LETTER TO MR. WILLIAM R. HARRIS FROM JOHN S. WARNER

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80M01133A000900160053-5
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 5
• Document Creation Date: December 15, 2016
• Document Release Date: January 14, 2004
• Sequence Number: 53
• Publication Date: December 4, 1974
• Content Type: LETTER

A T t - - V t
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WASHINGTON,
.t. .O3O3
OGC 74-2285
4 December 1974
STAT
Enclosed are my comments and those of Mr. Cary, the Agency's
Legislative Counsel, on your draft entitled "'Legal Authority for the
Conduct and Control of Foreign Intelligence Activities." You will note
that our comments are quite general and deal with only what we consider
to be the major issues in your paper. We appreciate the opportunity to-
present our views and feel that your work on this subject is most
significant.
I understand that you will be in Washington on 1o December for a
meeting of the Commission and that you plan: to talk to other Agency
officers on 17 December. If you have time, I would like to meet with you
then so we can discuss your paper in greater detail.
Sincerely,
I John S) Warner
J General'Coun_sel
cc: OLC
IC
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Comments by General Counsel and Le -jsla
~ c.tLC'c
Counsel, CIA, on Draft Paper Entitled "Legal
Authority for the Conduct and Control of
Foreign Intelligence Activities"
1. The following comments are general in nature and correspond to
the issues raised by Mr. William. R. Harris in his draft paper for the
Commission on the Organization of the Government for the Conduct of Foreign
Policy. Only selected broad, major issues arz addressed herein.
Issue #l: Should the Commission in its Report to the President
and the Congress reaffirm the fundamental importance of -
compliance with the laws of the United States in the conduct
of intelligence in support of foreign policy?
0
2. In regard to this issue the CIA is no different than any other Federal
agency. All. agencies must perform their functions and responsibilities in
accordance with the law. There are vague references in. the draft's discussion
on this point which imply that such has not been the case in the past. Any
action by the Commission which :Hakes affirmations along these lines will
only serve to unjustifiably increase the belief that intelligence activities are
conducted in disregard of U.S. law. Apart from this, such a statement
or recommendation appears to be unnecessary, since it is clear that the
activities of U.S. intelligence organizations must be performed in accordance
with U.S. law and no responsible authority contends otherwise. Perhaps
a more appropriate recommendation would be for clarification of the law -
concerning intelligence activities along the lines of S. 2597 and H.R. 15845.
These bills, introduced by Senator Stennis and Representative Nedzi respec-
tively, would expand reporting requirements lo Congress and clarify the
scope of permissible Agency activities.
3. On page four in discussion of Issue 7-1, the paper quotes Senator
Weicker from the final Watergate Report. This quote concerns the domestic
intelligence activities outlined in the Special Report and the decisions in the
Huston memorandum approving them. It should be emphasized that CIA h_s
no responsibility for and has not engaged in domestic intelligence collection or
activities. These matters more appropriatelc- Ter tai i to internal security and
law enforcement not the Agency'',
o, tom e~an it _=?lli~.ence c^_art-
o i-
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issue "3: Should domestic collection of foreign intelligence
or transnationa_l intelligence be safeguarded by (a) legislatively
mandated search warrants of courts of co :petezit jurisdicticn;
(b) executive promulgation of ~ standards for._oreign intelligence
collection; (c) legislatively mandated protection from, Public
disclosure, and/or criminal sanctions for abuse of domestic,
transnational or foreign intelligence; or (d) legislatively
mandated standards for domestic collection of foreign intelligence?
4. It can be persuasively argued that present practices and procedures
concerning domestic collection of foreign intelligence and ?ransnational
intelligence are both- adequate and lawful. See United States v. Butenko,
494 F. 2d 593 (3d Cir.), cert. denied, U.S. (1974). Sufficient
standards and procedures, established within the Executive branch, already
exist. Involvement of the judiciary in. the propriety of determinations in
this area is unnecessary, unwarranted and unwise. If clarification of
procedures pertaining to what the paper terms transnatitonal intelligence is
needed, this would be more appropriately accomplished by a specific NSCID
than by legislation.
Issue #4: Should the Commission recommend neg.=, legislative
authority- for CIA or other USIB agencies to collect, disseminate
and protect foreign intelligence of commercial value?
5. The National Security Act of 1947, as amended, does not exclude
or prohibit the collection of commercial or economic intelligence. Indeed, the
collection of such intelligence -- critical in today's climate -- is within the
ambit of the Agency's mission. Intelligence of commercial or technological
value is currently made available to the Departments of Commerce and
Treasury among others. The Agency's concern about their dissemination
practices pertains only to protection of intelligence sources and methods.
Issue #16: Should the Come, ission support enactment of
legislation to Protect foreign intelligence sources and
methods from unauthorized disclosure? [See Appendix 17
6. It is encouraging to note the paper's support for legislation to
protect intelligence sources and _mmethods. The suggestion of an analysis of
the Agency's proposed legislation under* the First Arne ndr_-Sent may be
approo-f'a`_c, but other su,gVestion s seem to indicate some misconceptions
about the scope of the bill's in-pact. In the first place, it does not appear
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that any "freedom of the press" issues are raised by the bill. Both the i lj~u-'_c-
live and criminal pro-;isions of the Agency's proposed legislation apply only
to a limited, narrow class of persons who have had a fiduciary relationship ti-Le U.S. Government t~ and t:'_fi ?o have been _ in duly j po ss -ass ion
Government y authorized __
of intelligence sources and methods information. The news media are not
affected by the bill. Indeed, absent the unusual circumstances suggested in
Near v. Minnesota, 283 U.S. 697 (1931) as possibly warran't-ing. pre-publication
censorship, New York Times v. United States , 403 U.S. 713 (1971) illustrates
the difficulties involved with prior restraints of the press. This is not to say
that it would be impossible to draft constitutional legislation which authorizes
prior restraints on the press. However, the Agency's bill does not attempt
to do so.
7. Next, the paper expresses reservations over the constitutionality
of providing both civil injunctive relief and criminal sanctions for dealing
with threatened or actual disclosures of intelligence sources and methods.
It is suggested that Beacon Theatres, Inc. v. Westover, 359 U.S U.S. 500 (1959)
and a line of case thereunder would indicate the unconstitutionality of the
injunctive proceeding (which does not provide for a jury trial and a public
trial) in light of the criminal provisions of the bill under which whose
rights are clearly a constitutional requirement. Ho::wever, we do not
agree with this conclusion nor with the suggestion that the injunctive
provisions of the bill are not really needed. First, assuming constitutionalit,r
under the First Amendment, statutory authorization for an injunction will
male it up-necessary for the Agency to contend with the uncertainty of a
district court's acceptance of the contract theory of injunctive relief
recognized and granted in United States v. Marchetti, 466 F. 2d 1309
(4th Cir.) cert. denied, 409 U.S. 1063 (1972). As the paper recognizes, ir_
some situations it may be more important to have a ready means to prevent,
disclosure than.to be able to prosecute after:_he" fact. Secondly,, the purpose
of the civil proceeding is to determine the 1ikE'!lihood that a named defendant
is about to engage in the conduct prohibited by the bill and the propriety of
enjoining the same. In this type of proceeding the defendant is not entitled'
to a jury or public trial. The fact that he may be prosecuted in a separate
criminal proceeding (in which he would have these rights) for future
violations of the statute does not change the nature or the civil proceeding
and make the rights to jury and public trial available there.
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Issue #20: Should the Co-mission seek to enhance public
access to intelli once inf0:P1ction, and accelerated
dcciassifica_tior. of public records by reform of the respon-
sibility of t e Director of Central 11,Ltelligence to protect
"sensitive intelligence sources and methods" but also to
mandate ''declassification of such foreign intelligence
information as is consistent with these duties." /See
Appendix 1, at pages Ala-All/.
S. The Freedom of Information Act, 5 U -S.C. Sec. 552, provides a
means whereby individuals can seek to obtain intelligence information. A
recent amendment to the Act, over a Presidential veto, is likely to enhance
public access to information and bring about further voluntary declassifica-
tion of many requested intelligence documents. In addition, of course,
Executive Order 11652 provides a-general declassification schedule for all
classified materials. Thus, a proposal to specifically mandate declassifica-
tion of information consistent with the statutory duty of the Director of Central
Intelligence to protect intelligence sources and-methods does not appear to be
warranted.
9. Not many would argue with the statement that major U.S. policy
decisions should be made only after full, open, and informed debate. However,
intelligence activities cannot be conducted in a fishbowl. Proposals to increase
the flow of information relating to these policy decisions should therefore not
focus upon CIA. Furthermore, it must be recognized that there are inherent
dangers in placing the ultimate power to decide what intelligence information
will be disclosed in the hands of a court, a body not attuned to classification
considerations. This is especially true of foreign intelligence matters.
Additionally.- constitutional questions may be raised by such attempts to
force disclosure from the Executive in this area.
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