PROPOSED FOREIGN INTELLIGENCE SURVEILLANCE BILL

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80S01268A000200010015-5
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 7
• Document Creation Date: December 19, 2016
• Document Release Date: September 26, 2006
• Sequence Number: 15
• Publication Date: May 2, 1977
• Content Type: MF

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SUBJECT: Proposed Foreign Intelligence Surveillance Bill
You will recall that, in connection with your decision to seek
legislation requiring warrants for foreign intelligence sur-
veillance, you indicated that the Department of Defense should
participate in drafting the provisions. On April 28 the Depart-
ment of Justice sent a draft of the legislative language to my
General Counsel. On April 29 the latter transmitted about
twenty proposed changes--twelve of them substantive--to which
the Department of Justice replied on April-30, adopting'some
and rejecting others.
The Department of Justice draft bill, as it stands after this
exchange, has limited but serious defects in two respects:
(1) it does not provide adequate protection for sensitive
security sources and information; and (2) it requires the
security agencies to meet disablingly complex standards before
they may engage in communications and'signals intelligence
activities.
I have suggested amendments that would cure these defects
-without any adverse impact on the civil rights of United States
citizens. As I understand his position, the Attorney General
agrees that the amendments I have proposed are legally proper
and administratively feasible. His reservation is that, if
made, they might cause the loss of some of the proposed sponsors
of the bill or some votes in committee or on the floor. I
believe these matters are sufficiently important to justify
some political risk at the outset. of the legislative process.
The activities affected by this legislation are crucial to the
obtaining of adequate intelligence forjyou.
My concerns are as follows:
(1) At five important points, the draft bill creates situations
that require sensitive security information to be exposed, and
thus increases the risk that it will be compromised:
First: As the bill is drafted, the court will review the
certificates by the intelligence agency that must accompany each
application for a warrant (to the effect that the information
sought is foreign intelligence information) using an "arbitraxy
and capricious" standard. That standard permits and encourages
the court to require more disclosure than would be the case under
the narrower "clearly erroneous" standard which you approved.
Glnssified by__ The_See-Def _________.-___-_
_.1u
ZPT FROM GENER1'.L DECLASSIFICATION SCHEDULE OF
L'SECLTIV ORDER 11652. EXELIPiION CATEGORY__-i___,
D LAS3IIY
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Second: The bill contains two sections specifically.permitting
.the court tt-ask for back-up information; one of these goes so far
as to require the intelligence agency to provide complete transcripts
from earlier electronic surveillance activities when it applies far
an extention of a prior warrant.
Third: The standard established for disclosure in connection
with law enforcement activities does not contain the necessary
requirement for weighing the adverse effect of disclosure on
national. security.
Fourth: The standard for disclosure in unrelated criminal court
proceedings is not stringent enough to protect the national security.
Fifth: The bill. requires public disclosure of the identity of the
ti judges to whom foreign intelligence warrant-approval duties will be
assigned. This is unnecessary and increases the risk they will
become targets for foreign, intelligence-gathering activities.
(2) At two points the bill creates what I regard to be unrealistic
roadblocks to the gathering of legitimate foreign intelligence
information:
First: The bill does not permit a warrant for more than 90 days
against entities that are both directed and controlled by foreign
governments, unless the security agencies can demonstrate that
these entities are "openly acknowledged" by the foreign government
that directs and controls them. Such open acknowledgment is seldom
the case.
.Second: the bill does not permit a warrant to be obtained unless
the foreign intelligence information that is sought cannot feasibly
(as contrasted,to "reasonably") be obtained by other methods. A
standard of reasonableness is, it seems to me, much more appropriate.
I believe that changes to correct these deficiencies can be made in
a manner consistent with your decisions on PRM-11/l. Moreover, I
strongly believe that the Administration bill should contain adequate
safeguards in these respects. The Department of Defense and the
security agencies, who are charged with obtaining this information
for you from the communications of foreign powers, are willing to
assist in explaining these concerns to the Congress in an effort
to get a satisfactory, workable bill enacted. My views and proposed
changes are set out more fully in the attachment hereto.
cc: The Vice President
The Secretary of State
The Attorney General ..
The Director of Central Intelligence
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Some of the principal additional details with respect to the Department of
Defense objections and proposed changes to the Department of Justice draft
bill on foreign intelligence surveillance are set out below.
A. Protection of Security
1. The standard used to review the certification by the Executive Branch:
Under the statutory plan, the Executive Branch will certify that the^informa--
tion sought is foreign intelligence information, that the information cannot
be obtained by other means, and that.the surveillance is required for a certain
period of time (up to one year in the case of surveillance of foreign powers).
Under the policy guidance issued by you, the certification with respect to
surveillances of U.S. persons was to be reviewed by a judge who could refuse
a warrant only if the certificate was "clearly erroneous" -- that is, only
if from the face of the certification the judge could determine that a mistake
had been made. The purpose in choosing the "clearly erroneous" standard,
after considerable debate by the PRLM-11 subcommittee, was to limit, to the
extent possible, substantive review by the court of matters within the
certification.
The current draft of the bill uses an "arbitrary and capricious" standard
instead. That is a major change, which in effect forces the judge into a
detailed analysis of the facts and gives wider discretion to deny the warrant..
This is an extension of the protection contained in S 3197 (the Kennedy bill)
last year which permitted no substantive review of the certification. under
an standard. The "arbitrary and capricious" standard permits a judge to
"second-guess" the Executive Branch as to what is foreign intelligence
information, what alternatives are available to get the information, and
how long.the collection of the information will take. I believe that to be
unwise. It also opens the door to the disclosure of a great deal of sensitive
security information because,.under an "arbitrary and capricious" standard:.,
a judge can deny the warrant if additional information is not provided, and.
that denial would be upheld on appeal preventing the agency from gathering
information from the target designated in the application. Under the -
"clearly erroneous" standard--the judge is limited to the information presented
in the certification and has no basis on which to request more.
2. Statutory authority for judges to request additional information: A
related problem is raised by two provisions in the current draft that speci-
fically authorize judges to require the security agencies to submit additional
information before approving the application for a warrant. I am concerned
that the inclusion of these provisions undercuts the intent of the bill not
to permit a judge to go behind the certification of the Executive Branch
except in a very limited way. I am even more concerned about the requirement
that on renewal applications, after the original warrant has run out, the
security agencies could be required to disclose the information in the
transcripts obtained from surveillance under the original warrant.
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3. Standard for disclosure of foreign intelligence information for law
enforcement purposes: The current draft of the bill permits disclosure of the
information acquired by the security agencies for law enforcement purposes.
I believe it very important to add the qualification that such a disclosure
be made only if national security interests would not thereby be jeopardized.
There is no difference between the Attorney General's position and my position
on the underlying policy. We differ only on the need for express statutory
recognition that national security interest may, -in.some instances, take
precedence over law enforcement interests. I believe that the policy
declarations of this bill with respect to law enforcement uses of foreign
intelligence information could be misinterpreted without such an express
authorization.
. 4. Standard for disclosure of foreign intelligence information in court
proceedings: Any defendant in any criminal case is entitled. to make a motion
demanding that the government canvass all agencies to determine if any of the
defendant's communications.have been intercepted, whether related to his
pending case or not. When a demand for disclosure is made, the judge has'to
determine whether the communications at issue were obtained unlawfully. If
they were, then they must be disclosed. If theywere.not, no disclosure
is necessary. The problem arises because many judges have decided that the
communications must be disclosed for the purpose of making the determination
whether the surveillance was unlawful.
It is appropriate in this bill to include a_basic protection against this kind
.of disclosure because the bill also requires'that all foreign intelligence
surveillance be conducted pursuant to court order. There should be only a
very limited number of cases where there is any need for a judge to disclose
to the defendant the contents of the communication in order to make- the
determination whether the court order permitting that particular electronic
surveillance was properly entered. The standard in the current draft is not.
sufficient to limit unnecessary disclosure. It provides:
"The court may disclose to the aggrieved person portions
of the application, order, or transcript only in compelling
situations where the harm to the national security is out-
weighed by the requirements of due process."
That standard-puts the burden on the government to demonstrate harm to the
national security (which may require the disclosure of even more sensitive
foreign intelligence information) and constructs a balancing process
weighted in favor of disclosure. I have proposed an alternative.
"In making this determination, it shall be presumed that
there would be substantial harm to the national security
if any disclosure were made of any portion of the application,
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order, or transcript, and the court may not disclose to any
person claiming to be aggrieved any portion of such documents
except under compelling circumstances where the substantial
harm to the national security is outweighed by the most
fundamental requirements of due process."
5. Public designation of the seven-judge panel and s~al review court:
The Chief Justice of the United States will designate the judges to serve an
the seven-judge panel that will entertain requests for warrants and the
three-judge panel that will review cases where the request for a warrant is
denied. The draft bill specifically provides that these judges be publicly
designated. I have expressed to you before my substantial concern that
placing the responsibility on a limited number of judges for approving all
communications and signals intelligence-gathering operations within the
United States will make these judges-possible targets for the intelligence
activities of foreign powers. I see no need to enhance this possibility by
making a public designation of these'panels. There is no additional protec-
tion for United States persons inherent in making public the names of these
judges unless one believes that the Chief-iiistice will not exercise his
selection responsibilities fairly. The-names of the judges would be
available to Congress should there arise an occasion to exercise oversight
responsibility with respect to the Chief Justice's selections.
B. Substantive Standards to Be Net in Obtaining a Warrant
The draft bill sets out in detail the standards that the security agencies
must meet in order to support an application for a warrant permitting them
to conduct electronic surveillance. These standards in general appear to
be workable. I have two important reservations, however, where the standards
are unrealistically stringent and would unnecessarily restrict the collection
of foreign intelligence information without offering any additional protec-
tion for the civil rights of United States citizens.
1. Entities directed and controlled by foreign overnments: The
current draft includes in the definition of "foreign power" entities that
? are directed and controlled by foreign governments. It divides these
entities into two categories: those "openly acknowledged" by foreign
governments to be directed and controlled by them, and those that are in fact
so directed and controlled but not openly acknowledged. A one-year warrant
and limited certification would be'permitted only with respect to the
"openly acknowledged" category. The "clandestine" category could be inter-
cepted only under a 90-day warrant and with a more extensive factually-
oriented certification as to the basis for the assertions that the informa-
tion sought is foreign intelligence information and that the information
cannot be obtained by other means.
ruo
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I believe this formulation to be too restrictive. The security agencies
will be required to demonstrate that an entity is both directed and
controlled before it will be permitted to take advantage of the special
year-long warrant. That standard is very stringent since "directed" requires
a separate showing from "controlled." Entities that are in fact directed
and controlled by a foreign government are extensions of that government and
should not receive additional protection against electronic. surveillance..
2. Other alternative means of obtaining the foreign intelligence
information: Under the current draft of the bill, the application for a
court order must include a certification
"that such information cannot feasibly be obtained
by normal investigative techniques."
I am concerned about this requirement because, if strictly construed, it
means that there is no way to obtain the information by other means. I
am also concerned because the phrase "normal investigative techniques"
includes a broad range of activities and what is "normal" in one kind of an
investigation may not be "normal" in another. I think that a better, more
understandable, formulation. would be
"that such information cannot reasonably be attained
by other less intrusive investigatory techniques."
I understand that the current political climate and the commitment of your
Administration to limiting electronic surveillance to proper uses require
this bill to include. all necessary safeguards of the civil rights of our
citizens.. The points I raise now are essentially technical ones because.
they do not impinge significantly on that concern. I want to be careful
not to limit the foreign intelligence information available to you, when
obtained from legitimate targets, and I believe that the substantial
credibility of your Administration can overcome any opposition to.the
changes I propose that may have arisen in the past.
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