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December 9, 2016
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March 17, 2000
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May 15, 1978
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Approved For Release 2000/08/30 : CIA? kl5ftf 161 R000500 ME1ORANDUM FOR: Director of Central Intelligence FROM . Graham Allison SUBJECT . Guidelines for CIA Foreign Intelligence Activities: An Overview of the Forest Better late than never--I hope. In any case, I aut sorry that this is so late. This memo summarizes my response to your assignment:. to explore whether it is possible to devise useful guidelines for the intelligence community's activities abroad. As your last memo emphasized, this question applies both to clandestine collection and to covert action. The delay in my response to your assignment resulted not only from, the time-consuming demands of learning my new job as Dean_ Even more important has been the extraordinary difficulty of this assignment. At first, I thought the difficulty stemmed largely from my lack of familiarity with the community. But as I've talked to hundreds of people within and without who don't suffer this handicap, I have concluded that the problerrr is much deeper. It is relatively easy to take any single tree or other, and develop the case for pruning it, or fertilizing it, or even cutting it down. The hardest problem is to step back from the trees and get a broad view of the forest. My "report" attempts to present an overview of the forest and problems of forest management. This memo extracts seven major ideas or points that are presented in a lengthier, and more orderly form in the report. 1. Your first question is: is it possible to devise useful guidelines for the intelligence community's ar_i ties abroad? Many people at CIA 'and elsewhere argue: no_ For example, Ambassador Harlan Cleveland stated this view clearly at the Agency last year: "A written- code of ethics can never be comprehensive enough personal behavior as a public servant- General prescriptions, whether in the form of dos or don'ts, are bound to be so general as to be. useless or so specific as to be unworkable." My unambiguous answer to the question about guidelines is: yes. Approved For Release 2000/08/30 : CIA-RDP81-00261 R000500030056-7 ' s - tai l i ty Apprc~~F~,,~els~t3~q(~~(~b~4-~T0~1000500030056-7 of devising useful guidelines or simple and clear: such guidelines now exist. Though nowhere stated as such, FrlassenbT d. inc- precisely that form, the body of informal mores orders, internal regulations,. do constitute a network governing CIA and restrictions that provides useful direction to, on Agency activity. 2. Why are we interested iin acode of ethics? -- The point is not primarily or exclusively to constrain bad behavior. Contrary to the assumption on which much current public discussion is based, the objective of the exercise is not to tie down, or drug a rogue elephant. The point is to help motivate, shape, and constrain - the behavior of professionals in the intelligence- community in ways that will ~re toreconfidence external 1y n lawful i ntel g e pride_internall in a most difficult and -important profession. Especially in your position, you should emphasize the positive as well as the negative side of the i4 to the purpose guidelines. On the positive side, inspire intelligence professionals toecourage, one inventiveness, and effectiveness in ! reti critical fundamen-ta~h.ile of the most difficult and assuring relevant publics lawfulness of intelligence activity. the purpose is to restrain behavior from violating basic rights and other values. 3. A System of Guidelines While any effort to write guidelines will contain a 'Fist- of dos and don'ts, that codewill not syIn fa ct., it is stem of guidelines but one element in a "system" of guy includes not only a clear statement of rules, butnalso apa rocess for, a 1 in the rules to hard cases, a Pro ?s pian and an independent process for overseeing the community practices. this presentation of an overview is organized around concept of a system of guidelines: eci.-fi:c. guidelines and Rules (from general principles to sp perhaps even a formal code of conduct); A Process for Applying the Rules; Approved For Release 2000/08/30 : CIA-RDP81-00261 R000500030056-7 Approve F6QFW e1 {61 ' 0 : I'd'1 ` 8`1 `b 261 R0005d0030056-7 -- A Process for Overseeing Practice in Rule-'rlriting,. Application, and Enforcement- 4. The Lar er System of Which Guidelines Are a Part The system of guidelines on which my assignment focuses is but one part of an even larger conglomerate of the functions that shape, motivate, and restrain behavior of individuals in an organization. The larger conglomerate is called by my colleagues at the Kennedy School a "personnel management system," though it doesn't have much to do with what ordinary personnel officers think about. This larger system encompasses the array of activities from recruitment, selection, socialization, and training of entrants in the organization through assignment, career development, continuing education, rewards and punishments, to exit--all of which shapes, motivates, and restrains the behavior of individual members of the organization. As part of the total "personnel management system," a system of guidelines is important. Standing alone, its effect on the behavior of individuals will be quite limited. In comparison with other elements of the total "personnel management system," the system of guidelines may be less important than various other components. -- This larger "t)ersonnel management system" is beyond m assi nment here. know from the tsaflier memo Andy Marsha an sent I have variou G %hat larger system, especially as it relates to the production of first-rate analysis. 5. General Principles For the system of guidelines on which this assignment focuses, the most important element is the big picture: general principles within which more specific guidelines and processes are established. -- In my view, the fundamental principle is that the President (and government) should not undertake actions in secret that cote? nil. i- -R nr' e defended test of political viabilit_Y?_ -- Because clandestine activity cannot be subjected to the normal test of open public debate, the institutional challenge is to devise an ., ropriate s2rro4ate pro( that engages surrogates for the interests that would participate in full 3 Approved For Release 2000/08/30 : CIA-RDP81-00261 R000500030056-7 Approved For Release 2000/08/30 : CIA-RDP81-00261 R000500030056-7 public discussion, involves them inl serioungcaing t in Oars disciplined private review of proposed covert actions, and requires thoir suppcrat"ic substantially equivalent to the normal & mo test of public support. The paradigm of a surrogate process in our society - nrl` rirl+r-~ic, is the mechanism for b vs.,the need t9 onstitutional rights to rivac ar~quire information that may prevent crimes. __;- 1?{ ow i s this- s"~ne. Wiretaps on US citizens can - has issued a be authorized only after a court cause to believe warrant on the, basis of probably an individual is engaged in crirninal activity_ 6. Specific Guidelines Are a Can of 'lo m`s -- Lengthy, and perhaps endless ar(JUMent can be made on both sides of almost every specific prohibition.. Within limits, what is suitable or even permissible will vary substantially with circumstances. For example, "measures that should not'be and?rtakenpinmpeacetiema, or against a democratic state, may during actual or threatened hos'; ? ties ust?therefore a totalitarian regime. El-e' be preserved to adjust to ctr_'c,u', csinaand httoQe' modify rules and procedures as o - Because of the extraordinary ar)raY of possiblities, it would seem best to state general pdesumptioons that capture core va1_ues and to pr vid principles for making ece`options to these where exceptions are justified. Thus, across the* array of specif P ; and thereby affirming ic issues, rececommend establishing presum - the value-~- but creating a process that allows appropriate individu-alantotbalanceeeacwceptions these values against other important valuers in extraordinary situations. This leads me to believe that brath as a matter of R strategy and tactics, you should tional circumstances. nr1IRI~"1S and permits exce Lions in exc-ep Approved For Release 2000/08/30 : CIA-RDP81-00261 R000500030056-7 -Approved For Release 2000/08/3~0 ? CI~~~,@ldRQ 0500030056-7 xc ___~~ _- ~.-.Q 7. A Final Footnote That-_.E Current Assignment 1aosely organized As you know very well, the present, rapid and substantial "system of guidelines" is now undergoing change. This change proceeds apace, piecemeal- It is initiated sometimes by Congress, sometimes by NSC or Justice (as in the long list of topics being addressed by the second half of PRM-11 and its follow-on) and sometimes by the Agency itself. But as far as I have been able to determine,,this: erview process of change is not informed by any comprehensive live that of the problem, or any comprehensive strategy change explicitly recognizes: the u" ^f trror~hyl actic act the tradeoffs between one change and another; the cumulative impact of piecemeal change on the. actual working of the entire system- So, for example: -- The Hughes Ryan Ame mant has produced an effect that was not intended or anticipated by most of its congressional supporters. Their votes were won by the argument that the President should .personally have to authorize and certify to Congress tions were necessary for the that specific covert ac nation's security (and thus himself be clearly and personally accountable for such actions, unlike- the earlier Castro episode, for instance).. But what has.been the result? This requirement now means that covert actions are reported riot just to an oversight committee but to eight separate committees; these committees' lack of sanctions for members' unauthorized disclosure givesindy?j~.1 con ressmen a virtual u over the majority o in Congress about these matters; this whole prosbus everel restricts the- r aCt;~,?~ number and sco . This chain of effects was presented in the discussion preceded the vote on The current-draft bill of the SenateeSelecteCommtttee on Intelligence addresses aI ^f SnPC.ifici.ty altogether any attempt to address penalties for unauthorized disclosure of -intelligence reflecting coner-er_ L V U ate for 7 0 isl-ation and what for executive appropriate --_ ~_ nA nmittincr Approved ForRelease 2000/08/30 :,CIA-RDP81-00261 R000500030056-7 Approved For Release 2000/08/30: CIA-RDP81-00261 8000500030059 roin follow-on is PRM-11 working g trying to try up oe problem after another, n one at a time, with little overview of possible tradeoffs and interactions. /7/ fnr h; t,kina. My "report" is presented, therefore, not only as my answer to your narrower question about guidelines, but also as a first cut at an overview of the forest that might--after appropriate more comprehensive deeper view of the problem, that CQa take the offensive and provide at every point.a more thoughtful, What is to be done? Somewhere, someone should have a strategic overview of the problem and should be pulling together the relevant parties and pushing them towards a purposive conclusion. Candidates for "strategic director" include NSC (possibly Aaron), the Senate Committee (maybe Miller), the Agency (perhaps STATINTL I suspect that the first two candidates will not play this role. If you, in close collaboration with someone in the Agency, wanted to revision and expansion--provide some of the basis -For your carrv1ng t~ wit h p... 1 To develop an overview that is simultaneously comprehensive and deep; to develop' a strategic plan; to-do the strategic management-- each is a big job that will require substantial investments. The stakes are high here--but they are high in all the issues on your desk. Not sitting in your seat, or even being aware of many of the other issues on your desk, I won't presume to recommend that you invest your time and energy here rather than elsewhere. If after you've read the memo that follows and thought about the larger strategic problem, you want to hear more on this last subject, I have a few thoughts about a pla coon. After too long a delay, and more hemming and hawing than I like to acknowledge, the ball is now back in your court. 6 Approved For Release 2000/08/30 : CIA-RDP81-00261 R000500030056-7 Approved For Release 2000/08/30 : CIA-RDP81-00261 R000500030056-7 GUIDELINES FOR CIA FOREIGN INTELLIGENCE ACTIVITIES The report that follows Isdoirgcauniszesedd it will . points. After discussion and wiserve to highlight the major p and quickly into a briefing revision, I can translate this directly a q paper or a long memorandum or whatever. The form will depend on how you might want to use it. The major ideas in this report have been summarized zedein thercover memo. Here they are presented in a more logical This report is organized as follows: I. THE SETTING -- why should the United States engage in any clan- destine activity that clearly violates other nation's laws? -- can any action the U.S. takes against non-U.S. citizens abroad harm important U.S. values and objectives? II. A CODE OF ETHICS -- the importance of guidelines of useful guidelines li ty -- the possibi --- the role of guidelines and a code of defensive -- should the intelligence community about guidelines and a code of ethics? d 4 III. ELEMENTS OF A SYSTEM OF GUIDELINES IV. RULES -- general principles specific guidelines V. A PROCESS FOR APPLYING THE RULES VI. A PROCESS FOR ENFORCING COMPLIANCE WITH THE RULES VII. PROCESS FOR OVERSEEING PRACTICE IN RULE-WRITING CEMENT rPLICATION AND ENFOR Approved For Release 2000/08/30 : CIA-RDP81-00261 R000500030056-7 Approved For Release 2000/08/30 : CIA-RDP81-00261 R000500030056-7 THE SETTING Congress, or any broader presentation of theee nissuea to n4 F al 1 F, th urpose the public, or even within the Agency, A concise, i preamble that puts the problem in context. hard to do well. People come to this ssue with preamble is very prejudices: such varied backgrounds andsrejuld engage in any some wonder why the U.S. should clandestine action at all; others are skeptical about any restrictions ever on U.S. clandestine actions abroa ; what still others are confused: offended by Soviet citizens' phone electronic eavesdropping on U.S. but. to U.S. Congressmen, i cal 1 s or Korean payments uncomfortable about the basis facticesrin~~theg if CIA engages in equivalent Soviet Union and Korea. 'For frame mast iofnterereferent arties,. sted reamblE. should establish common A good p specific i ss problem and some ddress r who the within which to a of are thinking a it can serveted coclus s the people coe of w a thse a pro general int boutroductithese on i o he made ssueyor the fi it should s Dints t issues f for the fir time, problem. Among the key p to major dimensions of the are the following- daily in clandestine A. The U.S. government engages that violates the activity abroad that is not acknowledged, and that would, if laws of nations against whom it is taken, stitute a violation of taken against U.S. citizens, con law. Some clandestine activity American's rights and U.S. satellites taking pictures of missile sil~rom wheat involves s lucking some involves electronic devices some is just good fields; documents air phone calls or other communicat1olv~s the U.S. espionage where a spy gives old-fashioned esp government's secrets or a foreign government containing a foreign in asses false documents offirgovernment about U-S. in the hop nmen p e of deceiving Lions or actions. questions: This activity poses two fundamental l) Why should the U.S. engage in any clandestine ( activity? Approved For Release 2000/08/30 : CIA-RDP81-00261 R000500030056-7 Ap roved For Release 2000/08/30: CIA-RDP81-002611`000500030056-7 ci tize ns harm on important U.S. takes against non-- (2) Can any ortant U.S. values and objectives? cl anciesti ne ngei n `~ States e Why shoul d the_Un United Because aws. B. or and majcause activity that clear viol overnments intsecret Can do actions taken by forei national sec sometimes err ara h rm c l o s e d .S societies like the Soviet Union, ll ot y some nations, especia ts to hide from outsdc vle"ncedb advay f or e ef a massivs ecause U.S. interests engage have-so U.. . interests. S information that othWesha?e not a collectedsit Because acquiring use U..S- other ,na long as they do not know events in n 1 ?pnc = wry and without interests can s countries by instruments b other vt e lotions has our role. The recent orgy of rev But it has provided focused acknowledging rather than successes. sed on failures, that make the point: a number of examples histirated h t without the development of agiilitiesr the ' and reliable clandsSinand aSoviet strategic arms Treaties limiting negotiated. These treaties tain could never have been commit the Soviet UnionotototbuildeanaABe M certain actions, for example, and the the closed nature of Soviet society ite Giv's un willingness to allow on-s ets S,ovi Sovienet S. could not have confidence that t fore what ?excep th U S t - eemen were adhering to the agr means 0 the treaty refers to as anatioae collectioneri- fication." Effective c1 rerecuzsite ential capabilities are an evensioreofscurrent SALT ; of any successful negotiations. ry hijacked an Air when Black September teas France 707 with 100 Israelis aboard, took the plane to Uganda's Entebbe Airport, and threatened to kill s an equivalent number of Arab ard, toexisted? the hostages unless released, what prisoners in Israeli Jails were, frhe "legal" surveillance of the situation.. observed local Ugandian law were not itselfya Capability the hostages. Should the U.S . e for covert action like the Israeli raid on Entebbe Approved For Release 2000/08/30 : CIA-RDP81-00261 R000500030056-7 Approved For Release 2000/08/30: CJA-RpQP. '~-SQ264R 06 030056-7 if terrorists were diverting ri 3t of a large any ts uranium from a nuclear reactor in number of countries, U.S. security and interestS could require a covert capability to identify fact and, if necessary, to take action. the C. Can any action the U.S. takes auainst non-U__5.. citizens harm m~ ctant S val aes and aa~ect?ves? This Is the th abroad - o o ntelli- other extreme. I have been surprised t;o discover how many people are candidly skeptical of any restriction on U.S- i gence agency's covert actions abroad--beyond thetradit1pna~ question has identified at least calculation of w"?~rQr the V an My refection on this st three ways in which U.S. intelligence action again non-U.S. izens abroad can harm important American values and objectives: tit under- estimated The power of the U.S. exarp e is greatly by most Americans- George Washington s contention that teabroadravexample erstat~essther most powerful instrument point. But the opposite view is even less tenable. As the most open--loci ety__i n _the wart d, the U.S. i s most vulnerable to int~erro~~S~ltechr~alagiPSplike terrorist activities, plastique, and even assassination. We~kcasaitiis, one of our strongest defenses against is to be found in international legal andmoral than taboos. Our nations role in weakee ingaraaser than- strengthening such restraint on po tion will, I believe, stand as one of the blackest marks on our record of the late 1950s and early 1960s- Foreign intelligence activities can contravene and even u der foreign policy objectives are a multi-faceted and often not entirely compatible amalgam- Because the instruments of American foreign policy include many lanizations, it is not possible to achieve? a f fi nely lyg-tuned consistency. But where an agency' a , engaging in covert actions is giventowide tee diss'cretjoretionn the likelihood of actions contrary The thrust of American foreign policy most celebrated recent example--Chile--_1nAfact ions illustrates just the opposite. There= were consistent with direct Presidential order. Approved For Release 2000/08/30 : CIA-RDP81-00261 R000500030056-7 Approved For Release 2000/08/30: PC.Iy~tDP8e -6J.Q05Q0030056-7 - While the U.S. Bill of i s do the U.S. government has always non-U..S, citizens, i President asserted the concept of iman r-iah:5 in our dent gn Carter has made this a higher priority policy and penalized governments that regularly and systematically violate their own citizens human ctivities, were to a of those same -tnalvl ua , only be inconsistent, our actions would belie the very values that the President's policy proclaims- Moreover, revelations that the U.S. has engaged in of itical assassi-- rights. If U.S. inteli~gence stematic violation of the ri hts engage in regular, s - co ur os t 611WUUF not certain categories of act'on, e-g-, nations, raise deep questions in many Americans mind about neir owngov rnment. - s t,. C A CODE OF ETHICS Productive discussion of a "codoff etafcunklrequi ?~pre- similar preamble that clears away a number and (2) the likelihood t a A interests. i _,i the widespread view at the Agency and elsewhere that it is not possible to devise useful guide-- lines for intelligence activities abroad; the view--prevalent in Congress and the intelli- gence community--that the overriding purpose of guidelines and a code of ethics isato tie down a rogue elephant so as to prevent the suspicion--in the Agency and elsewhere--that anyone who advocates a code of c ethics mustnbeaaout naive moralist with unreal s the effect of such codes on the actual behavior of members of an organization. Among the points to be made here are: A. The Im ortance of Guideline ai .ndoa `once of guidelines for i ntel l i gence home emerges from the juxtaposition torgdarante facts 1 (1) the necessity for cla oante objectives; national security and advance important foreign p h t clandestine activity will violate conceptions: Approved or R ease 2000/08/30 : CIA-RDP81-00261 R000500030056-7 an important U.S. values Approved Fo1rhRej? , O%W3A: I pF_.S1-QQ 6 OO08OOO30056-7 that can be served by clandestine activity and the. important values that can be violated by clandestine activity must be addressed by a system of guidelines that determines how competing values are to be weighed in specific cases. The purpose of a code of ethics (or system of guide- lines) is to motivate, shape, and constrain the behavior of professionals in the intelligence community in ways that will restore public confidence in lawful intelligence and give intel- ligence officers ride in their fir , ,f,.Ssion? More specifically,. the purpose of a code of ethics is twofold: positively, to inspire intelligence professionals to courage, inventiveness, and effectiveness in performing one of the most important and critical functions of American government; negatively, to restrain behavior from infringing basic rights and other important values. The positive and the negative are two sides of the same coin. B. The Possibility of Useful Guidelines. In talking to people at CIA and elsewhere, I ve been surprised to dis- cover how many people believe that it is not possible to devise useful guidelines for CIA. Some base this conclusion ` on little more than the conviction t But a "~' nclusio hi n s co number of more thoughtful individuals come to t after hard thought about the extraordinary diversity of circumstance in which clandestine action may be taken, and the inherent ethical ambiguity of activity of this sort.. This view was stated pointedly by Ambassador Harlan Cleveland in a speech at the Agency last year when he said: "A written code of ethics can never be comprehensive enough or subtle enough to be a satisfactory guide to personal behavior as a public servant. General prescriptions, whether in the -Form of dos or don'ts, are bound to be so general as to be useless or so specific as to be unworkable." Having walked around this problem more times than I like to admit, I can give you an ambiguous answer to at least one question. Ambassador Cleveland and other who argue that it is not possible to devise useful guidelines for the intelligence community's activities abroad are incorrect. Those who answer "no" to the central question have been misled by too narrow a conception of the problem. Approved For Release 2000/08/30 : CIA-RDP81-00261 R000500030056-7 My grounds for confidence about the possibility of App oiwdfor lllea ec2DOO1881 :0(CIAaRDp8 ?026$R90050? "056-7 xis.. Though nowhere stated as such, or assembled in precisely that form, the body of law, executive orders, internal regulations, and informal mores governing CIA do constitute a network of guidelines. These guidelines [Tlay floc hP;ar at4n.L noun to he. Nonetheless, in the day-to-day operation of the Agency, these guidelines provide important, useful direction to, and restrictions on Agency activity. For example, why does the Agency not target U.S. citizens for clandestine collection within the U.S.. (or when it does so, stand in clear violation)? Because the legisla- tive charter embodied in the National Security Act of 1947, as amended, states "the Agency shall have no police, supoena, law enforcement powers, or internal security functions." Why do station chiefs not use missionaries in foreign countries for cover? Because a DDO log notice declares missionaries off limits. Why do case officers not enter into contractual relations with working members of the media? Because you and your predecessor issued internal regulations prohibiting this. Why are case officers so protective of their agents? Because of their conception of their professional obligation and ,personal relationship of trust with another individual whose life they have compromised. C. The Role of Guidelines and a Code of Ethics. Any effort to write guidelines will contain a list of dos and don'ts. But that list of dos and don'ts, whether embodied in internal regulations like DDO log notices, or perhaps even a formal code of conduct for intelligence professionals, will not stand alone. In fact, it will be but one element in a " ystem of guidelines." This system of guidelines includes not only a clear statement of rules, but also a process for appl~inig the rules to hard cases, a process for enforcing compliance, and an independent process for oversees the community's practices. This concept of a system of guidelines serves as the organizing principle for the discussion: ~- Rules (from general principles to specific guidelines, and perhaps even a formal code of conduct); -- A Process for Applying the Rules; -- A Process for Enforcing Compliance with the Rules; -- A Process for Overseeing Practice in Rule- writing, Application, and Enforcement. Approved For Release 2000/08/30 : CIA-RDP81-00261 R000500030056-7 nt to assemble wa may is ackage, one enr to try 1 ~{ } f 14-1~81sqt500030056-7 ~ ~~~~ h ~i roue e of conduct- uc a worki nor ? orma l CO d y - ~rofes- gF nCe i to formulate a formal Central values for i nt~ c hard cases articulate a half dozen al s and then provide some i 1-at i ve ex~r~i1pl ld es be ofweighed and shou tem sion competing values with suggestions about how traded off in these specific instances- an trad executive orders; ethical will include ray no assassination; notices; etc.--this system of rules ethical nregUl -laws that log internal regulations; cannot be specified to the level of detail ofthe intelligence n ui rules to Because situatisexercisecdriscretiondin app lying between professional mustst frog to hes. The virtue of the rules is toid.ti ance in attemp on hard ard cas hard cases and to provide some g easy and considerations that bear weigh the multiple and competing cases. ntelligence Community Be Defensive Abou Should the I ~ The ethos of the community that D. Guidelines an`d a Code of Ethics_ I believe, however, pro f i l e and be defensive. that to take a low a strong case can be made for talon the guilty As the accused--and-an agency evidently g ious abuses--the Agency is the target of some ser especially in Congress. of many reformers, Refensiveness u has guidelines the Agency In fact, the system tiaver the last been developing, partcularly ears--when tidied up and though several tfully Y presented--can be shown to be `~ofoguidance in of guidance thoughtful, and effective a system as there is for any major agency If the Agency including especially the Congress. cressive in ex lorin took the offensive and was a the case or t e exsen.. the t. 5' in making lawful tial role of intelligence, specifically intelligence in a free society, and in arguing the stem of guidelines will case that the emerging sy it might both restore guarantee lawful intelligence, i eternallY and the the standing of the community morale of its members internally- hors under the the intelligence community la Indeed, Today ow of revelations rterabacksyawe cann now mseer in as Monday-morning qua mmunit s u clearly that the intelli through the 19 s'... an o en democratic societ was anomalous. You have moved vigorousiy to f essent,a Approved For Release 2000/08/30 : CIA-RDP81-00261 R000500030056-7 Approved Fors 6-7 pos (as e? ial guidelines forte an example for all major agencies of government should at least be explored. III. ELEMENTS OF A SYSTEM OF GUIDELINES The organizing principle for this discussion is a "system of guidelines." The key elements of this system are: A. Rules -- General Principles -- Specific Guidelines B. A Process for Applying the Rules C. A Process for Enf orcing Compliance with the Rules D. A Process for Overseeing Practice in Rule-Writing, Application, and -Enforcement RULES A. General Principles. Rules for the intelligence community consist of both general-principles and specific guidelines. Most important are the general principles that establish the context fororespecific argument. While it is possible to multiply principles, I have tried to formulate the minimum number that could serve to establish a working context. *Recall this system of guidelines is one part of a much larger that includes recruitment, selection socialization, and training through assignment, career development, continuing education, rewards and punishments, to exit. This entire system shapes, motivates, and restrains the behavior of members of the organization. Approved For Release 2000/08/30 : CIA-RDP81-00261 R000500030056-7 1. Es iona e is an extraordinary~remedy: because Approved ctra ' %-4 7 '-p 'R0QMQO&A056-7 values and interests, clandestine action should be under- taken only as an extraordinary remedy, and where the benefits of the clandestine action, and the advantage of pursuing the objective through clandestine means rather than overt means, have been clearly identified. advocating clandestine action. ti -. It puts the burden of goof on those c c V ' !This principle establishes a (Contrary to the impression created by recent revelations, clandestine activity has mainly been considered and authorized as an extraordinary act. The most dramatic indicator is budget. Even Marchetti and Marks, whose thesis, is that American intelligence is dominated by covert action, estimate the budget for covert 'action in '75 to be only $750 million. In discussing this subject, I've found that many seeming lIinformed New York Times readers, and even some writers, believe that the covert action budget must be many billions.) 2. The most fundamental principle is that the President (and government) should not undertake actions in secret that could not in principle be defended to the American -1iubl i c and meet the test of political viability. There is a view that the American people are not sophisticated enough to appreciate the need for covert action, don't understand the exigencies of state, and are naive about the dangers inherent in the world. While there is considerable evidence to support this view, the U.S. government is constructed on a quite different presumption.. That presumption is that, on balance, and- v r time, a process that forces the President and the government to seek and win the support of the American people to sustain a chosen course of action is preferable to any other process yet invented for selecting and sustaining public policy. The record is mixed.. But on balance, and overall, this democratic presumption has a better batting average than any competitor. (Recall Churchill's remark: democracy is the worst form of government- except for all the others.)* *NOTE: Political viability is not measured by a direct poll of public opinion. In our system of government, political viability is determined by an amalgam of views of the President, Congress, courts, and citizens. Approved For Release 2000/08/30 : CIA-RDP81-00261 R000500030056-7 What does this principle imply for clandestine activity, that is covert a `io Approved FoflReLeasav2*/p,$/;9re #A6## 0q6 0056-7 einq known that we are the influencing agent) and clande stine collection (the effort to collect information that others do not want us to have and without anyone knowing that we have collected it)? In the abstract, the implication is clear: the U.S. government should not undertake actions t hat ul d not in on nci le win the s~rn.~ tk_~p,a l peop e ( i f 1 . V, r no~eibl p n haves f,rl 1frank nu .,.,. _ z__-v jzi ----,-_ bb l i s di C('IICCinn Th e activity must by definition be secret Janducannot utherefor?e be subjected to the full, open processes of public debate to determine whether it meets the test of political viability. This dilemma poses the institutional challenge: to devise principle 3. 3. Because clandestine activity cannot be subjected to the normal test of open public debate, it mus be authorized and overseen by an app-p-riate surrogate rocess. _ a process- that engages surrogates for the interests that would participate in full public discussion; involves them in a serious, disciplined private review.of proposed and ongoing covert actions; and requires their support in ways substantially equivalent. to the normal democratic test of political viability. No easy task. The present process for authorizing clandestine activity, for overseeing the process, and for checking abuses represents at least one attempt to meet this prin- ciple. The question is how well current procedures meet this test and how they can be improved. Two slightly more specific implications of this principle are: V7 This is clearly controversial; and contrary to the practice of the past. According to this principle, the U.S. is going to provide clandestine support, (1) that_clandestine activity must be consistent with openly announced substantive olic-les vn-"o U etc_ 1.1:?s tnalhave Been established by the norma en process of government; and (2) that the President and Director of CIA should be prepared to defend in public the broad categories of clandestine activity in whictT the U.S. en a es, though not the specific actions themselves.. Approved For Release 2000/08/30 : CIA-RDP81-00261 R000500030056-7 Approved F&rRdt#agea2bDCV/0 /39s: C1A~ r8~'P- drl 'tion parties are being funde y aer na general class of action should be defended in public debate. This does not mean, however, that the U.S. government's action in funding any particular party should at the time have to meet the test of public debate (since it will not be possible to make public all the information on the basis of which a full and open debate could take place). It has sometimes been proposed that we add a fourth principle of publicity,sometimes stated as follows: if a particular clandestine activity were made public, would you be proud of your action? I find this proposed principle h t. unsatisfactory. It is both too loose and too tig STATINTL On the one hand, the principle is too loose: individuals' notions of pride differ. would be proud to have made public many actions that most Americans find offensive. On the other hand, the principle is too tight and restrictive in that clandestine action-is by its nature secret and unacknowledged. The grounds for the decision to engage in clandestine activity in a particular case, and the circumstances that surround that decision, encompass many facts and factors that cannot be made public. Conse- quently, it is not possible to present the full case in - public for any particular action. Absent that full case, the public does not have full grounds for judgment. Con- sequently, the public test of support and "pride" is not appropriate. That's the point addressed by the surrogate process above. B. specific Guidelines Each class of clandestine activity presents a juicy target for endless juridicc.l ai-gumeat--both pro and con. You will recall the lengthy debate about the Harvard CIA guideline requiring professors to inform their dean about any paid work they do for CIA. As an academic, I find it difficult to resist joining such arguments, for instance, about whether the intelligence community should be permitted to try to overthrow democratically- elected governments, and if so, under what circumstances. I have lengthy notes on both sides of proposed guidelines about a half dozen major classes of clandestine activity. Approved For Release 2000/08/30 : CIA-RDP81-00261 R000500030056-7 For the purpose of a broad view of the forest however App rTFOIr Rele"eo4V(DGi08t3Ol:iCiA-FQnI -W2tI &&Q04056-7 major i sues to be weighed in choosing any specific guidelines? and to offer some general criteria that should be applied in choosing specific guidelines. The major issues to be weighed devising specific guidelines are four: (1) the pros and cons of s atute y. executive order v. internal regulation; (2) the relative merits of fl_ at prohib__;~s v. prohibitions subject to wa? ver_ (3) the advantages and disadvantages of engaging m.Qr_external surronates (courts and Congress) at successive levels of specificity; and (4) the imp of each guideline in con- straining abuse, encouraging undue timidity, and motivating professionals in the intelligence community to the desired mix of initiative, inventiveness, and restraint. Each of these issues invites lengthy argument. None is easy to weigh in specific cases. But for the sake of brevity, I will propose three general criteria for choosing specific guidelines--criteria that should, I believe, be widely acceptable.. 1. The necessity for flexibility. The appro- priate course of action will vary substantially with cir- cumstances. For example, measures that should not be undertaken in peacetime or against a democratic state, should be permitted during actual or threatened hostilities or against a totalitarian regime. Circumstances change. Guidelines must therefore preserve flexibility to adjust to circumstances and to modify rules and procedures as conditions change. (This criterion has strong implications for the balance between legislative statute and executive order subject to Congressional veto.) 2. Guidelines should express f~_ xs. in wags that establish strong presumptions al ainst vi ofatkon of those values. Clandestine activity runs a constant risk of violating important American values. Guidelines should therefore state these values as clearly as feasible in order to affirm the values and to place the burden of proof on whoever proposes to risk harming the value. Approved For. Release 2000/08/30 : CIA-RDP81-00261 R000500030056-7 3. Except u-~~ ~~~~u , . the yuVr_X it-- that values com circumstances. Recognizingcess that allows appropriate Appr pete, ?avtl F BI@A ' 16 RUP -0026+1AO1~~~ 3~~c2 individuals to balance e thus make exceptions to the guidelines in extraordinary situations. The specific guidelines proposed in the Senate Select Committee's charter legislation include flat legislative prohi- bitions on: assassination of foreign officials; special activity that has as its objective or is likely to result in: the support of international terrorist activities the mass destruction of property the creation of food or water shortaces or floods -- the creation of epidemics or d: series 1 or other the use of chemi cam Dl~ - weapons in vi o of treaties verth the violent country the torte of individuals the support of any action, which violates conducted by the police, foreign intelligence, or internal security forces of any foreign country; the use for certain intelligence activities of onsor persons who follow a full-time epansorship and who travel to a foreign country under part of a U.S- su rornote education or government program designed to p ural.._aLIai rs ; the arts organi zati on- anynU.Sacmedi vities the use for intedttoelli jt~rnal ls~s, cce Approved For Release 2000/08/30 : CIA-RDP81-00261 R000500030056-T In my view, each of these prohibitions does re i ect. sou' -however ill expressed. These prohibi- tions also appro fa ~-'Y'/M @ tCIArRQPR11 2611 OO~06 3oO56-7 writing specific implementing regulations. The chief probl m with these guidelines is their fora. If stated as presum_ iois rather than flat prohibitions, accompanied by an apprupr1Q4; V, a reformulated (and, ohopes, more felicitious formulation of the values) should be acceptable. Though the draft charter does not state prohibitions or presumptions relating to col1ecti you m hgat want :a_yQse l e - m -_ l e..s i ntrusi ve means of col l ecti o ar~nto'=-P``? reed to more intrusiVP means (thus gathering ir-forma- tion rom unwitting individuals is preferred to unobtrusive electronic surveillance whi h is, preferred If - to breaki g and e teri g e1evant for internal Agency r A final point may e m re purposes. If one takes each class of clandestine activity, for example, "propoganda" or "economic warfare," discovers whclabarate and specific guidelines now exist, one quickly network of guidelines from e to DDO Log Notices. For could array these giwethncarefulyattendtianetaE~thexma~artissues reviewed and refined identified above. V. A PROCESS FOR APPLYING THE RULES The process for authorizing special activities,, special collections and counterintelligence is spelled out in Execut:', prouided_oE the sur- stagef cothat uld beprocess Order 12036. Abrief eachsketch rogates involved VI. A PROCESS FOR ENFORCING COMPLIANCE WITH THE Rill-ES The Inspector General, the General Counsel, and the, 1QEL VII. A PROCESS FOR OVERSEEING PRACTICE IN RULE-WRITING APPLICATION AND ENFORCEMENT The Senate and House Intelligence Oversight Committees, especially if they would get their acts together. Approved For Release 2000/08/30 : CIA-RDP81-00261 R000500030056-7 p several presumptions. f'UJ exa Approved For Release 2000/08/30 : CIA-RDP81-00261 R000500030056-7 Sections V, VI, and VII can be filled out whenever You like.. 16 Approved For Release 2000/08/30 : CIA-RDP81-00261 R000500030056-7 Approved For Release 2000/08/30 : CIA-RDP81-00261 R000500030056-7 ADDITIOtJS To ALLISON CONCEPT Section on public as an oversight process policy of openness limitations on sharing with public Acknowledgement of Limits on FOIA Sanctions against disclosure III Section on rewards ecial role and sacrifice of Acknowledgement of special intelligence professionals System of incentives Medal s Retraining program for retirement Retirement program Section on domestic activities FBI-CIA jurisdiction Special concerns for rights of Americans Relations with American institutions Press Peace Corps Cover Electronic surveillance - domestic Approved For Release 2000/08/30 : CIA-RDP81-00261 R000500030056-7 Approved For Release 2000/08/30 : CII-RDP81-00261 R000500030056-7 IV Section on liaision Limited to intelligence, not security Need to respect privacy 22 May 1978 STATINTL cc: Approved For Release 2000/08/30 : CIA-RDP81-00261 R000500030056-7