerns me."
Colby
In his confirmation hearings as Director of Central Intelligence on
July 2,. 20, and 25, 1973, Director. Colby stated "While I believe that disclosure
of the total figure of the intelligence community budget would not present a
security problem at this time, it is likely to stimulate requests for additional
detail... There is a danger to national security in the release or leakage of
such detail; there is also a potential danger to national security in the
revelation of trends of different details of the. budget over several years even
though any one year's figures would not present a major problem.' (See
also Director Colby's letter of 25 June 1975 to Chairman Mahon) ..
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 l.t1V i "AL- 11411,LLIGENCE AGENCY
WASHINGTON, D.C. 20505
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2 5 J ;
4 7915
Honorable George H. Mahon, Chairman
Subcommittee. on Defense
Committee on Appropriations
House of Representatives
' Washington, D.C. 20515
Dear Mr. Chairman:
1. understand the Committee is considering the possibility of pro-
viding some form of open appropriation for the Central.. Intelligence Agency-
I am. strongly opposed to the public disclosure of the Central
Intelligence Agency's budget or of a. total budget figure for the intelligence
community.. While I recognize that, in the final analysis, this is a matter
for? determination by the Congress, I believe. disclosure would do a dis-
service to our foreign intelligence efforts and therefore would 'not be in.
the national interest.
I am convinced that once an intelligence budget figure is made public,
it will be impossible to prevent the disclosure of many, sensitive and
critically important. intelligence programs and activities. Whether the`
published figure represents the Agency, or intelligence community budget.
whether it reveals intelligence budgets in whole or in. part. I believe the
ultimate effect would.bec the same
Disclosure of intelligence budgets could provide potential adversaries
with significant insight into the nature and scope of our national foreign
intelligence effort, particularly where analysis of year-to-year fluctuations
in the budget. are possible. Publication of part of the intelligence budget
would raise debate over what matters were included and what matters were
not included in the published totals, leading to rapid erosion of. the
secrecy of the portions withheld. The same problems would result from
the publication of the total Agency budget, a total Community budget, or
any other figure covering "intelligence." An immediate requirement would
be levied to explain precisely which of our intelligence.activities were
covered by the figure and which were not. Definitional questions over
where "intelligence" expenditures stop and operational expenditures begin
would necessarily lead to public discussion of sensitive intelligence pro-
grams and techniques.
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 Ap ~i ' Rd le 9ea$?bl~lg k e G&fPq7A1 ~ AW9RIT OSQi Sn debate
on changes or trends developed in succeeding year, figures, and
fluctuations in the figure would generate demands for explanations which.
in turn would reveal the component parts of the figure and the programs
supported by it. The history of disclosure of Atomic Energy Commission
budget materials and related information by both the Executive Branch and
the Congress indicates that publication of any figure with respect to
intelligence would quickly stimulate pressures for further, disclosure and
probes by various sectors into the nature of the figure and. its component
elements.
Attacks have been. made on the constitutionality of the present
financial processes for protecting our national foreign. intelligence effort.
I believe the present. procedures are fully in. accord with the- Constitution.
-Agency appropriations are an. integral part of appropriations made by law
and. are reflected in the Treasury's Statement and Account of Receipts and.
Expenditures in compliance with Article 1, Section 9, clause 7 of the
Constitution. Moreover, there is considerable historical precedent for
budgetary secrecy, going- back to debates in Constitutional Conventions
and the use of a secret fund during the administrations of Washington and
Madison,. and a secret appropriations act. in 1811. Congress most recently
endorsed secrecy- of intelligence budgets, in. June 1974 when the. Senate
rejected an amendment to the Department. of Defense Appropriations Act
of 1975 which would have required that the total budget figure for
intelligence purposes be. made public.:
Sincerely,.
W. E. Colby
Director
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Funds can thus be transferred to CIA from portions of the defense budget
after being placed there by Congress with the knowledge that they are
actually CIA funds. By this means, Congress and the Executive retain
tight control of intelligence expenditures and intelligence information.
The report of the Senate Committee on Armed Services [S. Rept. No. 106,
81st Cong. , 1st Sess. , (1949)] on section 403E (a) states that it "provides
for the annual financing of Agency operations without impairing security."
The reference to "annual financing" indicates that the intent was to protect
the aggregate figure from disclosure as well as individual transfers.
2. 50 U.S. C. 403j may be said to complement section 403f. While
403E protects from disclosure the flow of funds to the Agency, 403j protects
Agency expenditures from disclosure. 50 U . S . C . 403j (b) provides that:
The sums made available to the Agency may be expended
without regard to the provisions of law and regulations relating
to the expenditure of Government funds; and for objects of a
confidential, extraordinary, or emergency nature, such expend-
itures to be accounted for solely on the certificate of the Director
and every such certificate shall be deemed a sufficient voucher
for the amount therein certified.
Congress has enacted similar provisions to operate in other situations where
a compelling need for secrecy has been found. Thus, provision is made for
secrecy in accounting for certain Federal Bureau of Investigation expenditures
at 28 U.S. C. 107, for certain Department of the Navy expenditures at 31
U. S. C. 108, and for Atomic Energy Commission expenditure at 42 U. S. C.
2017(b). In the case of the Central Intelligence Agency, disclosure of the
type of expenditure information protected by the provisions of 50 U . S . C .
403j would reveal the objects and purposes of covert programs, thereby
rendering them futile. Knowledge that funds are being expended pursuant
to a contract with a certain division of a corporation is enough to reveal the
nature of the project to intelligence professionals, or at the very least to
allow adversaries to target the most significant intelligence initiatives for
further probing. For example, disclosure of the commitment of research
and development funds to the most highly talented design section of a major
aircraft manufacturer when other expenditures were being made with a
manufacturer of sophisticated mapping cameras would have made the
existence of the U-2 program an easy guess. Examples from recent years,
as intelligence gathering becomes more technically sophisticated, are more
numerous. The tracing of expenditures to individuals can be just as damaging.
Disclosure of the fact that an individual has received money from CIA, either
as a conduit for covert funding or in exchange for services rendered, will
destroy the usefulness of that individual as a covert intelligence asset in the
future, not to mention the threat to personal safety to those who have cooperated
in the past. Also, disclosure of expenditure information would force the
termination of certain highly advantageous intelligence liaison programs with
foreign governments which would be embarrassed by revelation of cooperation
with CIA.
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3. The origin of the statutory and regulatory framework that controls
the handling of United States Government funds can be traced to Article I.,
Section 9, Clause 7, the Statement and Account Clause, which states that:
"No money shall be drawn from the Treasury, but
in Consequence of Appropriations made by law; and a
regular Statement and Account of the Receipts and
Expenditures of all public Money shall be published from
time to time.
This portion of the Constitution establishes the principle of maintaining
accountability between the Executive and Legislative Branches throughout
the process of appropriating and expending funds. And, of course, both
branches remain accountable to the electorate. As would be expected, the
procedures for fulfilling the obligation of maintaining accountability are
not set out in the Constitution, leaving room for variation in the method and
level of accountability to be required under different circumstances. Logic
would indicate that the constitutional requirement of maintaining accountability
cannot be read as being absolute, in the sense that a record of every expend-
iture must be made generally available. Such a requirement, apart from the
Herculean proportions of the task, would make any covert Government program
impossible, and some secrecy in Government operation has existed, necessarily,
from the earliest days of the Republic. However, evidence that this portion of
the Constitution is not to be read in impossibly rigid and absolutist terms can
be found in the history of the clause itself. The history of the clause and the
history of secrecy in Government operations subsequent to its adoption indicate
that sufficient flexibility exists under the accountability requirements of the
clause to encompass the special procedures reflected in 50 U.S.C. 403f and
403j .
4. The actual wording of the clause exists as evidence of the fact
that the framers of the Constitution desired to leave room for legislative
discretion and some secrecy in fulfilling the requirement for an accounting
of receipts and expenditures. The Statement and Account Clause was not
contained in the original draft of the Constitution. It was suggested from the
floor during the final stages of the Constitutional Convention, when George
Mason moved to require an annual account of public expenditures. James
Madison proposed to amend this motion so that the envisioned reporting would
take place "from time to time. " This change was proposed in order to "leave
enough to the discretion of the Legislature. " Madison's amendment was
adopted. 2 Farrand, The Records of the Federal Convention of 1787,
p. 618-619 (1911). The debate between Mason and Madison was renewed
in the Virginia ratifying convention in 1788. Mason opposed Madison's
"from time to time" terminology because he viewed it as making provision
for secrecy, and he felt there should be no room for secrecy. According
to Farrand,
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The reasons urged in favor of this ambiguous expression,
was, that there might be some matters which might require
secrecy. In matters relative to military operations, and foreign
negotiations, secrecy was necessary sometimes. But he [Mason]
did not conceive that the receipts and expenditures of the public
money ought ever to be concealed. *** But that this expression
was so loose, it might be concealed forever from them***.
3 Farrand, supra, at 326.
Patrick Henry also recognized Madison's language as a provision enabling
secrecy when required and opposed it for that reason. Henry feared that
the adoption of Madison's language meant that:
***the national wealth is to be disposed of under the
veil of secrecy; for [with] the publication from time
to time *** they may conceal what they think requires
secrecy.***
3 Elliot's Debates on the Federal Constitution, 462 (1836).
The debates indicate, therefore, that one of the reasons, besides allowing
for administrative flexibility, for modifying Mason's original phrasing of
the Statements and Accounts Clause was to permit secrecy in matters which .
required it. Even though Mason failed to conceive of circumstances under
which expenditures ought to be concealed from the public, the language
which Patrick Henry viewed as allowing Congress to "conceal what they may
think requires secrecy" ultimately was adopted. It therefore seems clear
that the framers contemplated that Congress would have the power to withhold
certain appropriations and expenditure data from the public, at least temporarily.
Madison, at least, was of the opinion that Congress should have such power
to authorize secrecy in certain cases:
The congressional proceedings are to be occasionally
published, including all receipts and expenditures of public
money, of which no part can be used, but in consequence of
appropriations made by law. This is a security which we do
not enjoy under the existing system. That part which authorizes
the government to withhold from public knowledge what in their
judgment may require secrecy, is imitated from the confederation***.
[Farrand, supra, 312.1
5. To entertain for the moment a view opposite to the foregoing, that
is, that Congress has no authority to make any appropriation or expenditure
in secret, can be seen to result in a striking anomaly. The Statements and
Accounts Clause, Article I, Section 9, Clause 7, does not in express terms
authorize, but Article I, Section 5, Clause 3 does:
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Each House shall keep a Journal of its Proceedings, and
from time to time publish the same, except such Parts as may
in their Judgment require Secrecy.
It appears extremely unlikely that the framers would include in the
Constitution an absolute obligation that every appropriation and expend-
iture be publicized, while explicitly authorizing each House to keep
secret its debates and decisions on these very matters.
6. The history of congressional understanding of the Statement and
Account Clause shows that it has not been interpreted as preventing Congress
from deciding (as it has in enacting the Central Intelligence Agency Act)
that certain classes of Federal expenditures should not be disclosed where
delicate questions of foreign policy or national security are involved. Not
long after the Constitution was adopted, Washington declined to make public
the amount of money expended by General St. Clair in furtherance of a
mission in the territory of Florida. See, 10 Federal Bar Journal 109 (1949).
Shortly after the Constitution was adopted, President Madison (who had
proposed the more flexible language of the Statements and Account Clause)
sent a confidential communication to Congress outlining his recommendation
that he be authorized to take possession of parts of Spanish Florida. Congress
then passed a Secret Appropriation Act, appropriating $100, 000 for occupation
and forbidding the publication of the appropriation law. See Miller, Secret.
Statutes of the United States, 4-5 (1918). The enactment was not made
public until 1818 when the controversy over Florida had ended. And almost
from the foundation of the Government under the Constitution there was
a contingent fund (later. denominated the Secret Fund), which was used by
the President to finance the secret operations of the Government, including
intelligence gathering. The legislation establishing the fund provided that
the President might account for the same:
... By causing the same to be accounted for specifically
in all instances wherein the expenditures thereof may
in his judgment be made public, and by making a
certificate ... of the amount of such expenditures as
he may think advisable not to specify; and every such
certificate shall be deemed a sufficient voucher for the
sums therein expressed to have been expended. Act of
February 9, 1793, 2 Annals of Cong. 1412, 1 Stat. 299.
The similarity of purpose and language between this early legislation and
50 U.S. C. 403j (b) , set out above, is striking,
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7. More recently, Congress has found secrecy to be in the national
interest in several settings. For example, over $2 billion was secretly expended
on the Manhattan project to develop the atomic bomb during World War II. Of
the statutes set out above that make provision for a confidential, or restricted,
accounting for the funds involved, that for the Atomic Energy Commission
dates from 1946 and was amended in 1963, and that for the Federal Bureau
of Investigation dates from 1950 and was added to in 1966. The provision
for the Department of the Navy was enacted in 1916 and has not since been
amended. The provision for the confidentiality of expenditures pursuant
to foreign relations may be said to span all periods of our history as a nation
since its first enactment in 1973. A comparison provision, now codified
at 31 U.S. C U.S.C. 1972, permitting delegation by the Secretary of State of
certification authority, was contained in each Department of State Appropriations
Act from 1947 to 1953.
8. Both Houses of Congress have within the past two years directly
confronted the question of intelligence budget secrecy. The Senate in June
1974 rejected an amendment to the Fiscal 1975 Defense Authorization bill
which would have required the disclosure of the intelligence community
budget. The Senate vote was 55-33. The House of Representatives in
October 1975 rejected an amendment to the Fiscal 1976 Defense Appropriation
bill which would have disclosed the CIA budget. The House vote was
267-147.
9. It is clear that Congress is authorized to exercise considerable
flexibility in establishing procedures by which the requirement for maintain-
ing accountability between the Executive and Legislative Branches and to
the people, as mandated by the Statements and Accounts Clause, is to be
fulfilled. The origins of the clause itself and subsequent history indicate
Congress is at liberty to adopt special procedures whereby certain appropriation
and expenditure information is restricted to Congress and the Executive
Branch. Present appropriation procedures for CIA reflect the fact that the
secrecy required for the success of intelligence efforts must be matched
with similar secrecy in the attendant financial processes.
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Extract of House Appropriations Committee Report
on the Fiscal 1976 Defense Appropriations Bill
Concerning Intelligence Budget Secrecy
33ASIS FOR CO3Ej%r rX7 E DECISION NOT TO PUBLISH THE X3077 LLICE CL'
COMMUNITY LUDGLT ---??-
:: ilio Committee considered ttt length the desirability of publishin g in
some fashion the total budget figures for the intelligence con,
muni.ty.
-It also considered separately-tile question of publishing justfhe Central
Intelligence Agency 'budgetttottd.TheCommitteedecidedthatpublica-
tion of the intelligence budget totals would be injurious to the secur-
ity of the United tjtates.
The Committee had the benefit of a, very detailed legal brief which
di
scusses the legality ofitii illi b
mananng a secretntegenceudget, The
brief considers the debate of the Constitutional Convention and cites
various examples of secretly funded activities throughout the history
of the United States, beginning with George Washington and pro-
ceeding to the present day. After considering all of this constitutional,
legal, and political history, the brief concludes that it is constitution-
ally permissible to continue the practice of not publicly disclosing the
intelligence community budget,
e ? Intelligence operations must remain secret in order to be successful.
'The disclosure of the budget and 'approlpriation amounts related to
intelligence functions or organizations might well lead to-demands for
the publication of ever-increasing data and could prove harmful to our
intelligence efforts. The publication of even total budget .amouzntsfrom
year to year would give some indication of trends or emphasis in this
area which would be helpful to the counterintelligence efforts of our
potential opponents. The Committee is fully 'aware of the difficulties
in supporting secret. operations in an open society, but believes that
adequate intelligence-is an essential ingredient of national securit
y
and that the public disclosure of information about our intelligence
-
efforts makes it less likely that adequate intelligence can be obtained
ALL OF THP II rFLLIGEi4CE COt2:tiIU-NITr BUDGET IS XIS LBIS LILL.
The Committee does believe that it can safely be reve=aled that all
funds -for the Central Intelligence Agency, the National Security
Agency, and the I)efense Intelligence Agency are included in the De-
partrnent of Defense appropriations covered by this bill and report.
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