LEGAL AUTHORITY FOR THE CONDUCT AND CONTROL OF FOREIGN INTELLIGENCE ACTIVITIES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80M01133A001000090001-8
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 96
• Document Creation Date: December 15, 2016
• Document Release Date: February 23, 2004
• Sequence Number: 1
• Publication Date: November 22, 1974
• Content Type: SUMMARY

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LEGAL AUTHORITY FOR THE CONDUCT AND CONTROL
STAT
OF FOREIGN INTELLIGENCE ACTIVITIES
A Commentary on the Summary of Issues
Prepared by William R. Harris fo" the r-)mmission on the
Organi:~w io~i of the Government for the Conduct of Foreign Policy
John T. Elliff
STAT
November 22, 197L
Views expressed are solely those of the author, and should not be
construed as representing views of the Commission or its staff.
OGC Has Reviewed
Dept of State review(s) completed.
NSC Referral Not Required
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LEGAL AUTHORITY FOR THE CONDUCT AND CONTROL OF FOREIGN
INTELLIGENCE ACTIVITIES - A COMMENTARY
by John T. Elliff
Part I FOREIGN INTELLIGENCE AND GOVERNMENT UNDER LAW
The paper prepared by Mr. Harris is one of the most important and
perceptive contributions to the study of foreign intelligence activities in
recent years. It strikes the right overall balance between recognition of
the nation's intelligence needs and concern for public confidence in the
responsible exercise of power. With some modifications, it should be
endorsed and published by the Commission. Its analysis and evaluation of
the issues would help improve public and Congressional understanding; and
its recommendations would, if implemented, strengthen and clarify the legal
framework for foreign intelligence activities. Some of the proposals are
likely to arouse controversy because they place legislative limits on
executive power. Nevertheless, the proposed limits do not seem unduly
restrictive in a nation seeking to re-establish the rule of law as a constraint
against abuses of authority.
The recommendations may, in some instances, be too permissive with
regard to possible infringements of the legal rights of United States
citizens. This applies to Issues #2, #3, #7, and #16. Moreover, the paper
does not devote sufficient attention to the need to define more clearly
the statutory prohibition against the Central Intelligence Agency having
"police, subpoena, law-enforcement powers, or internal-security functions."
Ph.D., Harvard University, 1968; Associate Professor of Politics,. Brandeis
University; consultant to the Senate Subcommittee on F.B.I. Oversight and
to the National Commission for the Review of Federal and State Laws on
Wiretapping and Electronic Surveillance; consultant to the Police Foundation
for the project, "An Analysis and Evaluatiion of the Internal. Security
Intelligence Operations of the Federal Bureau of Investigation."
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There is no clear delimitation of functions between the counter-espionage
branches of the foreign intelligence agencies and the F.B.I. which has been
directed by Presidential order to "take charge of investigative work in
matters relating to espionage."1 A recently published Justice Department
memorandum indicates that the F.B.I. is "normally not involved" in the
investigation of matters covered by Paragraph 5, National Security Council
Intelligence Directive Number it unless the inquiry is focused "within the
F.B.I."2 One former intelligence agency official has described the reluctance
of counter--espionage specialists to bring in the F.B.I. because Bureau
officials are viewed as "publicity-conscious" and "handicapped by all the
rules of evidence."3 The proposal for an additional ninth National Security
Council I ntclligcncs Directive to govern domestic collection of foreign
intelligence might address this.problem. (See p. 7.)
Rather than attempt to draft such a directive, the Commission should
recommend that the President and Congress re-affirm the F.B.I.,'s authority
as the agency primarily responsible for "internal security functions."
There are indications that the F.B.I.'s Intelligence Division - Counterintelli-
gence Branch is developing, in the post-Hoover era, a more sophisticated
understanding of the specialized techniques required for successful counter-
espionage work.
1 Directive issued by President Roosevelt on September 6, 1939, reissued by
President Roosevelt January 8, 1943 and reaffirmed by President Truman on
July 24, 1950-
2 Memorandum from the Attorney General to the Director, Federal Bureau of
Investigation, Subject: Unauthorized Disclosure of Classified Information
to the Press, May 9, 1962.
3 M. Copeland, Without Cloak or. Danger: The Truth About the New Espionage,
182-183 (1974).
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Issue #1: The Commission should 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.
Compliance with the law contributes to the effectiveness of American
foreign policy because public confidence in the institutions of government
is thereby sustained. Law is perhaps the most valuable resource for
maintaining the legitimacy of public policy in the United States. Conversely,
disregard of the law can undermine support for vital national security programs,
especially in the intelligence field. Government under law is also the bond
which holds together the domestic social fabric.I
On at least three recent occasions, one or more foreign intelligence
agencies have engaged in conduct of questionable legality. In 1970 the entire
foreign intelligence community endorsed the surreptitious entry and illegal
mail intercept features of the so-called "Huston plan." The C.I.A. provided
Improper assistance to the White House "plumbers" unit in 1971. And in 1972
high C.I.A? officials seemed initially willing to request that the F.B.I.
curtail its investigation of Watergate.
Reaffirmation of the need to comply with law would strengthen the
capacity of intelligence professionals to resist lawless external pressures.
The law should be viewed as protecting legitimate intelligence functions,
rather than as an obstacle to be circumvented in pursuit of the national
interest.
1 "Decency, security, and liberty alike demand that government officials
shall be subjected to. the same rules of conduct that are d.ommands to the
citizen. In a government of laws, existence of the government will be
imperiled if it fails to observe the law scrupulously. Our government is
the potent, the omnipotent teacher. For good or ill, it teaches the whole
people by Its example. Crime is contagious. If the government becomes a
law-breaker, it breeds contempt for law; it invites every man to become
a law unto himself; it invites anarchy." Justice Louis D. Brandeis, in
Olmstead v. United States, 277 U.S. 438 (1928), dissenting opinion.
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The issue of the overall legality of foreign intelligence functions
delegated under the National Security Act of 1947 is reviewed effectively
by Mr. Harris. The language and intent of the Act, plus annual ratification
by Congress through post-briefing budget authorizations, constitute sufficient
legislative authorization for covert intelligence actions. Wise policy may
dictate more precise legislative standards, but the constitutional require-
ments of the separation of powers are satisfied.)
There is greater doubt as to the constitutionality of the provisions
of the Central Intelligence Agency-Act of 1,949 which exempt the C.I.A. from
normal controls over expenditures.2 As noted by Mr. Harris (Issue #14), the
courts have declined to consider this issue in a taxpayer's suit. However,
the constitutional principle of full disclosure should be given great weight
in any consideration of legislative oversight procedures.
From time to time it is asserted that there are exclusive Presidential
powers to collect foreign intelligence. Mr. Harris properly rejects this
conception (Issue #3, note 19) and recognizes that these powers may be
shared by the legislative and executive branches.3 The National Security
Act of 1947 is, of course, a prime example of this sharing of authority'
1 "When the President acts pursuant to an express or implied authorization of
Congress, his authority is at its maximum. . . Justice Robert H. Jackson,
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), concurring opinion.
2 Article I, Section 9, of the Constitution provides: "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."
3 "When the President takes measures incompatible with the expressed or implied
will of Congress, his power is at its lowest ebb. . . ." Justice Jackson,
P. cit.
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Part 2 AUTHORITY WITH RESPECT TO FOREIGN INTELLIGENCE
Issue #2: The Commission should be concerned with standards and
procedures for the lawful. collection and safeguarding of foreign
intelligence acquired within the United States, or concerning U.S.
citizens or corporations abroad.
The main reason for concern is the public disclosure that the so-called
"Huston plan" in 1970 included the following relevant provisions:
--"coverage by N.S.A. of the communications of U.S. citizens using
international facilities;-"
--int;ensified F.B.I. electronic surveillance coverage "of foreign
nationals and diplomatic establishments in the United States of
interest to the intelligence community;"
--relaxation of restrictions on illegal covert mail coverage "on
selected targets of priority foreign intelligence. . .interes,;"
--illegal surreptitious entry "to permit procurement of vitally needed
foreign cryptographic material;"
--increased "C.I.A. coverage of American students (and others) traveling
or living abroad."1
Mr. Harris contends that the first item is a legitimate measure to obtain
transnati.onal. intelligence received in or transmitted from the United States.
He rightly observes that safeguards are needed to insure that such intelligence
collection does not infringe the legal rights of citizens. Similar interests
are at stake with regard to F.B.I. electronic surveillance within the United
States and C.I.A. coverage of citizens overseas.
1 "operational Restraints on Intelligence Collection," in Statement of
Information, Book VII--Fart 1, White House Surveillance Activities and
CamTy.iirn Activi.tics. Hearings before the House Committee on the Judiciary,
93d Cong. , 2d Sess. (May-June, 197)4), pp. 418-442.
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COMMISSION ON THE ORGANIZATION OF THE GOVERNMENT
FOR THE CONDUCT OF FOREIGN POLICY
2025 M STREET, N.W.
WASHINGTON, D.C. 20506
ORGANIZATION AND ROLE OF CONGRESS IN FOREIGN
POLICY: CONGRESSIONAL PERCEPTIONS
R. Roger Majak
Congressional Specialist
TABLE 1
Role of Individual
Members .
'Dissatisfied
Role of Congress
Satisfied Dissatisfied
68.2% 31.8%
(15) (9)
8.6% 91.4%
(5) (53) n = 94
Role of Con.crress Role of Executive
Overall View of Re- - - - -
cent Foreign Policy Satisfied Dissatisfied Satisfied Dissatisfied
Support 26% 74% 68.2% 31.8%
(13) (37) (30) (14)
Oppose 11.1% 88.9% 22.2% 77.8%
(1) (8) n = 59 (2) (7) n = 53
NOTE: The survey data reported are based on a preliminary and
partial analysis and should be.-regarded, therefore, as
tentative and subject to revision. Interpretations of
findings and any views and conclusions. expressed are those
of the author alone, and not-of-.any other member of the
Commission staff, or of the Commission on the Organization
of Government for the Conduct of Foreign Policy or any of
its member Commissioners,
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Issue #3: Domestic collection of foreign intelligence or trans-
national intelligence should as noted below be safeguarded by
(a) legislatively mandated search warrants of court: of competent
jurisdiction; (b) executive promulgation of standards for foreign
intelligence collection; (c) legislatively mandated protection from
public disclosure, and/or criminal sanctions for abuse of domestic,
transnational, or foreign intelligence; and (d) legislatively
mandated standards for domestic collection of foreign intelligence.
The Commission should express its concern in this area by-recommending
that the President and the Congress give careful consideration to the
adoption of legislation and the issuance of executive orders which address
the following problems. First, any interception of oral or wire communications
within the United States or directed at U.S. citizens overseas must satisfy
the "search and seizure" standards of the Fourth Amendment. Wiretapping and
electronic eavesdropping are the most intrustive forms of surveillance,
recording as tney ao every casual remark and expression. This writer believes
that a prior judicial warrant procedure can be devised which would not unduly
interfere with vital foreign intelligence collection within the United States
or regarding U.S. citizens overseas.1
Second, assuming that burglaries and illegal opening of the mails are
no longer seriously considered, other forms of intelligence gathering within
the United States do not raise major constitutional problems. Wireless electronic
communications may be intercepted; informants may be recruited; undercover
agents may be planted; public record information may be compiled; interviews
may be conducted. These and similar techniques may be used at home or abroad
without infringing the rights of citizens subject to legitimate inquiry.
J. Elliff, "Electronic Surveillance for National Security," New York L,w
Journal, June 5-7, 197.
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However, wise policy may dictate careful limits on such measures when they
are aimed at U.S. citizens. The ban on the C.I.A. performing "internal
security functions" is one example. Thus, Mr. Harris properly suggests the
need for a ninth National Security Council Intelligence Directive delimiting
the scope and procedures for domestic collection of foreign intelligence.
Third, legislation may be required to establish legal safeguards against
the misuse of intelligence information. Recent investigations have discovered
examples of the partisan use of national security intelligence information
obtained through electronic surveillance.1 Intelligence gathered for
legitimate purposes should be protected by statute from use for any other
purpose unrelated to national security.
i ourt h . in hi S disc>>ci nn of 1 ssue #1? (note 48), Mr. Harris cites
proposed amendments to the National Security Act of 1947 to authorize various
domestic functions of the C.I.A. in support of its foreign intelligence
mission. Such legislation would be unnecessary if the additional NSCID
discussed above were issued.
1 "In or about January 1970 H. R. Haldeman and John Ehrlichman permitted
the information contained in one of the summaries of the 1969-71 wiretaps
to be used in connLction with political action in opposition to persons
critical of the Administration's Vietnam policy." Statement of Information,
op. cit., at p. 20.
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Issue #4: The Commission should not recommend new legislative
authority for CIA or other USIB agencies to collect, disseminate
and protect foreign intelligence of commercial value.
Although this subject is not explicitly mentioned in the National
Security Act of 1917, it might come within the broad interpretation of
"other functions and duties related to intelligence affecting the national
security." Any dissemination of information to private firmlw should occur
only when necessary to protect the national security, not simply to grant
commercial benefits to U.S. firms.
Issue #5 -- see discussion of Issue #15.
Issue #6: The Commission should recommend legislative authorization
and confirmation by advice and consent of the Senate of the Defense
lnte'l ligence Agency and lt;_ Director.
Such action would improve the conditions for legislative oversight.
It should be noted that the position of F.B.I. Director was not made subject
to confirmation by the Senate until 1968. Care should be taken not to
derogate the authority of the Director of Central Intelligence.
Issue #7: The Commission should not recommend supplemental legis-
lative authorization of the National Security Agency, but should
recommend confirmation of its Director by advice and consent of the
Senate.
Senate confirmation of the Director is again valuable to insure adequate
responsibility to the Congress. However, the need for supplemental legisla-
tive authorization is not clearly demonstrated, since there are serious
doubts as to whether transnational intelligence regarding U.S. citizens
and corporate activity abroad should be gathered through the communications
interception facilities of N.S.A.
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The fact that N.S.A. has vast capabilities should not be conclusive
of the issue. The risks of collecting and storing extensive data about
U.S. citizens are demonstrated by the F.B.I.'s past difficulties. An agency's
power is magnified and the temptation to misuse the information correspondingly
increases. The fears engendered may be more damaging to the nation's
political life than the actual abuses of power. There should be no signi-
ficant exception +.o the principle that the primary subjects 'of foreign
intelligence agency interest are foreign nations and their citizens, not
U.S. citizens or corporations. Overt information-gathering methods must
suffice to supply data about American business firms. Secret surveillance,
no matter how "non-intrusive," has no place in dealing with the lawful
.tipcs if cl Lzenti at h:_mc
The present policies of N.S.A., as described by Mr. Harris, appear to
circumscribe these dangers properly. Unavoidable interceptions of U.S.
citizen and corporate communications abroad should not contribute to the
Agency's data base, but should be destroyed automatically.
Issue #8: The Commission should not recommend legislative delegation
of responsibility for new fields of foreign assessment and forecasting.
Mr. Harris rightly stresses that the foreign intelligence agencies
are not the only source of expertise in emerging areas of interest. The
analysis here leads directly to consideration of Issue #14 with regard to
the desirability of widening the intelligence marketplace.
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Part 3 CLANDESTINE SERVICES UNDER MUNICIPAL AND INTERNATIONAL LAW
Issue #9: Clandestine services do not constitute a der se
violation of the obligations of the United States under inter-
national law.
Clandestine operations appear justifiable under international law in
at least three different circumstances. First, there may be tacit or
even explicit international recognition of the desirability of certain
forms of intelligence penetration, as by means of remote sensing equipment
and satellite surveillance, to monitor arms control agreements and maintain
the stability of international expectations.
Second, a right to retaliatory actions seems to be recognized under
the 1961 Vienna Convention on Diplomatic Relations, a treaty ratified with
the advJee and consent, of in 1972.1
The thld, and most debatable condition applies to intervention by
rival powers in a third nation. An charging principle may be that intervention
is justified to counter the intervention of another power. However, this
principle may be said to be firmly established only where the original
foreign intervention seeks to threaten an existing government, which then
requests the counter-intervention.
Issue #10: The Commission should recommend amendment of the National
Security Act of 1947 to require, prior to authorization of "other
functions and duties," an opinion as to the legality under the laws
of the United States and obligations of the United States under
international law..
The ambiguities of international law suggest that this requirement
would not unduly burden the foreign intelligence community. It would, however,
1The Association of the Bar of the City of New York, "Judicial Procedurec for
National Security Electronic Surveillance," Federal. Le i.slation Report No.
74-4 (June 24, 19,"'L) 9 P? 17.
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provide for a detached analytical, evaluation of clandestine operations,
from a perspective more likely to take "the long view." Mr. Harris'
endorsement of this idea makes a major contribution to the search for
reforms which can help re-build confidence in the ability of the foreign
intelligence community to exercise its powers with responsibility and wise
discretion. 1
Issue #ii: The Commission should not recommend amendment of the
National Security Act of 1971,7 to permit, in the discretion of the
National Security Council, delegation of "other functions and duties"
to the Director of Central Intelligence rather than to the Central
Intelligence Agency.
This proposal misconceives the problem. In practical terms, it would
al1.ew the Pirectrr of Central Intelligence to authorize the performance of
clandestine functions by military services, rather than by an agency
the C.I.A. with a significant civilian orientation. This would be an
undesirable departure from the practice of vesting covert operations in
a non-military agency.
However, it may be desirable to divide the C.I.A. into two separate
agencies, both non-military in character, but one for intelligence analysis
and the other for clandestine operations. The advantage would be in
removing the taint of "dirty tricks" from the analysis professionals.
1Professor Matthew Holden, Jr., of the University of Wisconsin observes,
"The principle issue. . is whether de-stabilization is wise at a given time
and whether it is properly authorized, controlled, conducted, and terminated
when it is no longer approved or effective. What we cannot contemplate, in
short, is hostile action taken without mature consideration, outside any
framework of authoritative political approval, on the notion of some self-
initi_atin- burcauoratic nucleus which cannot be called to account." Letter
to the Editor, The W hinrrton Post, November 1, 1974.
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Issue #12: The Commission should not recommend amendment of the
National Security Act of 1947 to require Presidential authorization
of any "other function,- and duties" under subsection 403(d)(5).
Mr. Harris appropriately points out that this proposal would lead to
needless international embarrassment, unless it is meant as an abolition
of covert operations entirely.
The latter position is an intellectually and morally defensible one,
although not required by prevailing principles -,f international law. The
foreign intelligence community should be willing to face the possibility
that the electorate might choose a President committed to refraining from
intervention in foreign nations. If this appears the likely outcome of
the political process, responsible intelligent- officials are obliged to
aMJe by an autho:cit,aLive limiting tnei1 scope of ,-]Kid ion.
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Part 4 N',ANAGE??1;NT OF THE -INTELLIGENCE COMMUNITY
Issue #13: The authority of the Director of Central Intelligence
as intelligence adviser to the President should be strengthened by
requiri n.r- of an annual report on the combined intelligence
budget to the President of the United States.
Every effort should be made to strengthen the position of the Director
of Central Intelligence, the Intelligence Community staff, and the committees
which otherwise support the Director. Firm leadership is necessary to
control the vast and entrenched intelligence bureaucracies. A strong and
creative Director might give serious consideration to the lowering of
barriers to entry into the intelligence marketplace.
Issue # 14: Efforts to expand consumer---reducer "intelligence markets"
and to eliminate oligopolist practices of USIB-member agencies would.
not require legislative #Civi~i.
Mr. Harris argues effectively for reform in this area. He may understate
the degree of comuetition among U.S.I.B. agencies and the current channels
through which university research expertise is utilized. In this field it
is difficult for an outsider to arrive at more than tentative conclusions.
Nevertheless, the desirability of reducing the obstacles to more widespread
participation in foreign assessments and forecasting appears clear.
While no explicit legislative authority is required to initiate such
reforms, the objectives might be accomplished more rapidly if the Director
of Central Intelligence received a clear legislative mandate to declassify
foreign intelligence (see Issue #20).
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Part 5 PROTECTION OF FOREIGN INTELLIGENCE SOURCES AND METHODS FROM
UNA1NN ORIZED DISCLOSURE
Issue /15: The Commission should recommend U.S. participation in
multilateral agreements or treaties to protect peaceful. remote
sensing; systems, and to dedicate designated systems as international
observation systems u:vier Article 99 of the United Nations Charter.
This is an especially fruitful area for bilateral negotiations with
the Soviet Union and multilaterial arrangements under the United Nations.
As noted in the discussion of in-,,ernational law, the major powers and the
entire international community have shared interests in remote peacetime
observation. Formal recognition of these interests in international agreements
and through pooling of information would provide a more effective framework
for world security. Shared data might also c.,l.ance the development of
multi 4ateral a_nalyticai e.n.na.hi Iit.IF;C in nnn-military fields rnjatinp: to
food and energy resources.
Issue #16: The Commission should not support enactment of legislation
to protect foreign intelligence sources and methods from unauthorized
disclosure.
After reviewing the legislation proposed by the C.I.A., the Justice
Department, and Mr. Harris, this writer has reached the conclusion the
new statute would create more difficulties than it would resolve. The wiser
course is to allow the federal courts to proceed with the development of
limited injunctive remedies along the lines of the Marchetti case.
The theory behind prior restraint upon publication in the Marchetti
case goes directly to the heart of the problem--the breach of fiduciary
responsibility on the part of persons who have entered into specified contract
agreements with the federal government. Furthermore, the courts have taken
great care in the course of the Marchetti litigation to limit injunctive
relief to matters determined upon judicial review to be properly classified.
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It is recognized that; as stated by the Supreme Court in the Pentagon
!LcrL Case, "Any system of prior restraints of expression fbear a heavy
presumption against its constitutionality."1 Moreover, the Supreme Court
may look with greater favor upon prior restraint authorized by Congressional
legislation, rather than based on "the inherent powers of the Executive and
the courts."2 If the Supreme Court were ultimately to reject the theory
of the Mai-chetti case on these grounds, Congress could consider enacting
legislation to authorize injunctive remedies against persons who breach
explicit contractual agreements with the federal government. Such prior
restraint is distinguishable from the Pentan;on Papers injunction because it
is not directed at the press, but rather at the source of the "leak."3
/
1' Vl CU ncc W o u C l ac nc;, ~l^ V< no"',
cE~i ~ yc.? n?, ..=ld be to invite rc:: prcble:r.,
at the risk of losing the gains made in the Marchetti case. The addition of
criminal penalties merely complicates the issue by introducing the
uncertainties of prosecutorial discretion and jury trial. The deterrent
effect of subsequent punishment is limited at best. Another difficulty is
the extension of coverage under a new statute to persons who have not
explicitly entered into contracts with the government barring their disclosure
of classified information about foreign intelligence sources and methods.
New York Times Co. v. United States, 403 U.S. 713 (1971).
- See the opinion of Justice Byron White, op. cit.
3?
. .it is clear to me that it is the constitutional dut
f
y o
the Executive--
as a matter of sovereign prero:;ative and not as a matter of law as the courts
know law--through the promulnation and enforcement of executive regulations,
to protect the confidentiality n0C1::.;azy to carry out its responsibilities in
the fields of international relations and national defense." Opinion of
Justice Potter Ste:war_t, off, cit.
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Part 6 OVERSIGHT OF FOREIGN IIITEILIGE71,TCE ACTIVITIES
Issue #17: Any legislation to protect intelligence sources and
methods should expressly exempt communication of foreign intelligence,
and intelligence sources and methods to any duly authorized Committee
of the Con- rc:; s uT)On "lawful demand" or other-,,j 0.
Mr. Harris properly suggests that a duly constituted Congressional
Committee may not know enough to issue a "lawful demand" for information.
Thus, any narrower exception would impede Congressional access to infor-
mation it has a constitutional right to possess and receive (although an
individual Congressn;an may not have the right to demand such data).
Issue #18: Any revised format of Congressional oversight of
intelligence activities should adapt procedural safeguards from
NSA and AEX oversight practice.
This Cvmmi ssi on should eccmmend that the Ho ise c f Repre;:-
waive Rule XII, which gives any member of the House access to all committee
documents. Especially sensitive documents should not be made available
to non-members of the intelligence oversight committees. This would make
it possible for the Director of Central Intelligence to submit his annual
report on the combined intelligence budget to the intelligence oversight
committees, as well as to the President. (See Issue #13.)
Issue ##19: Presidential advice respecting foreign intelligence
(PFIAB or PSAC-equivalent) should not be formalized by statute,
but should be left to Presidential discretion by executive order.
This Commission should recommend that President Ford re-establish the
PFIAB by Executive Order and look to it for advice and guidance. However,
statutory authorisation might derogate the authority of the Director of
Central. Intelligence.
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-17-
Issue #20: The Commission should seek to enhance public access
to into] ligencc info_r_;ration, an,i accelerated de-classification
of public record: by reform of the responsibility of the Director
of Central Intelli;raonce to protect "sensitive intelligence sources
and method bust also to mandate "declassification of such foreign
intelligence infor_ration as is consistent with these duties."
While declassification may be of value to historians, its greatest
benefits would arise in conjunction with reforms to widen access to the
intelligence marketplace. (See Issue #14.) Such steps may be taken
without Con-,ressioila,l action; but if changes are to be made in the Director's
responsibilities to protect "sources and methods," then a mandate to
declassify would be in order.1
If the Constitution gives the Executive a large degree of unshaxed power
in the conduct of foreign affairs and the maintenance of our national defense,
then under the Constitution the Executive must have the largely unshared duty
to determine and preserve the degree of internal security necessary to exercise
that po er successfully. It is an awesome responsibility, requiring judgment
and wisdom of a high order. I should suppose that moral, political, and
practical considerations would dictate that a very first principle of that
wisdom would be an insistence upon avoiding secrecy for its own sake. For
when everything is classified, then nothing is classified, and the system
becomes one to be disregarded by the cynical or the careless, and to be manipu-
lated by those intent on self-prot-ction or self-promotion. I should suppose,
in short, that the hallmark of a truly effective internal security system
would be the maximum possible disclosure, recognizing that secrecy can best
be preserved only ti-;hen credibility is truly maintained."
Potter Stewart, Now York United ~ Opinion of Justice
roles Co. V. UStates, 403 U.S. 713 (1971).
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PI'FI.I'':_CN \ X DR\FT
? r~ -5 C` -H r T FOR PUBLIC
RELEASE I-VITIIUUT CONN1SSION .'APPROVAL
o: 1_ssut r t11(:i Con n: ssi n on the
the C for the Con duct of Fore igrn Pol-icy
W11.l i,Im R. 1t; ~-is
October 30, 1 1074,
rcv7_S~:d
November 22, 1974.
i".: :r~: e cd l _1E'1v t%Ics' .`E e f ?' C, S'
3Lit or Z should n
Oot be
cC,is":n:, (1, r~.p r Views C; the C:O2n 1SS Y staf~ .
~_OIl O l~.S
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.. ii --
SUNu'LARY
Review of legal authority indicates that essential U.S.
foreign intelligence functions may be performed consistently
with the laws and constitution of the United States, with two
possible exceptions: the National Security Agency may require
legislation if assigned enlarged collection duties (Issue 7,Rp.L-16),
and criminal sanctionc may be required to protect against un-
authorized disclosure of intelligence sources and methods
(Issues 16, 17, 20, pp. 33-38, 40-41, and Appendix: 1).
Earlier delegations of intelligence functions beyond law-
ful authority (pp. 2-4), without adequate legal advice, need-
lessly da..ia ;e c' the foreign intelligence mission. Present dele-
gaitions of au horny by National Security Council Intelligence
Direct-.'I_ve (NSCIDs) are consistent with law. A new NSCID address-
ing standards and procedures to safeguard domestic collection of
fore:i.gn intelligence would be appropriate (p. 7), within a broader
effort to r.e r`ilat:e not only the aperature of domestic collection
but also the adequacy of surveillance records, sanctions for im-
prop-r disclosure, and safeguards for external access (pp. 8-11).
Emphasis upon dissemination of foreign intelligence of commercial
71 p 1-11- t 11 - f-1' .] Un i t ?? i r~ [r r,
specialized agencies (pp.13-14), or specific new fields of Intel--
l i genr_c~ (1 .1.7; ,would be accelerated by specific legislative
assignment of functions.
Clandestine services have been undertaken consistently with
the National Security Act of 1947 (though ambiguous on its face),
as elucidated by annual budget and oversight review by four Com-
mittees of the Congress (pp. 5- 7) . However, certain clandestine
services may be inconsistent with particular treaty obligations
which, under the supremacy clause of the constitution, are part
of the laws of the United States (pp. 7, 19). It is proposed
that inconsistent practices of the United States in international
legal practi_ce and in direction of clandestine service functions
by the National Security Council be rendered more fully compatible
by amendment of the National Security Act of 1947, so as to re-
quire a legal. opinion prior to such National Security Council
authorizations (pp. 19-21, and Appendix 2).
Were a prima facie case established that the clandestine
services of CIA should be "spun off", it is suggested that any
"spin off" not be imposed upon the National Security Council,
but be rendered discretionary so as not to compel an arrangement
which with hindsight may appear to be unworkable (Issue 11, pp.
21-22, and Appendi_: 2). If the 'case for a "spin off" has not been
adequately de onstrated (and in this author's view it has not been
so demonstrated), even the discretionary "spi.n off" authority may
be un%w:arranted. Requiring .residential certification of cland .~s-
tine services appears unsound Issue 12 22-231.
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SU-14,NMRY (CONTINUED
Efforts to strengthen the managerial authority of the Director
of Central Intelligence are addressed (pp.25-27). The impact of
legislative direction of an annual budget report (now issued) by
the Director of Central Intelligence is considered (Issue 13, pp.
27-28) as is the possibility of providing statutory authority for
the Intelligence Community (IC) staff (p.28). Obstacles to intro-
duction of market or quasi-market mechanisms (by which consumer
needs might be more adequately met) are not primarily legal in
nature. Discriminatory informational practices by intelligence
producing agencies, which have the effect of precluding governmental
access to outstanding analytic skills in universities, industry, and
other research institutes deserve careful review, and perhaps inves-
tigation by the General Accounting Office (Issue 14, pp.30-31).
Two aspects of the protection of foreign intelligence sources
and methods are reviewed: strengthening international law safe-
guards for remote sensing in peacetime (Issue 15, p. 32), and streng-
thening U.S. criminal laws so as to reverse an ethic of fiduciary
irrC,''-
,p--j' bi_?.ity respecting protection of intelligence sources and
methods (Issue 16, pp.33-38) . Department of Justice draft legisla--
:_.L ois ~c-~j~F~c ti u.i. I, Tau A aE~~~eai~ to oe L o LIs 1.ituLiuual buy. 1.L1dQ Ulld5t .
CIA draft , gi. ~l.atiorl (Appendix 1, Tabs C and F) appears to be uncon-
s4t c?lal, and, 1. en if constitutional, inadequate to protect
agaist- extraterritorial disclosures. Amendments to draft legisla-
tion are suggested (p.37). It is proposed that the Commission con-
sider the issue of supporting the principle of strengthened criminal
sanctions rather than supporting any particular draft of proposed
legislation. Protection of Congressional access to executive rnforma-
tion does not appear to be adequate in either the Department of
Justice or the CIA draft legislation (issue 17, p. 38, and Appendix
1, pp. A8-A10).
Oversight of foreign intelligence by Congress is to be considered
by another. Commission panel. Procedural safeguards for sensitive
intelligence information are here considered (Issue 18, pp.38-39),
so that Congressional oversight may be rigorous, and so that the
appearance of diligence need not be shielded from, view. Review by
Presidential advisory groups, with or without a statutory basis
(Issue 19, pp.39-40), and by accelerated public access to intelli-
gence information (Issue 20, pp.40-41) are discussed. Although
reform of the U.S. foreign intelligence community is not primarily
an issue of law, it is essential that duties be assigned and faith-
fully executed in accordance with the constitution and laws of the
United States.
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TABLE OF CONTENTS
S um: na ry
Table of Contents
iv
Legal Authority for the Conduct and Control of Foreign
Intelligence Activities - A Sunrnary of Issues
1
1
Foreign Intelligence and Government under Law
1
2
Authorit-j w,-ith Respect to Foreign Intelligence
8
? 3
Clandest3_r e Services under Municipal and
International Law
18
19 4
Manage ent of the Intelligence Community
25
5
I'rotocti_c.n of Foreign Intelligence Sources and
31
6
Methods from Unauthorized Disclosure
Oversight of Foreign Intelli_s,ence Activities
38
1 7
Tatbl.c: of Issues Considered
42
Lp cndi_x 1: Protection o Foreign Intel.li_gence
Sources and ods from Unauthorized
Disclosure
Introduction to Recent Draft Legis-
lation, by William R. Harris
Tab A: 5.1, A Bill to Codify, Revise and
Tab B.
Tab C(l) :
Tab C(2) :
Tab C"3) :
Tab C(4):
Tab C(5) :
Tab C(6) :
Tab L.
Reform Title 13 of the United States
Code, 5 2-5B3, "Misuse of National
Defense Information."
S.1400, Criminal Code Reform Act,
? 1124, "Disclosing Classified infor-
mation. "
Letter, W. E. Colby, DCI, to Roy L. Ash,
OMB, January 14, 1974.
CIA Draft Legislation, January 14, 1974
CIA Sectional Analysis and Explanation
Proposed Changes in Existing Law
Draft Transmittal Letters
Cost Analysis
Department of Justice Draft Legislation,
August 14 1974
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Tab E: Letter, T. E. Colby, DCI, to W. B.
Saxbe, Attorney General, September
17, 1974
Tab F: CIA Office of the General Counsel
Draft Legislation, September 12, 1974
Tab G: ClA Office of the General. Counsel
Comparison of Draft Legislation in
Tabs D and F. su ra
Tab H: S. [blank], Criminal Code Reform Act, 93d
Cong., 2d Sess. ?1124 [revised], "Disclos-
ing Classified Information," transmitted
October 15, 1974.
'!pp =nd i.x 2: Proposed transfer of "other functions
and duties relating to intelligence
as the National Security Council
may from time to time direct" from
"the [Central Intelligence] Agency,
under the ciiection of the National
Security Council" to "The Director of
tine ea:
tion of the N', ti_or,` Security Council";
Proposed duty to furnish to the Na-
tional Security Council an opinion as
to "the legality under the la,,s of the
United States and the obligations of
the United States under international
law" prior to authorization of any
"other functions and duties. "
Author's Draft, October 30, 1974.
Supl_,le?Went to Appendix 2: National Security Act of
1947, as amended, Title I, Coordination
for National Security, 101-102.
Appendix 3: Classified Information, Deleted Per Determination
of the National. Security Agency [separate appendix,
Confidential, Group 2].
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LEGAL AUTHORITY FOR T1117 CONDUCT AND CONTROL OF FOREIGN
INTELLIGENCE ACTIVITIES - A SUINE11ARY OF ISSUES
by William R. Harris''`
1 FOREIGN INTELLIGENCE AND GOVER'N'MENT UNDER LAW
The secrecy and mystique of foreign intelligence activi-
ties exascerbate the usual difficulties of public agency
accountability. As has often been noted, there is no sub-
stitute for leadership of integrity and self-discipline.'
Still, the discipline of legal accountability remains a
bulwark of liberty, in a society where, strictly construed,
executive power is the power to execute the laws.2 Because
it is undisputed that intelligence agencies are fully bound
by t:?gee la; ,s and constitution of the United States, any pro-
posed statutory prohibition against official agency par_tici-
"in any i ecra1 arf$tirif-r c.rii} 1r 7 ,ITT arcac
r;C'_C a
"lli::l-\'c orders calle._. National Security
Intelligence Directives. . . . the public still has no
way of knowing, what that mandate is." In August 1-974
Senator Pro-;mire testiii..ed before the Subcomnlttc_ on
Intelligence of the House Armed Services Committee re-
specting '". . . the so-called secret charter of the CIA
The . . . NSC IDs ,'F urging that "[t]he NSCIDs should
. . . be the subject of an intensive investigation by
the [oversight] committees." Statement of Senator Prox-
mire, at 2 (1974).
ii Previously reviewed by the author. No opinion is expressed
with respect to National Security Council delegations
(other than NSCID's) in the period 1965-1974, in directives
not reviewed by the author. Because the National Security
Council is, by statute, advisory to the President, National
Security Council decisions and directives remaining in force
should not generally be construed as inconsistent with Presi-
dential policy. Titus, the statement prepared for and publicly
released in the name of President Harry S, Truman, in December
1963, stating, inter al a, "I never had any thought that when
I set up the CTA it would be injected into peacetime cloak-and-
da g{; pp ldzftoX Release ~U0V01 /2 tICI RD['.tQ Q.u1J 3AQ QOQQ990Q11t8 than the
relevant National. Security Council directives of the Truman
AriminiSiratiL,n.
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Defeat of a blanket prohibition of CIA covert action by
a lopsided margin in October 1974,12 is far less. signifi-
cant than the knowledge of customary practice, and annual
budget review by four oversight committees of the Congress.13
Uncertainty respecting the scope of National Security Coun-
cil delegations of functions, on the part of then-Director
of Central Intelligence Hillenkoetter in 1947-1948, was
resolved by NSC directives within the first year of opera-
tion under the National Security Act of 1947.
Accordingly, the clandestine service functions which
are per_fo -u-,ed may fairly be characterized as consistent with
the legislative purpose of the National Security Act of 1947,
l1
The Abourezk A .: ndment to the Foreign Assistance Act of
1974, would hove added to the Foreign Assistance Act of
19(_11 ? 661 "I1_l ega Activities in Foreign Countries,"
s
to prohibit rrany agency. . . to carry out any activity
{ .? ?,-,.. -F- .~ -' r - . - L^. n 1'\ 1 1 rl f' (l c` Fl Y !' l Yl {` (_l rl n /) (l
to e;1cr,,, a tl-.e violation of, the l.a?c?js of the Lni_ted
States of of sueii country." Under the su.pr?nnacy cause
of the LT,S.. Co ,; f_ .tlli io 1 treaties become the supreme law
of the lane, but the m. nicipal laws or foreign states are
not generally recognized as obli.vat . on , of the United State.
lle A'~o
Y he A:,,hcd by executive order in 1952, and was
thereby llll')1_ i C'C';-_`' recognized by consequence Of the Act of
October 31, 1951, found at Title 18 U.S.C. ? 798(b),
as a protected cr;,ptclo~J-i_c authority designated by the
President . P.L. 86- 36 of 1959 provided administrative
authority for ieSAA. Since 1.962 there have been direct
annual Congressional. appropriations. Following the Marti_n-
NitC hC'1l defect: ions p rsonnel security provisions were
establ.i_s` ed under P.I_,, 82-90 of 1964. A Cor ,rressi_ona1
_ l~ic1h z (vz is-eL110 1Cga1 aut-}1c) r i L y c)i various
c C) C, 1)c' .c'1 e C1 C nci d
Li not estion 'C', i% 's J le gal authority
as ,.shed feenCy. SCe U S COIZc're )
ices C r' f t c' 7r, a C L
L t t
o 1; Approves F~qr~ lease ~( 4%0 261;,CI~4= T 4 ~ A. L 0 0 `~"
s . :I L v u ._ { 1. `~ u )
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16
1 i~1.S J~age l'i ou 1 C: C 1x:71 '~ c._ne Se'!"'~ 7_C~" lie formed outside CIA
coc%:'t'inat.ed tire:. DCI be precluded by Act of Congress? Con-
ver":se V, if the cLor-:ni st:s F::!-n, but are wrong, should a. return
t.U U.1,lul: L'. c,(1.Li ~uiL tl :d s i_rlce 19/=7 . In accordance w:i_t.'.
a.IL
~.
c:,-" 1'"1 J_c. 1Z S.!i {:.L:`d ? t0 I_Y.'C'.C t:Or c)f CC_']"lta"c'l.. 1_.rl ~!:. (? i 1-
a!_
ganca J'1Ct.:JI'e .
fl
. 1t. :i S ilia isl] t-}7 t yo serve as the Government s
.''r 11_z_r-nc,e Offj icery and as suc'h_ that
you l ndo::' C cu ' _ c ' l;C l"1 of your responsibility,
the COG? Ct_1`i::: jLl t~:iilCe O:L {i.l:'0 t'0'l=clI
1Jni_t( C Ste Lire o latce11 enef:fort_.
you n Cont i_nui ng review of the
U pro-
f~J`c' ,:S ails. ?'ictjv:i_t:'_es ;? 1-1 U S
eign J;ILc] t'IgencE ac :L 1t;C t.witl1 ]`vie to assuring effi_.
c'icncy of 1:ertivc le0s end to avoiding undesirable dupli.-
cLI rr
tiQiJ
~~ }`C iLIjflOLtC1 Ff _sta t y if2c e - .1 - c,,-vv
c i. al, tin 1Cn of f e T
' L c I7 Cl 1'?
t - _
Deno) t..: ?lt d Po C 21 aEioi1 f _ ~_ ..
, 50 Stci_ t02.cC'_ Staff reporL 1.
17. n:oilic,ence is
1rEi-
1)re,J ,C-
Jj oiTy CL1:TI i!l_1.tee (?RAC) and the lit to .I_l.i.
c`J]_i t) ) }). (.ijiC') "?tE unCdo]: the aegis of the 1`1i.rect '
_oo cD, i:
C,:,- CC'iiL
--lice 4:':) a G?l_ 11t c ut/hority of law,
,..rr r, r! t .. rd more er i-~ r? ! .-nr! c ,.*r.,ep
o T k :'!)c
-nd
under OOkCn
oI_ C:c nt~ct_i_pt._cn of e`, :l _Itory ,i'ysi unct.; on is not ai fu "i J. : 1li1?
maw y of Cs cool-'0 1.: i r,;:c~ l l ~;e;1c-e system, '?i ny consumers are see- v_Lcec,
by C:>CC:' -i
'1- responsive Lo c'C..ic;rlCi t ft_. .
;;}ail
problems persist, despite many instances CAS:
out St.:t;iiC..:i` 1';ltclligence producti oII: 1' i rst, in t}'.e n ?:le Of sec Li'C
01 `CC.-pal 1Siv SS to iio]_ cry the producing a ic?encies may unreasonably
xse: harr _c1:.. to market crltr_y, through data com,part.mentation or fall
uiC: to ub:11:i_t estimating tasks to the scrutiny of appropriate _~..nsi' _t:)-
t:Lctns in inclu :try, university or other non-profit research establz..>1,-?.
menta. Secon', 'Consu'mer:, may be precluded from exerting quasi--market
influences upon production decisions, via budget choices or the
of production schedules in bodies from which consumers are excluded C-
L" I .~ ].......,,. ._ _~ - -- --. ... iCl C )'-'i ail C:1i1' r
ill t1. } i?. ,_ i r'OO Lc" 1,' 0('v i it-(it i_011;3:L C. ,
c- 't tai: 11s 1_ ,>
r
~;,~f~pro~~fl 0 'ii~leasre; X00'103 DOk Q'1l d3Ac0,1~'I'u000 6b . ~$ S :1, L c:
G+ , / 1Cf is (]` C girt -O c v
11~C..
lid e S - 1. .Ii U, S-i S,
C)f ,sec -:_ on 1021
(Cl) ( 1 C) i the
Of 1 Li,t 7, 1) y 14h1_C}'1 t:}"I C'. Director O Conti
l.)t 1 1 C c L t 1
__ ,C (_. c:J_tC'. y I_i J1 T)7: )'C
, 1 i ?
Lin- 1 ; ?nC_-C, SC L.7 C. o
~~_ _,
o~- of Con .,~Ul Inlets 1
ncc ncas issued at
t
once D r c C. C) f C) :E C e 1 C
r r ,
.'_Lc.1 1C_11 i'-,C:nC,n Dirc_ctj
e ,. i. t:r t; i-s -- in
-?-1 4-% y , in 1-iniVc.rS1_tleSy in
re3~'~ 7.:C~I7
"i_,nSi:i_ :re precluded froi1 direct: utilization of
i:;i1 11 tc_ ;-
int:ell ge oe. Legitimate security concerns may be channeled by mc'cnc;
4.T111E}1 Ci].rce C'.OI711)E't _1_t:1G_1 Oi private experts with 1_i1tC f. j.:i tencO.
n tystS, 1i.C':1 E.11: ou 't e ~;Ci'- -COnti'aCt7.-I1g via intel-7 LgenCC ?< El":cies
t}1C i ,`;t -:: acres to Ol)_rOpSOn]_St C011tr_0.' of the market) or
t'711=(C'}1 7 f Lh C:-.c1 lucin of t.}1C nat ? t)11 T , c
Ps t minds from
60 6 . St i t . 2u I L \ 5 (ci) s t has be'e'f. U.17SUC'Ci'S iu~_1_~~ ehC.1. I
.E i1 TC C~
:Iii thu C',); 2c'
396 U< S. 91,9
ee J s~ d r ' ) 1 V. LI . ~ ' 4 ( C ) '
Ct:. 20
62 , U.S.L.W. 5076 (June 25, 197' 1 c):_ A P-~6 el dran naitiona1 Leo-,+t 5
AA prbvedFor.R a easec20o4i03/26 : tl RPP6dM91;133,AQ0WQOQIQOQ'k-$1 i_n tE- r e st,
J'_'. Jr .
1'1;1)1 i c:ILie & c>i-DctCn:~e Infca~u)ati on," 73 Lol_unI,. L. l z't. X297
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- 34 ..
tyi_rl i.nt el?.igen e "sources and methods" lcgislution to S. 1400
7
would be of no g neater merit than tyirl a r-acE horse to the he ;rse
in a fun: -:, ;_ t;roce sion, Those opposed to criminal- sanctions
for It;? 1l)i:.iC?=`7_;'`'C} Cj1. ;E'I.C ure of intell7_ ?;en`ce. sources and methods may
CL'::17C:'lld i.=h:_S of actio11.
Recently ro CSC';l sonroC'.S Arid methods leg isslation, from the
,
Off ic? e c>..r the General C)u 1 e:! , CIA (At T) pe7_, Tab C, January
lj St1?,-17.F31_('.Ct a Jl1Sl"7_CE'. CUUn.tt=2:p3"0-
p 'ca I } L u?_`: 1_!tJ ~J St_ Tust 9 t. U no other
3L)i_(` in that 1_t doe not appe:'a) , on its face, to
be U1:cia: t Jt'_1'._1 or 1 e son G,h:._Cil lll: here so m 1 eI CJ
jT 1.. 1. l.'S.. P
i f) th L:, ._ VC: C.C)o C'1 ns ~!j "n~, )_i,Llc.1 securi-ty" and , hich T. do not
,;) 4.. t_i: c. ). '_ C x_11:+i.1 'ae eg: .~.~., t:1 hi' C71 af't ~? p rl, "
d, overly b1-cad, or
.
' .? .
t C. aF
I .I : I t~' '~-? ~_