INTELLIGENCE CHARTER LEGISLATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86-00101R000100020013-8
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 20
• Document Creation Date: December 20, 2016
• Document Release Date: May 11, 2007
• Sequence Number: 13
• Publication Date: August 1, 1978
• Content Type: MF

ASSiiT4NT ATTORNEY CaRp4gved For Release 2007/05/11: CIA-RDP86-00101 R000100020Oi -
!epartment of f ustice
as{iington, 1_f9. 20530
August 1, 1978
MEMORANDUM FOR ANTHONY A. LAPHAM
General Counsel
Central Intelligence Agency
Re: Intelligence Charter Legislation
f 6 i~svC t. i'`/
Attached is our outline of the major policy issues
remaining to be resolved in the Intelligence Charter
legislation. A short statement of the arguments, as we
understand them, is included with each issue. We continue
to feel that the SCC principals should focus attention
on these major issues as early as possible to avoid
expending the Working Group's time on discussions or
drafts that would not reflect the President's wishes.
A copy of the outline and this memorandum is being
sent to the other Working Group Members.
John M. Harmon
Assisp&nt Attorney General
Office of Legal Counsel
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MAJOR ISSUES REMAINING IN CHARTER LEGISLATION
This paper summarizes the major issues remaining to be
resolved in the development of the Administration's position
on intelligence charter legislation. The issues are organized
by category using the groupings proposed by Deanne Siemer at
the July 18 working group meeting.
I. GENERAL ISSUE
A. Drafting of a Separate Administration Bill
Should the Administration discard S. 2525 and draft its
own Intelligence Charter?
Pro: The organization and basic orientation of S. 2525
is inconsistent with much of what is in E.O. 12036.
The Administration should seek a very simple statute
which essentially authorizes the Executive to issue
orders and regulations modeled after E.O. 12036.
Attempts to modify S. 2525 will be fruitless. Major
differences between the"Administration and the Senate
could be highlighted if objections to specific provi-
sions in S. 2525 are made rather than supporting a
different bill.
Con: Any abandonment of S. 2525 by the. Administration
will be viewed as an indication that the Executive does
not care about restrictions and only seeks legislative
authorization for intelligence activities that presently
lack a clear statutory basis. Much of what is in
S. 2525 can be modified to be acceptable to the Admin-
istration. Goodwill.with Congress and the critics of
the intelligence community requires that we work with
the bill-as introduced and seek appropriate changes.
II. COLLECTION OF INFORMATION ISSUES
A. Role of the Attorney General in Approving Regulations
Should there be a statutory requirement for approval by the
Attorney General of agency procedures and regulations? (? 212)
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Pro: The development of a "rule of law" for intelli-
gence activities requires some mechanism for obtaining
consistency among the various agency regulations.
These regulations will rarely be subject to judicial
review. There is no existing body of law which estab-
lishes agreed-upon principles. Review and approval
of agency regulations by a single official, especially
one attuned to legal concepts and protection of
individual rights, will foster sound regulations. The
Administration is likely to want less detailed restric-
tions in statute than are proposed in S. 2525 and
review of agency regulations by the Attorney General
will provide some comfort and assurance to Congress and
the public that the agencies will not develop regula-
tions which are excessively permissive or insensitive
to individual rights. The role of the Attorney General
set out in E.O. 12036 was viewed by critics as an
important safeguard. Failure to include the provision
in a charter would signal a weakening of protections
for Americans.
Con: In virtually no other area of administrative law
does the Attorney General exercise a power of review and
approval over the regulations of another agency. The
concept of AG approval. of intelligence procedures (other
than especially intrusive techniques such as electronic
surveillance) is a new one. E.O. 11905 did not require
such approval. We have had very limited experience
under E.O. 12036 with AG approval. The idea should
not be fixed in statute at this time. There is no
assurance that future Attorneys General will perform a
beneficial function in approving regulations. Future
Presidents may want to obtain consistency in intelli-
gence procedures through some other mechanism. The
Attorney General is concerned with many issues besides
intelligence and is not an appropriate official to
exercise review of intelligence agency procedures.
B. Statutory Categories of Information which can be
Collected
Should a charter set out specifically defined categories
of information (e.&., counterintelligence, foreign intelligence,
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contact, target, potential source), authorize collection of
such information, set standards for such collection, and pro-
hibit collection of any information not included in those
categories even when such collection is by means not involving
interests protected by the Fourth Amendment? ( 213-214,
218-225)
Pro: The roles of the various intelligence agencies
must be strictly limited in statute to prevent future
abuses or improper directives from executive officials
to collect information on Americans. The proper func-
tions of agencies can be identified and categories of
relevant information defined to insure that all intelli
gence collection activities are proper. Specification
of categories will provide a clear legal basis for
collecting information. Statutory categories will insure
that intelligence activities are not-mere "fishing expedi-
tions" but are specifically designed to obtain relevant
information.
Con: The approach taken in S. 2525 is artificial and ill-
conceived. It is virtually impossible to define in
advance all categories of information that might be
relevant to a particular foreign intelligence or counter-
intelligence need. It is even more difficult to define
all the types of persons or activities which are poten-
tial sources of such information. Creation of such
categories will inevitably lead to specific restrictions
in statute on each category and the resultant possibility
of precluding any collection of specific items of
information is unacceptable. The problems of past abuse
can be met by carefully limiting the missions of the
various agencies, making sure that all intelligence
activities are related to those missions, and requiring
that all intelligence or counterintelligence information
collection be focussed on the activities of foreign
powers or persons reasonably believed to be their agents.
Abuses in the past resulted from initiating inquiries
directed at Americans in order to discover a foreign
connection, or prove the absence of such a connection.
This "proving the negative" approach inevitably will
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lead to investigations of dissidents, not foreign
agents. That abuse can be prevented without trying
to anticipate all conceivable categories of relevant
information and constructing a "check list" approach
to intelligence collection. Current concepts limit
collection techniques, not the categories of information
to be sought. Those concepts have proven a feasible
way to regulate activities without preventing neces-
sary investigations.
C. Criminal Standard for Collection of Information
Concerning Unit
d
e
States Persons
Should the charter limit collection of counterintelligence
and/or intelligence information about the activities of Americans
in the United States to persons who may be engaged in activities
which "may involve a violation of the criminal laws of the
United States even though such collection may not involve
techniques which require rep_-' require 1..1ta4llll l~ t~Y lIV fjV V-17-4-1 ., Amy...-1.-...
(?? 213(1), 214(1)) v~~~1x n.1cCLLU1L1CL1L.
Pro: Law-abiding Americans should not be spied upon
by the Government. The goal of intelligence is to
gather information about foreign governments and persons,
as well as those Americans who engage in illegal intelli-
gence activity. Again, past abuses should be prevented
and one element of those abuses was investigating people
who had not broken any law. If we want to prohibit
certain activity, we should make it a crime. If we do
not make it a crime, the government has no business
prying into private affairs to obtain information about
private individuals, even if that information is somehow
relevant to foreign affairs. The criminal standard issue
is of major concern to civil libertarians.
Con: Acceptance of a "criminal standard" for electronic
surveillance--perhaps the most intrusive intelligence
technique--is not a precedent for adopting the same
restriction for techniques which do not implicate Fourth
Amendment values. The purpose of intelligence-gathering
is not law enforcement and the two concepts should be g
kept distinct. Intelligence and counterintelligence are
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intended to gather information about the activities
of foreign powers and their agents without regard to
the legality or illegality of those activities. Fre-
quently information is needed to develop foreign policy
which concerns the activities of Americans who are
clearly not violating the law. The statute should not
prohibit absolutely the collection of information
about the activities of citizens who have not broken
the law, but should regulate techniques.
D. Attorney General (or Service Secretarjr) Approval
of Certain Techniques
Should there be a statutory requirement for Attorney General
(or Service Secretary) approval of the use of non-extraordinary
techniques? (? 215)
Pro: The provision in S. 2525 does not require such
approval of the use of each specific technique, rather
qui es review of the iiivestigaiion and specific
authorization of the. use of the rou of techniques
specified in the statute. As such the principle is no
different than the concept of preliminary and full
counterintelligence investigations embodied in current
FBI Guidelines. The concept of the bill is that
certain very intrusive techniques require court approval,
others require high-level executive approval, while
others can be approved at the investigative level.
Con: If the requirement for AG approval of procedures
is retained there is no reason to require in the statute
approval of specific techniques. Those approval require-
ments should remain flexible and subject to change to
accommodate experience with the procedures. Moreover,
there is no real need to involve the Attorney General
in personally approving techniques used by CIA other
than those techniques which already require AG approval
under E.O. 12036.
E. Time Limits on Collection
Should there be statutory time limits on collection
of
information, regardless of the technique employed? (
216
218(a), 220(a), 221(a) )
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Pro: Time limits are imposed only in certain situations
where it is reasonable to limit collection. During that
period information may be obtained which permits further
investigation under another category (??
213, 214),
or
under a renewal of the investigative authority (? 216).
Statutory time limits will assure that no investigation
runs beyond its usefulness and that high-level officials
will review lengthy investigations. Such limits were
imposed in the Title III (law-enforcement wiretapping)
legislation and have proven workable.
Con: Statutory time limits are ill-conceived and unneces-
sary. Any such limit is arbitrary and investigations
must be individually tailored to fit each case. Where
appropriate such limitations can be established through
procedures adopted by the agencies.
III. ELECTRONIC SURVEILLANCE ABROAD ISSUES
A. Authority that Will Approve Surveillance Abroad
Should the bill establish a judicial warrant procedure?
Pro: A judicial warrant procedure would be viewed as
the most protective of U.S. persons' rights and such
a procedure would remove any doubt about the constitution-
ality of conducting electronic surveillance against U.S.
persons without a warrant. A warrant procedure need
not require explicit recognition in documents furnished
a court that a foreign service is involved and denia-
bility for the foreign service could thereby be preserved.
While some impact on the activities of a foreign service
is inherent in a joint operation, it would not necessarily
be so significant as to prevent them. The terms and
conditions of a warrant would be reasonable and would
not preclude involvement by a foreign service. If the
conditions were unacceptable to a foreign service, the
operation could be conducted unilaterally with only
United States personnel, or the operation could be
abandoned to preserve the liaison relationship. Nor
would a warrant requirement increase in any meaningful
sense the risk of disclosing sensitive information.
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There may well be less risk of disclosure with a warrant
requirement because -its presumptive legality is likely
to reduce the demand for detailed information by Congress
and others with oversight responsibility. Finally, and
perhaps most importantly; because of current case law
only a judicial warrant procedure can legally expand
the basis for targeting-U.S. persons beyond agents of
or collaborators with a foreign power.
Con: For reasons of economy, security, and diplomacy,
surveillance abroad usually involves cooperation with
a foreign service. Foreign services are very reluctant
to have information disclosed to a court that specifically
or implicitly identifies the service. Even where the
United States conducts surveillance on its own, it will
often be based on information provided by a foreign
service, and it may be difficult to obtain a warrant
without revealing at least inferentially the identity
or source of the information. Unauthorized disclosure
or. Lue rear.of such could 'Limit our ability to collect
important foreign intelligence abroad, and CIA may forego
otherwise appropriate surveillance, for fear of the
impact of unauthorized disclosure. CIA believes that if
information derived from or concerning a foreign intell i-
gence service has to be disclosed to a court in support
of an application for electronic surveillance abroad
this would be equivalent to an absolute prohibition on
the activity. This option recognizes the foreign service
problem by not requiring a prior judicial warrant. It
would essentially formalize current Attorney General
procedures.
B. Substantive Standard to Govern Electronic Surveil-
lance Abroad
Should the bill authorize surveillance of U.S. persons if
they are not agents of or collaborators with a foreign power
and without a criminal law nexus requirement?
Pr_o : Under existing case law, this approach cannot be
adopted unless there is a judicial warrant requirement.
This is good reason for a warrant requirement because
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it is necessary to be able to target certain U.S.
persons even if they are not agents of or collaborators
with a foreign power. For example, defectors to Bloc
countries, certain American expatriates, and perhaps
even certain American corporations engaged in sensitive
trade matters might be able to be subjected to
surveillance.
Con: There is no significant need to target U.S. persons
abroad who are not agents or collaborators of a foreign
power, at least no need sufficient to adopt a warrant
procedure which would be necessary to target such
persons. We have been able to conduct surveillance
operations without the necessity of targeting non-
agents and the opposition to targeting Americans who
are not agents would be quite strong.
C. Scope of Minimization Procedures
OLIOUlU the L1,Lil regU1.LC U.LLLL1iiciiz LLLOU pLOeeUUreS for com-
munications about U.S. persons even if they are not parties
.to the intercepted communications?
Pro: This is the current practice under Attorney General
procedures and will be required for domestic intelligence
surveillances under S. 1566 and H.R. 7308. A retreat
from current practice will be very difficult to justify.
While not required by existing case law, minimization
of communications about U.S. persons, even if they are
not parties to communications, is regarded as an important
safeguard. Current minimization procedures are very
strict even if U.S. persons are not parties. They could
perhaps be relaxed while maintaining safeguards against
misuse of political or personal information.
Con: Minimization procedures should not apply to com-
munications between non-U.S. persons even if U.S. persons
were mentioned. This would substantially reduce an
administrative burden because there are many more in-
stances of U.S. persons being mentioned than being
parties. It would improve intelligence collection to a
certain extent because there may be some loss in
intelligence product flowing from the requirement to
minimize communications about U.S. persons.
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D. Level of United States Involvement in a Foreign
Service Operation to Trig e~ r A licability of
Minimization Procedures
Should the bill require minimization procedures for the
product received from a foreign service if it is reasonably
believed to have come from electronic surveillance?
Pro: This approach is highly protective of the privacy
of U.S. persons because it would assure that U.S. persons'
communications intercepted by a foreign service would
only be used by United States intelligence agencies for
legitimate purposes and would help prevent "tacit" or
implied requests by U.S. agencies for surveillances by
foreign services. Under ? 2-208 of Executive order
12036, storage and dissemination of this information
will have to be minimized to a certain extent in any
event. Therefore, it would not appear to be a sub-
stantial burden or imposition for legislation to require
at least some minimization for such. information.
Con: The standard should be that any known participation
in a foreign service surveillance that entails receipt
of the surveillance product would trigger statutory pro-
tections. Receipt of product alone should not trigger
minimization. This is the standard under current Attorney
General procedures and is manageable as an administra-
tive matter.
IV. SPECIFIC INTELLIGENCE-ACTIVITIES ISSUES
A. Prohibitions of Use of Certain Categories of Persons
Should there be a statutory prohibition on paid use of
certain categories of individuals for intelligence purposes
(e.&., clerics, journalists, exchange visitors)? (? 132)
Pro: The categories subject to this prohibition are
limited and especially sensitive. In each case the
success of the general activity depends in part on
removing the taint of past intelligence use of such
persons. All journalists are suspect and subject to
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accusations they are spies unless there is a blanket
prohibition on any such person being used as an intelli-
gence agent. Since the prohibition does not apply to
"voluntary exchanges of information" between the agency
and the individuals, there is no real impairment of in-
telligence methods. It furthers the interests of the
United States to foster and protect these activities.
Con: There is no need for an absolute prohibition.
Present procedures are adequate to meet current needs.
Perspectives on this problem may well change and flexi-
bility is desirable. No statutory prohibition will
prevent foreign governments from false accusations
directed against newsmen or others whom that government
seeks to discredit or punish. The statutory proposal
is an unwise overreaction.
B. Prohibition of Certain Forms of Special Activities
Should there be a prohibition against the United States
undertaking certain forms of covert action such as mass destruc-
tion, overthrow of democratic regimes, etc., subject to an
explicit Presidential waiver for some of the prohibitions?
(? 135)
Pro: There are certain activities, such as mass
destruction of property, which are abhorrent to the
concept of the American form of government and should
never be undertaken short of an actual war. other
activities, such as torture and biological warfare, are
unacceptable even in wartime since they violate interna-
tional agreements or basic principles of humanity. Our
government should stand for a commitment to the highest
principles of human rights and should flatly prohibit
some, if not all, of these activities. We have already
renounced use of some of these techniques by treaty or
executive decision.
Con: It is not possible to reach agreement on what
activities should be flatly prohibited, as has been
seen in the debate since the introduction of S. 2525.
Absolute prohibitions should be avoided. Extreme
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situations require extreme measures. The protections
come from procedures for review, approval and oversight,
not absolute prohibitions.
C. Part'- -LTation in illegal Activity
Should the legislation authorize some procedure for approval
of otherwise illegal activity? (? 243)
Pro: It is desirable to have an explicit statutory
recognition of the practice of authorizing certain
otherwise illegal activity in the course of undercover
or intelligence operations in order to attain a "greater
good." While the law itself recognizes a defense of
"justifiability" in certain cases, it should be possible
to develop a statute which recognizes the principle and
clarifies the legality of the procedure.
Con: It is unnecessary to statutorily reco n ze the
principle. Application of principles of "prosecutorial
discretion" can avoid subjecting intelligence agents to
personal liability. We get along now without an explicit
statutory recognition of the principle. Reaching consen-
sus on the circumstances in which otherwise illegal
activity can be authorized will not be possible. Our law
should not recognize an exception for illegal acts com-
mitted in the name of national security.
D. Physical Searches (? 341)
1. Approval authority for domestic searches
Should a judicial warrant be required for physical
searches in the United States?
Pro: Judicial approval of physical searches would obviate
the constitutional problems inherent in Executive approval.
Warrant procedures here may be particularly warranted due
to some court decisions indicating physical searches are
especially intrusive and might not be open to the same
exception from the warrant requirement which exists with
respect to electronic surveillance for foreign intelligence
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purposes. As a matter of policy, a judicial warrant
would be regarded, both by Congress and the public, as
assurance that civil rights are being afforded real
protection. Judicial warrants do not appreciably in-
crease the risk of disclosure. In fact, the require-
ment of a judicial warrant could prompt Congress to
subject intelligence agencies to less reporting and
oversight requirements, and thus reduce the possibility
of disclosure. Finally, failure to require a warrant
would require a substantial justification in light of
adoption of a. warrant for electronic surveillance. A
warrant procedure would also permit searches beyond
current authorizations.
Con: The Attorney General has advised the President
that a judicial warrant is not constitutionally required
under the exception recognized by the courts in the area
of foreign intelligence. The validity of this position
was confirmed in the Vietnamese spy trial, at least in
the context of a non-tre-ppssor:r search TI, d war-
. y J _V 1Y.. ldL rants also pose risks of disclosure, delay and judicial
error precluding a search.
2. Approval authority for searches abroad
Should a judicial warrant be required for physical
searches outside the United States?
(The arguments on foreign searches are essentially
identical to those raised regarding overseas
electronic surveillance.)
3. Exception for diplomatic premises and items
Should searches of diplomatic premises and items be
excluded from-the legislation?
Pro: The Office of Legal Counsel has concluded that
diplomatic premises and items are rot protected by the
Fourth Amendment; there is therefore no constitutional
requirement of prior approval or even of "reasonable-
ness" in such searches. Moreover, apart from consti-
tutional considerations, searches of diplomatic areas
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pose no appreciable danger to the privacy interests
of Americans. For these reasons, electronic surveil-
lance of similar areas was excluded from H.R. 7308
by the House Intelligence Committee. The inclusion
of diplomatic premises and items seems particularly
unwise and inappropriate if the courts are to be given
authority in this area. Where no constitutional rights
are at stake, the courts have little legitimate role
in supervising the conduct of such searches.
Con: The exclusion of diplomatic areas would evis-
cerate much of the purpose underlying such legislation.
This omission would also allow intelligence agencies
to exercise unreviewable discretion in this area, which
may be unacceptable to the Congress. Some entity out-
side the intelligence agencies, perhaps the Attorney
General, may thus have to be vested with authority in
this area.
4. Standards for ta.rgeting,level of U.S. involve-
ment, minimization
(Those issues are essentially the same as those
presented by overseas electronic surveillance.)
V. PROCEDURAL LIMITATIONS ON SPECIFIC
INTELLIGENCE ACTIVITIES
A. Extension of Hughes-Ryan Concept
Should the concept of Presidential approval and reporting
to Congress on covert actions be extended to sensitive collection.
activities and/or_ counterintelligence activities? (?? 131, 141)
Pro: E.O. 12036 already extends the principle of
Presidential approval to these areas since in practice
SCC approval is followed by Presidential review.
Putting this practice in statute will preserve this
reform. Notification to Congress, while not required
now, is sometimes utilized and is a practice which
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will enhance public confidence in the propriety of
these activities. It will also create a sharing of
responsibility for approved activities and provide a
further safeguard against abuse.
Con: Hughes-Ryan has not been a wholly satisfactory
development. Sensitive collection and counterintelli-
gence activities are Executive branch functions whose
success often depends on extremely tight controls on
dissemination of information about the activities.
Despite improvements in maintaining secrecy,
Congress
shown itself unable to keep reports under Hughes-
Ryan secret. Congressional notification means political
interference in some cases and this is undesirable.
B. 'fighter Standards for Approval of Intelligence
Activities
Should Hughes-Ryan be amended to
ligence activities only when "essential" totthepnational de-
fense or conduct of foreign relations and only when there is a
report to Congress prior to initiation of the activity? (??
31(d) , (g), 141(c)(6))
Pro: The present standard of "necessary" is too lax
and permits unwise use of covert means when overt means
will suffice. Timely reporting to Congress is insuffi-
cient to insure congressional oversight since once an
activity is undertaken it may be too late for Congress
to register any objections.
Con: "Essential" cannot be given a literal meaning
without eliminating covert action as an option. There
has been no abuse of the present standard and thus no
need to change it. Time will not always permit prior
reporting and Congress should not become a joint
partner in approving these activities. Oversight
rather than approval is the role of Congress and "timely"
reporting maintains the proper balance.
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C. Limitation on Committees Receiving Hughes-Ryan
Reports
Should existing reporting to "approoriate" congressional
coluimittees (6 or 7 ) e modified Co require reporting only
J_ to
the two intelligence committees? (? 131(8))
Pro: The proliferation of reports under current pro-
cedures makes disclosure much more likely. The intel-
ligence committees have tighter security standards
which, while not leak-proof, minimize the possibility
of disclosure. This change has long been sought by the
Executive branch and was recommended by the Murphy
Commission.
Con: Any change in Hughes-Ryan opens up a difficult
subject. It is better to leave the situation as it is
than to endorse any changes. The "price" of getting
this change may be prior notification or an increase in
the depth of involvement by the intelligence committees
in intelligence matters.
D. COMSEC
Should COMSEC become a NSC (SCC) responsibility? (? 142)
Pro: Certain aspects of COMSEC raise policy concerns
at least as great as those presented by intelligence
activities now considered by the SCC. These activities
should be discussed in the context of the SCC where all
interested parties can be heard. Such review will
insure a better policy regarding COMSEC and assist in
providing maximum security for official communications.
Con: COMSEC activities can come to the SCC now under
? 1-306(b) of E.O. 12036 whenever the President desires
to have such review. There is no need to write a
statutory requirement for. NSC-level review of this
particular subject. Today's concerns with COMSEC may
be far different in the future. There is no history
of abuse of these practices and no need for reform.
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VI. CIVIL AND CRIMINAL REMEDIES MISCELLANEOUS
A. Criminal Sanctions
Should criminal penalties attach to intelligence activities
undertaken without a court order when those techniques require
an order and such an order is authorized by this or other
legislation, e.g., electronic surveillance, physical search?
(? 251)
Pro: Wiretapping for law enforcement or non-governmental
purposes is criminal if undertaken without a Title III
warrant. Improper execution of a search warrant is also
a crime. Similar treatment should be accorded intelli-
gence activities. Criminal sanctions will provide a
needed deterrent against willful abuse.
Con: There is no need to add criminal penalties. The
possibility of an inadvertent violation is too great in
tha.. rig;;. "t op ng are ; of thie law and in Lelligence as s
should not be exposed to criminal prosecution for such
mistakes. The difficulties of prosecuting such viola-
tions, given the inherent conflict with national security
interests and public disclosure, would result in the
statute being rarely used; we should not adopt criminal
statutes when we know they will rarely be used, even
when violated.
B. Should there be criminal sanctions for "unconsented
human experimentation?" (? 252)
Pro: The proposed statute applies even-handedly across
the board to all government employees, not just intel-
ligence agents. Unconsented human e_,:oerimentation is
sufficiently abhorrent to warrant criminal sanctions.
Con: Past abuses do not warrant such a drastic reaction.
The criminal sanction proposed is based on experimenta-
tion which "results" in injury even if unforeseeable. On
occasion the validity of justifiable experimentation
depends on the subject not knowing everything about the
experiment. Any such statute should apply to all such
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experimentation, not just that undertaken by the
govern-ent, and appropriately should be considered
in the context of general criminal law revision, not
this bill.
C. Civil Sanctions
Should there be a statutory cause of action for violations
of the Act? (?? 253, 254)
Pro: Assuming the restrictions in the Act are accept-
able, there is no justification for violating a person`s
rights protected by the Act and a remedy should be
provided. Furthermore, since the proposal is to have
individual liability only for intentional acts under-
taken without requisite approval or with the intent of
depriving someone of the exercise of their rights, the
proposed remedy is equitable.
Con: The courts are able to develop, on a case-by-case
basis, better standards for civil liability than Congress
could do by statute. We should not rush to create
liabilities on individual intelligence agents who already
have enough disincentives to function effectively. The
existence of statutory causes of action is an open in-
vitation to nuisance suits or suits instituted to disrupt
legitimate intelligence activities.
D. Personal vs. Governmental Liability
Should civil liability for "intelligence torts" differ from
civil liability principles adopted by the Administration in the
pending amendments to the Tort Claims Act? (?? 253, 254)
Pro: Intelligence torts differ from other torts. The
proposed individual liability provisions in this bill
are, or can be made, acceptable and this issue should
not be taken out of a comprehensive charter to be
handled with other issues arising out of law enforcement
torts.
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Con: Intelligence torts are not different. There is
no basis for separating this problem from the pending
comprehensive approach to personal liability for govern-
ment investigative agents. Under that approach the
government would become liable for acts of its agents
so that individuals would be compensated, while indi-
vidual officials would be liable only in eggregious
cases. The principle is sound and applies equally well
in the intelligence area.
E. Should the statute preclude injunctions against in-
telligence activities? (? 257)
Pro: There should be an express provision to avoid the
possibility of litigation which disrupts proper inves-
tigative activities. Governmental liability in damages
will be sufficient to redress any personal. wrongs.
The provision in S. 2525 is an open invitation for indi-
viduals who suspect they are being investigated to use
the courts for discovery and judicial anaa, ; en of
intelligence activities.
Con: Common law rules on the use of injunctions insure
that the device will rarely be used to disrupt an on-
going investigation. If a court were to be convinced
that the facts justified an injunction, then probably the
investigation should be curtailed or stopped. It is
doubtful Congress can prohibit a court from issuing an
injunction because to do so would interfere with the
courts' constitutional powers to adjudicate cases.
F. Congressional Review of Intelligence Procedures
Should all intelligence agency regulations implementing
the Act be submitted to the congressional intelligence commit-
tees 60 days-before their effective date? (? 272)
Pro: This form of "report and wait" provision is far
preferable to a legislative veto provision. This review
provision is an acceptable trade for statutory restric-
tions. The intelligence committees' views are usually
sought and getting their comments before the regulations
are implemented will make for better, and more accept-
able, regulations.
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Con: Now the regulations are put in essentially final
form and sent to Congress for 14 day review. This
informal arrangement should not be put in permanent law.
Congress always has the chance to review and comanen
agency regulations. ""` "` on
b On occasion 60 days delays will be
unacceptable.
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