CIA VIEWS OF S. RES 400

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00759R000100160008-1
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 12
• Document Creation Date: December 16, 2016
• Document Release Date: January 24, 2005
• Sequence Number: 8
• Publication Date: May 28, 1976
• Content Type: MF

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28 May 1976
MEMORANDUM FOR: John O. Marsh, Jr.
Counsellor to the President
STATINTL FROM:
Acting Legislative Counsel
SUBJECT:, CIA Views of S. Res. 400
This memorandum is CIA's response to your request at the 25 May
ICG meeting that each agency summarize its views on S. Res. 400. CIA
views are part I of this memorandum. The passage of S. Res. 400 requires'
some decisions and action by the Executive branch and by individual
agencies. Part II of this memorandum enumerates some areas which need
Executive branch attention. The Director has not reviewed this paper, and
therefpre this should be considered a working draft.
I. OPPORTUNITIES AND PROBLEMS
A. Both Mr. Bush and Mr. Colby have made strong statements
supporting the conc ept of--strong and effective congressional oversight.
During his 31 March testimony before the Senate Rules Committee on
S. Res. 400, Mr. Bush said-
"The Central Intelligence Agency welcomes strong and
effective congressional oversight. We have a great deal
to gain from it. We gain the advice and counsel of knowledge-
able Members. Through it, we can maintain the trust and
support of the American people. We will retain this support
only so long as the people remain confident that the political
structure provides clear accountability of our intelligence
services, through effective Executive and congressional
oversight. "
Intelligence oversight committees have been criticized, even by members
of the committees, of not adequately performing their responsibilities.
Because of this criticism, these committees were not in a position to
defend intelligence agencies, even in the face of patently ridiculous charges.
OGC Has Reviewed
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A new committee, composed of members not associated with past oversight,
could prove a powerful asset, a powerful defender. Of course the committee
will first have to gain a thorough knowledge of intelligence programs.
B. Another positive aspect of S. Res. 400 is its recognition that
Congress must find the means to halt the unauthorized disclosure of classified
information by Members and staff. Section 8 (c) (1) prohibits the disclosure
of information relating to lawful U.S. intelligence activities by individual
Members and staff. Section 8(d) directs the Select Committee on Standards
and Conduct to investigate any unauthorized disclosure by a Member
or staff. member . If the Select Committee on Standards and Conduct finds
the cha_rg to be substantiated, it is to recommend "appropriate action such
as censiz.Y-e, removal from committee membership, or expulsion from the
Senate, h the case of a Member, or removal from office or employment or
punishment.for contempt, in the case of an officer or. employee. "
The legislative history of the Resolution, particularly its consideration
by the Government Operations Committee, shows concern about the Senate's
responsibility to discipline its own Members, especially because of the Speech
and Debate Clause of the Constitution. Senator Huddleston, a member of
the new committee, was instrumental in placing disclosure restrictions in
the Resolution. Although it remains to be seen whether this spirit will
prove stronger than traditional congressional reluctance to chastise or
discipline another Member, the Senate is on record as acknowledging its
responsibilities in this area.
C. The Resolution does not provide for the exclusivity or concentration.
of oversight which would assure that exposure to such sensitive matters .
would be limited to the minimum number of members or committees required
to exercise effective oversight. For most agencies, the Resolution simply
creates another committee (a very large one) to delve into agency programs
and activities, without removing jurisdiction from standing committees.
Legislative and authorization jurisdiction for CIA is exclusively the province
of the new committee. However, section 3(c) of the Resolution provides:
"(c) Nothing in this resolution shall be construed-as pro-
hibiting or otherwise restricting the authority of any other
committee to study and review any intelligence activity to the
extent that such activity directly affects a matter otherwise
within the jurisdiction of such committee.
This provision was meant primarily to assure other committees that they
could still exercise a general oversight of the intelligence activities of the
agencies they oversee. For example, the Judiciary Committee would be able
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to review and study FBI intelligence activities. However, the provision does
not exclude CIA, and a floor colloquy between Senators Ribicoff and Pell
(Appendix A) gave a very expansive interpretation to this section. We are
hopeful that the new committee will quickly develop the respect and muscle
to forestall the proliferation of information on sensitive intelligence through
the review and study of CIA activities by other committees. (Of course,
reporting responsibilities under section 662 of the Foreign Assistance Act
remain.)
D. Section 8(a) of the Resolution asserts the right of the Committee
to "disclose publicly any information in the possession of such committee
after a determination by such committee that the public interest would be
served by such disclosure. " Section 8 (b) establishes procedures the Committee
must follow in order to release classified information. These procedures
involve notification of the President, and referral of the issue to the full
Senate should the President personally object and should the Committee
maintain its desire to release the information. Procedurally, this section is
as good as the-Executive branch could have hoped for.
Clearly this section could pose constitutional questions.- The
President's position on the release of classified information by Congress
was stated in his 18 February message to Congress:
"Any foreign intelligence information transmitted by the
Executive Branch to the Oversight Committee, under an injunction
of secrecy, should not be unilaterally disclosed without my agreement.
Respect for the integrity of the Constitution requires adherence to
the principle that no individual member nor committee, nor single
House of Congress can overrule an act of the Executive. Unilateral
publication of classified information over the objection of the
President, by one committee or one House of Congress, not only
violates the doctrine of separation of powers, but also effectively
overrules the actions of the other Houses of Congress, and perhaps
even the majority of both Houses."
Assistant Attorney General Antonin Scalia also addressed this issue
in his 12 March 1976 statement before the Senate Judiciary Committee.
"I would not assert that this [classification by the Executive
branch] alone should prevent publication by a House of Congress.
The need for secrecy is, like most needs, a relative matter, and
merely because the Executive Branch has determined for its internal
purposes that a particular item should not generally be disclosed,
it does not follow that the item should not be published when a I-louse
of Congress considers publication essential for the proper performance
of its functions."
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It is possible that this provision will be called into play only rarely.
Requests for declassification of information by committees have in the past
nearly always been worked out to the satisfaction of both parties. Often only
a few words need to be deleted or altered to "sanitize" a document. On the
other hand, this section could prove a continuing source of discord. Much
will depend on whether the new committee is of a disposition to confront or
to cooperate with the Executive branch.
E. Section 12 of S. Res. 400 requires all intelligence funds to be
authorized in bills or joint resolutions passed by the Senate prior to
Senate consideration of appropriation bills for intelligence activities. It
is not clear what action the. House would take~.on a Senate authorization of
funds which has not been-subject to the authorization process in the House.
An annual authorization of CIA funds is an entirely. new requirement. The
CIA Act of 1949 permits. funds to be appropriated for CIA without an annual
authorization [50 U.S.G. 403(j)] . However, the Act does not preclude an
annual authorization, and the Senate has now determined that there should
be one.
The chief problem this requirement presents from CIA's point of
view is the danger of budget disclosure it entails. The Agency did not
object to giving the new Committee a role in the determination of the level
of our budget and its program content. We urged, however, that this be
done by means which Would give a higher degree of assurance that budget
secrecy could be maintained than does an annual authorization by bill or
joint resolution."
A floor colloquy between Senators Nunn and Ribicoff established that
this new procedure. is not automatically to result in budget disclosure
(see Appendix B). However, despite a 55-33 June 1974 vote against dis-
closure of a single intelligence community budget figure, ten of the thirteen
members of this Committee who have voted on this issue voted for some form
of budget disclosure. Under these circumstances, the Executive branch
must continue to develop convincing arguments and education to assure
maintaining budget secrecy.
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A. POSSIBLE EXE(:, wf WE I3RANCII ACTION
1. Section 3(c) of the Resolution provides that other Senate
committees can continue to review and study intelligence activities to the
extent such activities directly affect a matter within the jurisdiction of the
other committee. This is precisely the grounds on which 11 other
committees and subcommittees in the past year have asserted their right to
access to sensitive CIA matters. It is in CIA's interest that other committees
not gain access to information on CIA activities, and the DCI should consider
urging the Chairman to attempt to restrain other committees from seeking
access to operational information.
2. The jurisdiction of the new Committee encompasses both foreign
and domestic intelligence, The Executive branch opposed this, because
Justice did not want FBI intelligence activities split from the remainder of
the Bureau's operations. Also a factor was the fear that the Committee would
attempt to develop identical standards for both domestic and foreign intel-
ligence activities, despite the entirely different constitutional bases, problems,
and considerations involved. The concurrent jurisdiction arrangement
worked out by Senator Mansfield may have ameliorated Justice's jurisdictional
concerns. It may be wise to develop a paper pointing out the inappropriate-
ness of identical standards for the two types of activities in anticipation of
the emergence of the second problem.
3. Section 662 of the Foreign Assistance Act requires reports on covert
action to be made.to. "appropriate" congressional committees.- The only
Senate committee specifically named is the Foreign Relations Committee.
However, the Armed Services and Appropriations Committees have been
considered "appropriate" committees, and have been receiving section 662
reports. Because covert action is the exclusive province of CIA, there is
a reasonable basis for terminating the reports to the Senate Armed Services
Committee. This would reduce the number of committees exposed to this
information, although it would eliminate a committee which has posed no
security problems. The issue of termination of section 662 reports to the
Senate Armed Services Committee might best be resolved between Chairman
Inouye and Chairman Stennis.
4. CIA attempted in the Government Operations Committee to have
section 662 amended to require reports only to the Appropriations and new
intelligence committees. However, when the Committee converted the
Church Committee's oversight proposal, S. 2893, into a resolution, this
became. impossible. Subsequently, Senators Percy and Ribicoff announced
that they would introduce a bill to amend section 662 in this manner. The
Administra'ion should strongly back such a bill and actively push it. However ,
it might be tactically advantageous to wait until the House of Representatives
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Representative Cederberg, - ---;- - I ""` -J LUk.cu UCttn- ty by
would amend these reporting requirements.
The I-louse would presumably be. reluctant to amend the Act before it has
reached its major intelligence oversight decisions.
B. Staff Clearance
o U
Section 6 of the Resolution provides for staff background investigations,
oaths,lnd written secrecy agreements that the staff member will not disclose
Committee information during or after his employment. The Director of
Central Intelligence is to consult with the Committee regarding these
clearances.- The Executive branch should have in mind, before these
consultations begin, proposed security agreement language, which agency
should conduct the background investigations, and whether or not we should
push hard for polygraphs to be administered to the staff.
C. Disclosure
1. The Executive branch must carefully consider its options in light
of the Senate's assertion of its authority to unilaterally declassify Executive
branch information. One option, asserting our constitutional objections
to this provision, would be to refuse to provide the Committee information
unless it agreed in advance not to disclose it. A second option would be
to try to win the Committee's agreement to narrow the breadth of this pro-
vision. For example, Assistant Attorney General Scalia asserted in his
12 March testimony that in a few situations it would be improper for a House
of Congress. to authorize any disclosure. The examples he gave were:
(1) When the information has been received under an
agreement of non-disclosure.
(2) When the information is protected from disclosure by
statutes, e.g. , classified communications intelligence. We should
seek to have this category include intelligence sources and
methods, although the statute is not as helpful as in. other cases.
Information submitted to the Committee might then be stamped
with special designators in addition to the normal Executive branch
classification. These designators might include "communications
intelligence - protected from disclosure by 18 U.S. C. 798" or
"sensitive intelligence sources and methods information - subject
to the DCI's statutory responsibility to protect this information
from unauthorized disclosure."
(3) When its disclosure has the purpose and effect of
negating or frustrati.'ig action which both I-louses of Congress
have authorized the Executive to perform.
A third option would be met ely to attempt to build a spirit of cooperation
which would enable Lis to avoid disclosure disputes. As previously pointed
out, such disputes have be,- i extremely rare in the past, although a few,
such as the four words released by the Pike Committee, have been well
publicized.
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2. Section 8(c)(1) prohibits the disclosure of information in the
possession of the Select Committee relating to "lawful" U.S. intelligence
activities. Nowhere in the legislative history is there a reference to who
should make the decision whether an intelligence activity is lawful. If
this decision were left to individual members of the Committee, a member
who felt covert action was illegal because it violates international law would
be able to unilaterally leak this information. The Executive branch should
seek Coniraittee agreement that, at a minimum, this determination would be
made by the full Committee in consultation with the Executive branch.
D. President's Representative
Section 9 provides that the Select Committee may permit a representative
of the President to attend any closed Committee meetings. A decision must
be made regarding who should serve in this liaison position.
E. Transfer of Church Committee Documents
Section 10 provides that all records, files, documents, and other
materials in the possession, custody, or control of the Church Committee
should be transferred to the new Committee, Legislative history establishes
that the Church Committee is to live up to its agreements with the Executive
branch for return of documents. The Executive branch should seek the return
of as many of these documents as possible.
F. Reporting Responsibilities.
1. Section 11 sets forth the Senate's view of agencies' responsibilities
to report to the Committee. Specifically, the section states that it is the
sense of'the Senate that the head of each agency should:
a. keep the Committee fully and currently informed on
intelligence activities;
b. furnish the Committee any information or document in
its possession upon request;
c. report immediately violations of constitutional rights, law,
Executive orders, Presidential directives, or departmental or agency
rules or regulations.
The Executive branch should carefully consider the mechanisms and criteria
under which it reports to the Committee, and specifically whether existing
mechanisms and criteria are satisfactory. The new Committee may well ask
for more formalized reporting procedures and may attempt to reach agreem,~nt
with agencies on reporting responsibilities.
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2. Section 11(c) provides that agencies should report immediately
activities which amount to violations of the "constitutional rights. of any
person, violations of law, or violations of Executive orders, Presidential
directives, or departmental or agency rules or regulations. " A reporting
of every violation of minor agency regulations would unacceptably involve
the Committee in day-to-day management of the agencies and is probably
outside the Committee's interest. The Executive branch should consider
uniform reporting standards in this area and should consider seeking
Committee acceptance of these standards.
G. Annual Authorization
Section 12 requires an annual authorization of all intelligence funds.
Intelligence agencies should attempt to reach agreement on how this requirement
can best be fulfilled with a minimum of disruption and additional effort, and
what procedures would permit intelligence budgets to remain secret. Assuming
the Senate continues to support secret budgets, we would then be in a position
to recommend a particular course of action to the new Committee.
H. Special Study
Section 13 directs the Select Committee to make a study of several
matters and to report to the full Senate their recommendations by 1 July 1977.
The Select Committee may omit subjects which. it determines have been ade-
quately studied by the Church Committee. The Executive branch should
determine which of the subjects would benefit from study by the new Committee,
either because they--may--lead to improvements in intelligence activities or
congressional procedures, or because there is a reasonable chance that the
new Committee would overturn unfavorable findings of the Church Committee.
The Executive branch should seek to prove to the Select Committee that
the other subjects have been adequately studied.
I. Legislation
The Church Committee's final report contained 87 recommendations,
over half of which were recommended as new laws. Chad man Inouye has
already announced that the new Committee will proceed to consider changes
in agencies' charters. The Executive branch should be prepared with its
responses to the Church Committee recommendations, as these will no doubt
be the starting point for the new Committee's work. There may al3o be the
opportunity to seize the initiative by publicly endorsing certain recommendations.
STC _,o
STAT I NT
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I. Membership
A. 15 members (plus the Senate majority and minority leaders
who are ex-officio members)
B. 8 designated seats from the following'committees: Appropriations,
Armed Services, Foreign Relations, and Judiciary .
C. 7 members appointed at-large
D. & years maximum continuous term
A. "'All proposed legislation, messages, petitions, memorials,
and other matters" relating to CIA, DCI, intelligence activities
of all other departments and agencies of the Government;
including but not limited to DOD, State Department, Department
of Justice, and Department of the Treasury.- "Legislation"
includes authorization legislation.
B . With the exception of legislation concerning CIA and the DCI,
any legislation reported by the Select Committee shall be
referred for 30 days to a standing committee if the matter
relates to the jurisdiction of the standing committee and the
Chairman of the standing committee so requests. The Select
Committee can get a 30-day referral of legislation reported
by standing committees under the same procedures.
C. Section 3(c) provides "nothing in this resolution shall be
construed as ... restricting the authority of any other
committee to study and review any intelligence activity to
the extent that such activity directly affects a matter other-
Nvise within the jurisdiction of'such committee."
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III. Reports
A. The Select Committee shall make periodic reports to the Senate.
B. Directors of agencies with intelligence activities shall file
annual unclassified reports with the Select Committee on
their intelligence activities and the intelligence activities of
hostile countries. The unclassified reports may be made
publicly available.
A. Staff employees must agree in writing and under oath not to
disclose Committee information during or after employment
with the Committee.
B. All staff members must have a security clearance.
El: Select Committee may disclose publicly any information in
its possession under specified procedures requiring notifica-
tion of the President and a full Senate vote if the President
objects .
-B. No classified information relating to lawful intelligence activities
which the Select Committee has determined shall not be dis-
closed shall be made available to any person by a Member,
officer, or employee of the Senate, except in closed session.
C. The Select Committee may under its established regulations
make information available to other committees or the members
(individual members of the Committee do not have this authority
as they did in the Government Operations Committee version).
VI. Reporting Responsibility
It is the sense of the Senate that the head of each agency should:
a. keep the Committee fully and currently informed on
intelligence activities;
b. furnish the Committee any information or document in
its possession upon request;
c. report immediately violations of Constitutional rights, law,
Executive orders, Presidential directives, or,departrr ental.or agency
rules. I(
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The Senate cannot consider appropriations bills including funds
for intelligence activities, unless such funds "have been previously
authorized by a bill or joint resolution passed by the Senate." All
intelligence activities are included in this authorization requirement.
Under sac---on 3 of the resolution such bills are the jurisdiction of the
Select Committee on Intelligence Activities. A floor colloquy firmly
established that this requirement was not to result in budget disclosure,
if the Senate continues to believe budget secrecy is required.
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