REPORTING ACTIVITIES OF QUESTIONABLE LEGALITY OR PROPRIETY TO THE SSCI AND HPSCI

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81M00980R000900050002-6
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 9
• Document Creation Date: December 15, 2016
• Document Release Date: June 4, 2004
• Sequence Number: 2
• Publication Date: October 18, 1978
• Content Type: MF

MEMORANDUM FOR: Director of Central Intelligence
VIA: Deputy Director of Central Intelligence
SUBJECT: Reporting Activities of Questionable
Legality or Propriety to the SSCI and HPSCI
REFERENCE: Letter to you from the President, dated
19 September 1978
1. Action Requested: Your review and approval of the
attached proposed letter to Bob LipshuLz.
2. Background: A few days ago at the morning staff
conference you referred to a recent letter from the Presi-
dent, copy attached at Tab A, prescribing the manner in
which Agency activities of questionable legality or propriety
are to be reported to "the appropriate congressional com-
mittees." You expressed some concern about this letter
and asked me for a memorandum setting forth my views.
3. The President's letter implements Section 3-403
of Executive Order. 12036, which provides in relevant part
that:
Under such procedures as the President may
establish and consistent with applicable author-
ities and duties, including those conferred by
the Constitution upon the Executive and Legisla-
tive Branches and by law to protect sources and
methods, the Director of Central. Intelligence
and heads of departments and agencies of the
United States involved in intelligence activities
shall:
Report ina timely fashion to the Permanent
Select Committee on Intelligence of the House of
Representatives and the Select Committee on
Intelligence of the Senate information relating
to intelligence activities that are illegal or
improper and corrective actions that are taken
or planned.
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to the.fl~ Fn~jSea00$eI1~f`y3-
403, and there is no doubt that the President's letter in
fact was drafted by the Board. I know that because the
letter is very nearly identical to a draft that Burt Wides
sent me for comment last April. The earlier draft, together
with Burt's note to me dated 4 April, are attached at Tab B.
The comments I sent back are attached at Tab C.
5. The September letter differs from the April draft
only in that (a) the last two paragraphs have been added,
and (b) the first paragraph does not indicate that similar
letters were sent to other heads of intelligence agencies. I
assume that the letter change is merely stylistic and that
in fact such other letters were sent.
6. At this juncture I doubt there is anything to be
gained by taking an appeal. The two new last paragraphs go
some distance towards meeting the objections I raised to the
April draft. For the rest, I think we can live with these
procedures. Whether the SSCI and HPSCI can live with them,
however, is another question, and it is one that takes on
extra importance in light of the commitments that you made
during your confirmation hearings (see page 39 of the hearing
transcript, copy attached at Tab D). As I see it, even
apart from your commitments, the oversight committees would
be plainly entitled to know what reporting procedures have
been established by the President. Under the circumstances,
given that the established procedures do not coincide in all
respects with your commitments, the case favoring disclosure
to the committees is that much more compelling. I would
therefore favor a note to Lipshutz asking clearance to make
copies of the President's letter available to the SSCI and
HPSCI.
7. Recommendation: That you sign the attached letter
to Lipshutz.
Anthony A. Lapham
OGC:AAL:sin
1 - DDCI
1 - ER via Ex Secty
1 IG
1 - OLC
1 - OGC
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 ``~~ Yhc I)iredor
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21 0t'T 19"78
The Honorable Robert J. Lipshutz
Counsel to the President
The White House
Washington, D. C. 20500
The President's letter of 19 September, copy enclosed,
implemented Section 3-403 of Executive order 12036 by estab-
lishing a standard that prescribes the manner in which
Agency activities of questionable legality or propriety are
to be reported to the "appropriate congressional committees."
I assume that for these purposes the "appropriate congressional
committees" are the Senate Select Committee on Intelligence
and the House Permanent Select Committee on Intelligence,
there being no others mentioned in Section 3-403.
As you know, during my confirmation hearings before the
SSCI in February 1977, I made certain commitments with
respect to the reporting of questionable activities. A copy
of the relevant portion of the hearing transcript is enclosed.
Even apart from these commitments, I believe the two over-
sight committees would have a clear riqht to be informed
regarding the reporting standard established by the President.
Under the circumstances, given that the President's standard
does not coincide in all respects with my commitments, it
seems to me imperative that the committees be informed.
Accordingly, it is my suggestion that you transmit copies of
the President's letter to the SSCI and HPSCI, together with
a covering note of some sort, or that you authorize me to do
so. I would appreciate it if you would let me have your
reaction to this suggestion.
Yours,
/s/ Stansfield Turner
STANSFIELD TURNER
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THE WHITE HOUSE
WASHINGTON
September 19, 1978
To Admiral Turner
As I stated in my July 27, 1977, letter to
Senator Inouye, I consider intelligence abuses to
be of such import that I intend to deal personally
with such matters, including the obligation of the
Executive Branch to inform the appropriate congres-
sional committees. Therefore, I am writing, pursuant
to Section 3-4 of Executive order 12036, to indicate
the appropriate procedures for reporting to congres-
sional committees ". . . information relating to
intelligence activities that are illegal or improper
and corrective actions that are taken or planned."
The CIA should continue to report to the Intelligence
Oversight Board activities which raise questions of
legality or propriety. The JOB will review the matter
and, if it raises a serious question, report it to me
with its recommendations. If you feel that the gravity
of a matter is such that it should be reported directly
to me, the information also should be provided at the
same time to the IOB so that it can begin its review
promptly.
After considering the reports of the CIA and the IOB
and, on questions of legality, the judgment of-the
Attorney General, I will review any determinations
that an activity is illegal or improper, the proposed
corrective action, and the manner and timing of report-
ing to the Congress. You will then make the appropriate
report on the matter to the congressional committees,
except when I communicate the matter to them directly.
In the case of questions of legality or propriety which
you believe are so minor that they clearly do not need
to be brought to my attention, you should continue to
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inform congressional conunittees, as well as the
IOB, in a timely manner. You may, of course, at
any time suspend an activity which raises a serious
question of legality or impropriety, until a final
determination is made whether the activity should
be modified or discontinued and what other corrective
action is required.
If in your judgment special circumstances require
reporting an illegal or improper activity to Congress
within a time period shorter than those outlined here,
you should so indicate at the time the matter is re-
ported to the IOB or to me.
In any event, you should discuss this concern either
with myself or the lOB before undertaking to report
the matter to Congress ahead of this timetable.
Sincerely,
Admiral Stansfield Turner, USN
Director of Central Intelligence
Washington, D.C. 20505
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THE WHIZ-E HOUSE
WASHINGTON
April 4, 1978
bGc 7 ;? 0
1 s-78
NOTE FOR TONY LAPHAM, CIA.
Here are the Board's proposed guidelines
which I discussed with you, for reporting
intelligence abuses to Congress under
Section 3-4 of the new Executive Order. It
was suggested that the President would
probably prefer to prescribe them in a letter
to the principals, rather than a more formal
promulgation. Accordingly, they are in
that form.
Please let me know the Agency's views on
this, unless the Director wants to communicate
them directly to Tom Farmer.
Burt Wides
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IOB DRAFT
April 3, 1978
Procedures for Implementing Section 3i4 of E. O. 12036
To Admiral Turner (similar letters will be sent to SECDEF & Director, FBI)
As I stated in my July 27, 1977 letter to Senator Inouye, I consider
intelligence abuses to be of such import that I intend to deal personally
with such matters, including the obligation of the Executive Branch to
inform the appropriate Congressional committees. Therefore, I am
writing to you and the other heads of intelligence agencies, pursuant to
Section 3.4 of Executive Order 12036, to indicate the appropriate
procedures for reporting to Congressional committees ". . . information
relating to intelligence activities that are illegal or improper and
corrective actions that are taken or planned. "
The CIA should continue to report to the Intelligence Oversight Board
activities which raise questions of legality or propriety. The IOB will
review the matter and, if it raises a serious question, report it to me
with its recommendations. If you feel that the gravity of a matter is
such that it should be reported directly to me, the information also
should be provided at the same time to the IOB so that it can begin its
review promptly.
After considering the reports of the CIA and the IOB and, on questions
of legality, the judgment of the Attorney General, I will review any
determinations that an activity is illegal or improper, the proposed
corrective action, and the manner and timing of reporting to the Congress.
You will then make the appropriate report on the matter to the Congressional
committees, except when I communicate the matter to them directly.
In the case of questions of legality or propriety which you believe are so
minor that they clearly do not need to be brought to my attention, you
should continue directly to inform Congressional committees, as well
as the IOB, in a timely manner. You may, of course, at any time suspend
an activity which raises a serious question of legality or impropriety,
until a final determination is made whether the activity should be modified
or discontinued and what other corrective action is required.
(for President Carter's signature)
DRAFT
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 -- LCf1fll IIIICLUL',CIU C lb~C~ ~l}'
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7 April 1978
NOTE FOR: Burton V. Wides, Esq.
Intelligence Oversight Board
FROM: Anthony A. Lapham
General Counsel
SUBJECT: Procedures for Implementing Section 3--403 of E. O. 12036
1. I think the proposed draft letter for the President's signature, outlining
procedures implementing Section 3-403 of h. O. 12036, does not represent the
wisest approach and will be objectionable both to the SSCI and the I IPSCI.
2. In the first place, the letter does not unequivocally state that the two
Committees will receive intelligence agency repo,-ts concerning illegal or
improper activities. Direct reporting would be authorized by the draft only
with respect to "minor" questions of legality or propriety. More major matters
would be reported only if they first reached the President, which they might
or might not, and then only in a manner and at a time specified by the President
on a case-by-case basis. Aside from the negative reactions they are likely to
arouse in the two Committees, these procedures would be cumbersome and diffi-
cult to apply because of the personal role assigned to the President.
3. I would favor a simpler approach, namely, a procedure providing that
reports regarding questionable intelligence activities are to be furnished to-
the two Committees within 30 days of the dates on- which the same matters are
reported to the IOB. That 30-day interval would allow time for IOB and Justice
Department review, and for such corrective action as might be required.
4. If the Committees were to send us quarterly requests for reports on
questionable activities, is it not your view, as it i:; mine, that we would have
no good choice except to comply? And if that is so, then what is to be gained
by adopting the procedures outlined in the draft letter rather than the simpler
procedures that I suggest? I think there is nothing to-be gained.
5. John Waller has seen this note and indicated his agreement with the
views expressed .
STAT
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The CHAIRMAN. The committee will stand in recess for 15 minutes.
[A. brief recess was, taken.]
The CHAIRMAN. Let us now resume our hearings.
Senator IIu ddleston ?
Senator HUDDLESTON. I have no further questions, Mr. Chairman.
The CHAIRMAN. Senator Mathias.
Senator MATIIIAS. Admiral, under Executive Order 11905 the Gen-
oral Counsel of the Central Intelligence Agency is required to make
reports to the Intelligence Oversight Board with respect to any im-
proprieties that may come to his atterition within the Central Intelli-
gence Agency. Now, my question to you is, would you, as DCI, provide
this committee with the substance of those report:;-and I am careful
to say the substance, having in mind our colloquy this morning as to
certain fine points, but with the substance of those reports, so that the
committee can carry out the oversight, function with respect to any
improprieties which might arise in the future.
Admiral TURNER. Yes, sir.
Senator MATIIIAS. Now, in the same connection, Executive Order
11905 provides for the Intelligence Oversight Board to report to
the President any activities which it deems to be improper and which
it discovers within the intelligence community as a whole.
Will you, as Director, provide this committee with the substance of
those. reports, so that the committee can carry out its oversight func-
tion again?
Admiral TURNER. Yes, sir.
Senator MATHHIAS. So that we get it at two different sequential
stages.
Admiral TunNEu. I see the difference you are--
Senator MATIUAS. In the event that it moves to two different,
sequential stages.
Admiral TURNER. Yes.
Senator MATHIAS. Well, I am very gratified to have your unequivo-
cal answer to those two questions.
Admiral TURNER. I may be in for unequivocal problems, but I
will--
Senator MATIHAS. Well, I don't expect that.you will. I hope that we
won't have such questions arising, but I think it is of the greatest
importance for this committee to be advised of them if those problems
do exist.
Now, turning to another question, in our original study of the intel-
ligence community, one of the most difficult problems that we observed
was the lack of statutory charters governing the activities of different
elements of the intelligence community. Where there was no statutory
charter. the boundaries of jurisdiction were very difficult to define.
They could lack permanence. Individuals who might be affected by the
activities of the community would find it difficult to ascertain exactly
where their rig lets began and where they ended.
It has been a 'subject of concern in the Congress that we should
develop statutory charters for the different elements of the community
that are not governed by charters at this time.
Do you have any problem in working with the Congress in the
development of that kind of statutory base?
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