CONSOLIDATING CONGRESSIONAL OVERSIGHT OF SENSITIVE INTELLIGENCE ACTIVITIES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81M00980R000200050046-5
• Release Decision: RIPPUB
• Original Classification: C
• Document Page Count: 18
• Document Creation Date: December 16, 2016
• Document Release Date: October 28, 2004
• Sequence Number: 46
• Publication Date: October 6, 1978
• Content Type: REPORT

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This package identifies several areas suitable for
Congressional action which would result in a significant
improvement in the security and effectiveness of intelli-
gence. The specific topics deal with:
Tab A - Consolidating Congressional Over-
sight of Sensitive Intelligence
Activities
Tab B - Refining and Consolidating the
Congressional Reporting Require-
ments on Covert Actions (Hughes/
Ryan Amendment)
Tab C - Reform of the Freedom of Information
Act
Tab D - Criminalizing the Public Identification
of Intelligence Officers and Sources
C N ?H NT L
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Tab A - Consolidating Congressional Oversight
of Sensitive Intelligence Activities
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consolidating Congressional Oversi ht
of Sens7t'lve Intelligence Activities
Problem
Congress has a number of legitimate interests in foreign
intelligence -- the efficiency and effectiveness of its
management, the extent of its clandestine activities, its
legislative charter, and the substantive intelligence infor-
mation it produces.
These Congressional interests must be satisfied but in a
manner which protects those secrets which are vital to our
Nation.
The 1947 National Security Act and the 1949 Central Intelligence
Agency Act recognizes that certain foreign intelligence sources
and methods must be protected--the damage of disclosure is not
limited to revelation of a particular piece of information, but
extends to the continuing capability to collect such infor-
mation. (Awareness of our military capabilities might deter
others, but revelation of our collection capabilities would
seldom, if ever, serve our interest.)
The oversight structure should be a further projection of our
country's will and ability to protect sensitive operational
details.
-- The past period of investigations and disclosures
have eroded our credibility to protect sources, a
very serious problem where the anonymity of association
is a condition precedent to cooperation.
-- The fact that foreign intelligence activities are not
within the scope of parlimentary inquiry in many other
countries also shapes the perspective of those foreigners
who cooperate with us with the understanding that their
identity will be protected.
Although the establishment of the intelligence committees in
both Houses has helped consolidate oversight, the enabling
resolutions for these committees specifically recognize the
authority of all other committees to review all intelligence
activities within their jurisdiction which has fostered a
proliferation of requests/demands from countless other
committees involving some of the most sensitive activities of CIA.
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Remedy
- To enhance the projection of our credibility for protecting
sensitive operational sources, the structure of Congressional
oversight should include the following factors:
-- Exclusive jurisdiction for legislation and related
oversight.
-- Exclusive authority to investigate intelligence
activities.
-- Exclusive recipient in the Congress of sensitive
operational e ail , including covert action reporting.
-- Sensitive information provided to the committee would
not be available to non-Members.
-- Strict rules for the secure handling of information
within the Committee, and security clearances and
security agreements with Committee staff personnel
paralleling what has been established by the Senate
Select Committee on Intelligence.
-- Express representation on the committee(s) of Members
from International Relations, Appropriations, and
Armed Services.
Committee membership should serve as the surrogates for the
legitimate interests of other committees and for a fairly
broad political perspective within the Congress.
The Appropriations Committees of both Houses would still be
required to appropriate money from the Treasury to support
intelligence activities. To the extent that this is necessary,
rules such as House Rule XI should be modified to limit access
to the sensitive information provided to justify the budget
solely to the Members and staff of the Appropriations Subcom-
mittees involved.
- Abuses - The Committee should be:
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-- Required to investigate any complaint it receives
from any Member or committee, and to
-- Make the record of its findings available to the
appropriate leadership of the Congress.
This procedure would help assure the complaining Member
or Committee that appropriate action has been taken without
requiring in the process either disclosure or confirmation
of sensitive operational details outside of the committee or
the leadership.
- Legislation - When legislation which may inadvertently impair
sensitive lawful intelligence activities is considered by
another committee, the oversight committee should be used as
the conduit for understanding the problem and seeking an
appropriate remedy with the other committee by using its
investigative and fact-finding resources to assure that
the problem is real and the remedy sound but avoiding revelation
of sensitive details. Again, the record could be made available
to appropriate leadership outside the committee, but the sensitive
details would be preserved from unnecessary disclosure or con-
firmation.
Finally, there must be basic agreement on how foreign intelli-
gence secrets are to be developed with which recognizes the
respective authorities and duties conferred by the Constitution
upon the Executive and Legislative Branches on the DCI to
protect sources and methods.
-- There should be a presumption against requesting
any names of sources, the specific details of
technical collection devices and systems main-
tained in compartmented channels, names of
employees in sensitive positions, names of
persons who may be targets of kidnappings
or assassinations by foreign intelligence
organizations, names of organizations cooperating
with the CIA and detailed information which could
pinpoint any of the above.
-- If in unique cases such information is necessary,
procedures should be instituted to protect identities
and details by use of identity numbers.
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-- There should be absolutely no access to this sensitive
material by non-Members of the committee or personal
staff of committee Members.
-- Access to sensitive briefings and materials should
be governed by uniform rules and the number of
Congressional staffers exposed to such information
should be reduced to the absolute minimum necessary.
-- The need-to-know principle is as important to apply
to the Congress as it is within the Executive.
Congressional support is needed for the concept
that only committee staffers with a defined need-to-know
may sit in on committee briefings where sensitive
material is covered or have access to material after
the fact.
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TAB B - Refining and Consolidating the Congressional
Reporting Requirements on Covert Actions
(Hughes/Ryan Amendments)
` 'IAL
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Tab C - Reform of the Freedom of Information Act
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Reform of the Freedom of Information Act
Problem
- The Freedom of Information Act, despite an exemption in it
for information required to be kept secret in the interest
of the national defense or foreign policy, still presents an
unreasonable and unavoidable interference with
CIA's statutory mission.
In addition, because of the number of requests in excess
of 100 man years plus two million is expended annually at
a minimun in complying with the statute. A request for
identifiable records imposes a burden of searching all of
the Agency's many compartmented file systems for information
which is responsive to the request even though the bulk of
that information will ultimately be excised as a result of the
security exemption and the remaining product in many of these
cases in no way serves the objective of the Act to assure a
better informed public. Rather, even after the cost in
resources at high levels of officer personnel required to
make the determination regarding specific secret information
which is permitted to be expunged from the record, there is
the risk and there has been the damage that the job will not
be accomplished with a 100 percent certainity that vital
information is not being disclosed.
In addition, the Act is used heavily by individuals who are
pursuing a singular cause, many times for profit, e.g., for
writing a book, say on the Berlin tunnel.
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An illustration of the risk is recent testimony by a prison
inmate about how other inmates use the Act to learn the
identities of confidential informants--deletions are some-
times incomplete and with one or more letters of a name
discernible the position of the recognizable letter
within the name permits the determination of the identity
of the informant or narrowing down the possible identity.
FBI Director Webster has recently called for a moratorium
on providing informant information in the FBI files because
of the risk it presents and unless confidentiality
is assured sources of information will dry up. Stories
such as this cause concern among CIA sources as well.
Remedy
It is believed that it can be proven that:
CIA is unique among several Government agencies and
has unique problems with the Act.
- The real and potential damage to the CIA and by extension
the U.S. Government is far and away more significant
than real gains realized by the public, insofar as CIA
information potentially releasable under the FOIA is
concerned.
- Because of the paucity of information provided by the
CIA due to requirements of security, the legislative
intent of a better informed public is not being well
served by CIA participation under the FOIA as it now
stands. Rather, this purpose is served by the ongoing
CIA program of issuing in unclassified form as much of
its product as is possible without jeopardizing sources
and methods.
- An amendment could be fashioned which would exempt certain
"records systems" of the CIA from the FOIA. This would not
completely exclude the CIA from the Act, nor would it result
in less information being released. It would, however, put
in proper balance the amount of information subject to FOIA
searches--greatly reduced--with the end result--the small
amount of information actually released.
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Tab D - Criminalizing the Public Identification
of Intelligence Officers and Sources
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Criminalizing the Public Identification
of Intelligence Officers and Sources
Problem
Over the years, serious damage to our foreign intelligence effort
has resulted from the unauthorized disclosure of information related to
intelligence sources and methods. In most cases the sources of these
leaks have been individuals who acquired access to sensitive information
by virtue of a relationship of trust with the U.S. Government. Current
criminal. law protecting national security or national defense information,
however, is for practical purposes limited-to two general and three -
more restricted statutes. These are the basic. espionage statutes
(18 U.S.C. 793 and 794); and 18 U.S.C. 798 which protects classified
communications information, 42 U.S.C. 2274 and 2275 protecting Restricted
Data, and 50 U.S.C. 783(b) which covers passage of classified information,
by an officer or employee of the Government to any person that-the officer
or employee has reason to believe is a representative of a foreign power.
None of these criminal statutes, either individually or in combination,
provides adequate or effective protection for intelligence information
or intelligence sources and methods. In most instances the Government.
rust prove an intent to harm the United States or an intent to aid.a
foreign power. In fact, the evidence required to establish such an element
of the offense may very well require revelation of additional sensitive
information in open court or,'at the very least, the further dissemination
and confirmation of the information which is the subject of the prosecution.
The obvious danger that additional damage would result from such further
disclosure--a risk the Government is usually unwilling to incur--has.
resulted in a serious weakening of'the deterrent aspects of existing law.
The statutory responsibility charged to the Director of Central Intelligence
for protecting intelligence sources and methods from unauthorized disclosure
is set forth in section 102(d)(3) of the National Security Act of 1947, as
amended; there are, however, no criminal sanctions in aid of :enforcing this
responsibility. Congressional recognition of the need to implement the Director's
statutory responsibility is reflected only in the enactment of a number of
special authorities for the Agency and a number of exemptions from the
disclosure requirements of other laws having general applicability throughout
the Government.
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In civil actions the Government was successful in the Marchetti case
in obtaining a civil injunction against publication of sensitive intelligence
sources and methods based on contract theory. In other words, protection
against disclosure of sensitive intelligence sources and methods was
predicated on a secrecy agreement executed by a former Government erplovee
as a.condition of employment with the Government. Such procedures, however,
are of extremely limited utility to the Government, since initiation of an
injunctive action would depend on prior knowledge of an intended disclosure,
discovery of which would not only be extremely difficult but efforts on the
f
part o
the Government. to obtain such prior knowledge would themselves
be of questionable propriety.
Even though there are no statutes that protect, by way of criminal
sanctions against the unauthorized disclosure of sensitive intelligence
information and sources and methods, there are a wide variety of laws
which protect against disclosure of other categories of Government
information. These include statutes that provide'criminal penalties
against Government employees: who publish or communicate Department
of Agriculture information; who fail to observe confidentiality of
Department of Agriculture marketing agreement information; or who
publish or co-mm irate Department of Commerce information, "diplomatic
code material, Government crop information, confidential business
information, information relating to loans and borrowers, or tax inform
tion.
Although there have been several bills introduced dur-
ing the 95th Congress that-would protect against the unauthorized
disclosure of classified and sources and methods information
generally, this obviously brings into question very basic
policy and legal questions; enactment of such legislation is
always extremely problematic. On the more narrow issue of
legislation to protect against the unauthorized disclosure
of the identities of intelligence officers, the policy lines
are more easily drawn and chances for successful enactment are
therefore higher. For example, in the wake of recent efforts
by Philip Agee and others, to "destabilize" U.S. intelligence
agencies, measurable Congressional support for legislation to
counter such efforts has developed. There are approximately a
half dozen bills before the Congress that would address this
issue, the most significant perhaps being S-1578, introduced
and supported by Senator Lloyd Bentsen (D-Texas). This more
narrow issue of protecting identities, as opposed to informa-
tion generally, has developed more support because, for
example, individuals and organizations such as Agee have
indicated the disclosure of identities is merely one way to
destroy the government's intelligence capabilities. (Agee
himself has stated that if "peaceful protests" do not do the
job, then "those whom the CIA has most oppressed will find
other ways of fighting back".) This very issue is specifically
dealt with in the Charter Legislation now before both Houses.
Remedy
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 CONFIDENTIAL
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CIZI~.;~:ti? SANCTION FOR THE DISCLOSURE
O CERTAIN Iii; F ORMATIO.N . .
The United States Congress has from time to tirtie recognized that there
exist various categories of "information which must be handled only within
authorized chainels. In order to protect such information, various statutes
have been enacted imposes g criminal penalties for unauthorized disclosure.
These statutes make clear the official policy of safeguarding cel-tain irtforma
ti o:t and act as a deterrent to those who would be tempted to. disregard that
pol.icy by putting their own interest before the valid interests. to be~ protected..
The statutes imposing criminal per_aIties have .several different
objectives. Many of them impose the penalty on. the individual---typical.Iy
t.^.e Government e:_:pjoyee--;.n tvhorri the information is entrusted. Others
subject all indivi:.ua' T.to the penalties.. Typical of those that subject the
Government employee to the penalty are:
7 U . S . G . 4-72 - Department of Agriculture employees
who publish or communicate. any
information given into their possession
by reason of their employment shall h e
guilty of a misdemeanor -- 11, 000, I. year
7 U.S.C. 603d -'Department of Agriculture employees who
fail to observe confidentiality of marketing
agreement information - $1, 000, 1 year-
13 U . S . C . 214 - Department of Commerce employees who
publish or communicate information
coming into their possession by reason. of
their employment - $1,.000, 2 years
16 U.S.C. 952 - U.S. Government employees who publish
or furnish diplomatic code material (either
domestZc or foreign code material) who ha-,,,e
access or possession by virtue of their
employment - $10;1000, 10 years
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Ab~rWv t r W ase 20047110:. Gg -MO69 d 501 6 rillfully
impart crop information having the informa-~
Lion by virtue of their office - $10,000, 10 years
18 U . S . C . 1905 - U . S U.S. Government employees who. disclose
18 U.S.C. 1906
18 U.S.C. 1907
18 U.S.C. 1903
confidential business information coming into
their possession in the course of their
employment -- $1, 000, 1 year
- Bank, examiners who disclose loan infornnatio."I --
$5,000, 1 year
- Examiners who 'disclose names of borrowers
from land bank $5,000, 1 year
Examiners under National Agricultural Credit-'
~.... ~.. v.~.w e.v w... . WV' -.k A%f 111 s-M ~.I VJ r?4 ~?. LLe1.FZT~
,borrowers - $5,000, 1 year
18 U.S.C. 1917 Civil Service Commission employees .who-
- - make unauthorized disclosure of certain,
information regarding civil service examina- _ :.
lions - $1
000
1
,.
,
year
26 U . S . C _ 7213 - U. S U.S. Government employees and others who
divulge income tax return, information - $1, 00
42 U.S.C. 1305
$1, 000, l year
employees who disclose tax return information -M.
- Depart ent of Health, Education and Welfare-
50 U.S. C . 783 - U.S. Government employee tivho comrrstxrsicates
classified information to foreign government -.a
$10,000, 10 years
50 U.S.C. App. 2406 Officials perfo:rinin_g functions under the
Export Administration Act of 1969 who
publish or disclose confidential information -
$10, 000, 1 year -
50 U.S.C. App. 2160 - U.S. Government employees -k-,rho disclose
inform.aticn for commodity speculation ?--
$10, 000, 1 year
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 art
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e._arniners. One statute specitecaliy subjects aclass of private individuals
as follows: -
IS
U.v~41(ro-#~I~~/p~P-~1~a~i0004?_5
j9 U.S.C. 15 -Employees of a common carrier who disclns
shipping information - $1, 000 -
Other statutes make all individuals subject to criredrnalpe xalti as
folla.vs; -
7 U.S.C,. 135a 2 f - Unlawful to use for own advantage or =
reveal formulas for insecticides, -- $1,000,
1 year
18 U.S.C. 605-
18 U.S.C.. 793
18 U.S.C. 794
18 U.S.C. 773
35 U.S.C- l8o
50 U.S.C..
A pp .
? Disclosure, for political purposes, of n
of persons 'on relief -? $1, 000, 1 year
,- Obtaining, copying,, communicating national.
defense information $10,000, 10 years
Gather ng or delivering defense information-
to aid foreign governments. -- cleathr or term
Disclosure of certain i:lasslfiecl informs; orp
prejudicial to U.S.. - $10, 000, 10 years,
Y'; illfully disclosing or publishing patent
information - X10,000, 2 years :. -
327 - Unlawful use of Selective Service records
$10,000, 5 years
?- .t.r,. ~.~c. viLaL'~Lb4GL'GGCZ Cuscnosilred?oz certaif ~7~1EfO-r ?d'
regarding acquisition of vessels - 17,{100,
2 years or $101; 0 00, 1 year - -
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C H E
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USE ONLY
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to whom, braw a line+ across column after ea;h r.ammenf.}
Attached is the package pulled
together for Mr. McCorte in
connection with his upc_orninng
meeting with Senator C ra.nstoj-.
Mr Eider is gring; to review it
with re Mrc-Ai-r,E, nr, -;;, n.~ :
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SECRET [ CONFIDENTIAL. ^ INT
SEE ONLY ^ UNCLASSIFIED
U
^' CONFIDENTIAL ^ SECRET
AND RECORD SHEET
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