MEETING WITH THE MURPHY COMMISSION IN DISCUSS WILLIAM R. HARRIS' ISSUE PAPER
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December 19, 1974
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19 December 1974
SUBJECT: Meeting with the Murphy Commission to Discuss
William R. Harris'.Issue Paper
1. At the request of the Commission on the Organization of the
Government for the Conduct of Foreign Policy (Murphy Commission),
I met with the Commission on 16 December to go over certain legal and
legislative matters which had been put in an issue paper for them.
(Copy attached.) Mr. Lawrence Houston had also been invited. Present
from the Commission were Robert D. Murphy, Chairman; Dr. David M.
Abshire; William J. Casey; and staff members Francis O. Wilcox,
Fisher Howe, and Thomas J. Reckford. Also present was William R.
Harris, who had prepared the basic submission to the Commission
entitled "Legal Authority for the Conduct and Control of Foreign
Intelligence Activities. " The Chairman requested that I comment on
the issues paper.
2. Issue 1: "Should the Commission emphasize that the intelli-
gence community must comply with the laws.af the United States? "
17'
The paper referred to prior intelligence activities of questionable
legality, citing the "Huston Plan" and assistance to the White House
"plumbers. " There were three options specified: (a) that the Commission
viewed current intelligence activities as in conformance with the law;
(b) to reaffirm the importance of compliance with the law; and (c) to say
nothing. I indicated that option (a) certainly was suitable from our view-
point and, furthermore, was true. I pointed out that Tom Huston had
testified regarding the Agency's participation in the "Huston Plan" before
the Senate Armed Services Committee to the effect that the recommends.-
tion made with respect to CIA in the "Huston Plan" was simply that CIA
increase its coverage of foreign activities.
0
STAT
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3. Issue 2: Is additional or clarifying legislation desirable
for the co,aaduct or control of foreign intelligence activities?
a. to-enhance criminal sanctions for unauthorized
disclosure of intelligence sources and methods"
We discussed sources and methods legislation in some
detail, pointing out the Director's strong view that criminal
sanctions are needed in view of the inadequacy of existing law.
William Harris agreed that legislation was desirable but
seriously questioned whether we should seek an injunction.
I pointed out that we strongly favored an injunction and this
had been concurred in by the Department of Justice. I added
that there were some' other questions that we were still working
with Justice on and, "furthermore, I would be working more
with Mr. Harr -s. ` It.was suggested to the Commission that
its position could~well be that it supported sources.and methods
legislation without endorsing any particular version of such
legislation.
. "b. to establish the National Security Agency as an
independent agency"
I indicated we took no strong position on legislation to
establish NSA as an independent agency, but queried what this
would accomplish. It was also indicated that this might not be
the time for congressional review of NSA's activities in detail
as would undoubtedly occur if legislation were sought.
"c. to authorize collection of information about multi-
national entities"
I indicated the Agency saw no need for this legislation
since we were authorized under existing law and directives to
secure such foreign intelligence.
"d. to establish standards for domestic or transnational
collection of intelligence"
It was indicated that we saw no need for legislative
standards in this area. Harris indicated he had been informed
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by the NSA General Counsel that such legislation was necessary.
(I am certain that he has garbled some legal problems in con-
nection with transnational intelligence arising out of inadvertent
surveillance of Americans followed by discovery motions in
subsequent prosecutions.
"e. to balance the duties of the DCI for the protection
of sources and methods with the duty to supervise declassifica-
tion of foreign intelligence information. "
It was pointed out that E. O. 11652 deals with declassifi-
cation. Further, the new Freedom of Information Act provides
for declassification reviews and any additional legislation for
the DCI in this area was simply unnecessary and unwarranted.
4. Issue 3: "What changes in the statutory authority for the
clandestine services should be sought?
a. We reviewed the votes on the riders to prohibit
covert action by the CIA in the House and the Senate. Further,
we pointed out that Justice ruled that such actions are legal.
Also, we pointed out the House and Senate versions of the Foreign
Assistance Act, which is still in conference and has riders
requiring Presidential determinations and reports to Congress.
Thus, there was ample legal authority in our view.
b. We argued that a law on this subject is simply not
required. There are difference among lawyers as to where
international treaty obligations .would prohibit certain types of
covert action. I explained that we had taken the position that
the President's inherent authorities as Commander in Chief
and also under international law as a sovereign took precedent.
Further, there was a recent legal opinion by the State Department,
concurred in by the Secretary of State and the Attorney General,
that the Vienna Convention on the status of diplomats and embassies
did not affect espionage activities.
c. In addition to the stated requirement, Mr. Harris
also offered the suggestion that the DDO"should have its own
legal counsel so that covert actions would be more thoroughly
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scrutinized. We took the position that there is no requirement
for formal legal opinions as to covert actions since fundamentally
these are basic policy questions. As to the suggestion for a
separate counsel for the DDO, I stated that the DDO can receive
legal review now if it is desired and there seems to be nothing
gained by statutorily requiring legal opinions.
5. It appeared throughout that the Commission members were
much in accord with views that we expressed. Particularly Chairman
Murphy was of the view that if our legal authorities are clear and about
which he saw no problem, the less precise one became in law about
these matters, the better. All members commented on what they termed
an excellent presentation. I think it reasonably clear that these Commission
members are not going to have much patience with Mr. Harris' papers
and views.
Attaeb.men.t
cc: DCI
DDCI
DDO
AD/DCI/IC
General Counsel, NSA
JOHN S. WARNER
~/General Counsel
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COMMITTEE II - Intelligence
ISSUES PAPER
STATUTORY AUTHORITY
Should the Commission emphasise that the Intel l i cence
community must comoly witty the laws of t re Unitec:l
~
Stales?
Although all government agencies must perform in accordance
With U.S. law, there have been instances in the past few years
where one or more intelligence agencies have engaged in conduct
of questionable legality (e.g., approving the "Huston Plan" or
giving improper assistance to White House "plumbers"). Urging
compliance with the la;a might be welcomed in some quarters and
might add to the effectiveness of American foreign policy by
increasing public confidence in the institutions of government.
Essentially, the available options are (a) to state satis-
faction that intelligence activities, as delegated by NSC in-
telligence directives and other executive authority, are con-
ducted in accordance with U.S. law, (b) to reaffirm the importance
of compliance with the law or (c) to say nothing about this subject.
2. Issue: is additional or cla2: if-tinq ier i sl '~:ic I desirable
for the conduct.- or control or foreign intelligence
activities? -
A number of areas possibly needing nett legislation have been
Suggested. The most important of then e appear to be:
a. to enhance criminal sanctions for unauthorized disclosure
of intelligence sources and methods
b. to establish the National Security Agency as an indepen-
dent agency
to authorize Collection of information about mul tiI?atl.o na T_
en ti t 10S
d. o E r` ablis starida--- ? for domestic or tran_snationai
CO1.1C:'CIOtl o nt ~i' ~`ence 1.
e . to balance t: :c? alt' t).._.. oS_ the DC _::~ the :trot ~' r o
-C ~.I X31
OL... San 8~. i 1 r_h dut ' to s:i: =rviso
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- _ J.i1: a 111iO1" ac. _~Ol1 .
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3. Issue: Vy'hat 'C`hancses in the sstatutory authority for the
clandestine services :ould be e LouCht
(Note: This issue re .a tes to the Comoiittee' s separate consideration
of various aspects of clandestine activity).
Among the available options are (a) to revise the National
.Security Act to make more explicit the subject of clandestine
activity, (b) to urge compliance with international treaty
obligations of the U.S., (c) to require formal legal opinions
within the NSC or Department of State prior to authorizations
of covert action by the NSC, or otherwise to assure that clan-
destine services are compatible with international legal
obligations.
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DCI/IC-74-3016
2 December 1974
SUBJECT: DCI Appearance before Murphy Commission, 18 November 1974
PRESENT: Ambassador Robert Murphy
Mr. Arend D. Lubbers
Congressman Peter Frelinghuysen
Mr. William J. Casey
Dr. David Abshire
Dean Francis Wilcox
Mr. Fisher Howe
Mr. Thomas Reckford
Mr. Kent Crane
Mr. Frank C. P. McGlinn
1. In general the Director outlined a historical perspective.
of covert action (CA) activity with examples through the past 20 years.
He traced the combining of OSO/OPC in the early 1950's and the
condition of CA activities in CIA today
2. Specifically, in response to Ambassador Murphy's questions
on authority and oversight in the past, the Director cited the OCB,
5412, 303 Committee and the current 40 Committee role. He noted
that U. S. policy governing CA activities was clear in the period of
the. 50's and 60's but that a shift of emphasis over the period has
occurred.
3. In response to Mr. Casey's question concerning the relation-
ship of CIA's role in positive intelligence to covert action, the Director
read from and elaborated on the CIA law. He outlined how agents are
recruited primarily for positive intelligence coverage and can be used
as policy dictates to launch a CA activity and be expanded as in the
case of Vietnam.
4. The Director continued an outline of the types of CA by
citing CIA involvements in international organizations up to the 1967
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expose. He noted these were representative of early policy initiatives
to fight Communist dominance of these international groups in the 50's
and 60's.
5. The Chairman inquired whether Congress reviewed CA
activities, specifically referring to Chile. He also inquired if a
record is kept. The Director explained his regular reporting to selected
committees and the circumstances surrounding the Chile revelations by
Congressman Harrington. He noted that a record was kept of some
Congressional sessions and that in general he favored recording "since
memories dim and perceptions can change. " He noted that the record
of Congress for keeping secrets is good -- the Harrington exception
being one the Foreign Affairs Committee in the House is addressing.
6. The Director then explained the concept of plausible denial
using Laos and Cuba as cases in point. He noted the constraints of size
on secrecy and that "plausible denial" has become outmoded and contentious
in today' s environment. He noted those words are not used now and that
questions concerning CA revalations must be answered honestly to the
American people.
7. Mr. Lubbers asked the Director to analyze reason for Cuban
failure. The Director observed that size impacted on control and security
and that in keeping operations tight, there may not have been in the case
of Cuba enough exposure to assessment people. He also cited time
constraints in getting ready landing forces and some lack of momentum.
Lastly, he cited how failure to eliminate the Cuban air force may have
been a material factor.
intelligence operations. The Director urged the Commission to give thought
to this issue in preparing its report.
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8. Mr. Abshire noted secrecy seemed to have prevented
incremental changes in the operation getting policy consideration. The
Chairman observed the State Department was fully informed and cited
Mr. Acheson's position re Cuban air strikes on which the Agency did
not appeal to President Kennedy. Mr. Wilcox inquired whether
clandestine collectors were involved in the Cuban project. The DCI
responded affirmatively but noted the estimators were not. Congressman
Freylinghuysen observed that the papers knew something was up among
Cuban refugees and that it was not a secret.
9. The Director outlined the principle of using CIA to get activity
started -- then shift them to other agencies. This is true especially for
technical programs but also a reasonable course for large paramilitary
CA activity. He explained why this had not been done in case of Laos. He
noted that funding and logistics were carried out by DOD after 1968.
10. Dr. Abshire opined that Laos was a good effort. He observed
that it was unfortunate the perception of a "secret" war occurred. The
Director noted that U. S. policy emphasized Laos as a national state, and
the political issues required direct U. S. involvement be avoided in any case.
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16. Congressman Freylinghuysen asked the DCI if the Commission
could help on any other subjects. The DCI restated his view that the
Commission could accent the role of intelligence and support it as an
important tool for de-escalating issues.
17. Mr. Nelson, in urging support to the DCI's proposed legislation,
cited Soviet efforts to reveal CIA people and commented on Agee's book and
his ostensible tie with Cubans.
18. Mr. Lubbers advised that the perception of people in his part
of the country is that intelligence is still engaged in cold war. DCL noted in
response to Mr. Lubbers that superanimated Howard Hunts are not the
case today. He reported on technical advances of Soviets and their efforts
to turn off access of our technical collectors.
19. Dr. Abshire noted that the group the Commission covered in
Atlanta during the past week emphasized keeping CA capabilities on a
standby activity only. He observed that in our society it probably is not
possible to do CA and keep it a secret. The DCI observed this is the focal
issue in today's America - secrecy which is prime to operations. Related
to this, the DCI noted the need for legislation to protect intelligence sources
and methods from revelation by those within the secret. On question from the
Chairman, the DCI observed that the British law is incompatible with the
American scene. He urged the Commission's support to legislation being
introduced on this matter.
20. Mr. Lubbers inquired about 40 Committee oversight. The DCI
described the 40 Committee charter and review process. He noted some C.A
is directly responsive to Presidential direction, but except for these few cases
he explained the 40 Committee is involved and kept informed. The nature of
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proposals for 40 Committee review and the degree of prior consultation
with Ambassadors, Assistant Secretaries, etc. were described. The
Director reported on his recent briefing to the Congress on current CA
projects. He also cited the PFIAB as a further independent oversight
group.
21. The Chairman inquired how detente impacted on intelligence
operations. He observed that Americans seem to feel we can relax. The
DCI observed that detente is a relationship between two countries which
can destroy each other while intelligence is an intellectual process of
assessment as well as collection and CA which can contribute to detente.
22. The Chairman then circulated the Commission and staff for
questions.
24. Dr. Abshire pursued 40 Committee oversight, and observed that
the idea that CIA is a state within a state needs to be addressed, noting it is
a real perception among many he, has talked to.
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26. Howe inquired about overt reporting. DCI elaborated his
efforts to get improved Foreign Service reporting and mentioned his intention of
sending an evaluation feedback annually to some Ambassadors on their
intelligence reporting. Howe reported that the Commission has a contract
out to review four embassies and indicated he would provide DCI with the
results. (Subsequently followed up.
27. Mr. Lubbers inquired of DCI's role as coordinator and whether
structural changes were needed. DGI responded by elaborating his role and
observed it was working well.
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28. Mr. Lubbers inquired whether CA could be.a bargaining chip
in detente. DCI noted we needed a faundamental Soviet attitudinal change.
29. Mr. Lubbers inquired whether a Joint Committee would. be
useful. DCI noted no objection -- explained present adjustments under way
in Congress deferred to Congress since "it is their affair to determine
how they wish to exercise oversight. "
30. Mr. Lubbers observed that economic intelligence involvement
would increase. DCI elaborated on CIA economic research, sources of
data for analysis emphasizing that clandestine sources should be used only
where overt sources cannot do the job.
31. Congressman Freylinghuysen indicated Chinese visits were
helpful to him. DCI noted his desire to make intelligence analysis known to
Congress, press, and others wherever he can do so.
32. Messrs. McGlinn and Casey had no questions.
33. Crane inquired what triggered CIA to move issue to 40
Committee. DCI referred to NSDM 40 -- reading from it. He noted
40 Committee was primarily for substantive CA but also covered
peripheral flights and overflights.
34. Reckford observed contentions about ineffectiveness of
40 Committee and "Henry's firm hand. " DCI noted each rep had a
responsibility to speak up if he disagrees.
35. Howe inquired whether there were other things 40 Committee
should review, i. e. , operations. The Director replied that he is responsible
to the President for clandestine operations and keeps the Secretary of State
fully advised. He noted he would not expect the 40 Committee to review all
clandestine operations and sees no need for it to do so.
36. Crane observed that detente should help access to hard targets.
Nelson concurred, especially younger Soviets.
37. Crane suggested Embassy styled to collect intelligence should be
consideration in appointing Ambassador. Murphy said he was impressed with
Soviets in U. S. Did CIA track? DCI stated this was an FBI chore.
38. Howe questioned how much Commission should get into clandestine
HUMINT. He commented on the PFIAB overall HUMINT report. He suggested
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39. Howe asked for DCI comments on separating CA from DDO
and/or separating DDO from the Agency. DCI answered by citing support
CA gets from CIA noting separation would require duplication of support.
He cited value of analysts getting close to operations and vice versa. He
cited NIO system gathering in other agencies and reported he could see no
benefit of separation of DDO.
40. Abshire noted that given current state of affairs, a change in
organization would be misread and dysfunctional.
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42. In sum, three key points we:re
law.
a. Need to address issue in cover and properly support intelligence
b. Need for legislation on sources and methods protection from
violations by those within the secret.
c. A split of CA from CIA or a split of DDO from CIA is not
supportable.
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As ;?ciaee Deputy to the DCI
for the Intelligence Community
Distribution:
I , DCI
-ER
1 - I.)DCI
1 - DDO
1 - DCI/IC Registry
UNC .ASSIF11 CONFIDENTIAL SECRET
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FcAnoN AFFAIRS
KENT B. CRANE.
AD41!4STaATIVE A1SI5TAFIT
iu~e of Aepr ntatibtt
Mu asbircctarx, 24515
November 20, 1974
The Honorable William Colby
Director
Central Intelligence Agency
Washington,- D. C.
Dear Mr. Director:
SOMERv1A.LX, Nrw JzR,sy 0887&
U.S. POST orrlcs BUILDING
39 DIVISION SYRSEY
ROM 3
25f/520-2897
Ambassador Murphy intends to convene the Comxnissionrs
subcommittee on intelligence and national security again on
December 2nd at the PFIAB Board Room. At that time, we would
appreciate receiving a briefing on (a) the current organization of
the intelligence community; (b) trends in resource management
(including the implementation of the President's memorandum of
November 5, 1971); and (c) budgetary review of the intelligence
community.
We should like to set aside most of the morning for
classified briefings. We are also inviting Admiral Anderson to
provide any views he may have on these subjects and to especially
review the executive branch oversight function, about which
Commissioners'have remaining questions.
At the same meeting we intend to consider unclassified
papers on resource management by Mr. Macy, legal authorities
by Mr. Harris, institutional framework of the community by
Mr. Barnds, and several sections of the classified historical
review prepared by Mr. Hitchcock and myself.
Kind personal regards.
Sincerely,
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Kent B. Pane
Administrative Assistant
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The Hon. William E. Colby
Director of Central Intelligence
Langley, Virginia.
November 30, 1974
Dear Mr. Colby:
Enclosed for your review, should you find it of interest,
is a, revised draft of the study, Legal Authority for the Conduct
and Control of Foreign Intelligence Activities [prepared for the
Commission on the Organization of the Government for the Conduct
of Foreign Policy].
This study and the issues which it poses will be considered
by the Murphy Commission a.t its next meetings on December 16-17,
1974, by which time comments from OGC/CIA, Professor Elliff of
Brandeis, and the former General Counsel, Mr. Houston will be
available for consideration by the Commission.
When I lof the IC staff suggested that I discuss
my study with you, I responded (la.st summer) that there was not
then reason to consume your time. If you do have an opportunity
to read the enclosed study and find that a. discussion of issues
therein raised would be helpful, I would be glad to come out from
Washington at some time during the week of December 16-20. Be-.
cause this study was prepared for the Murphy Commission and not
the executive branch, there is no need for detailed consideration.
On the other hand, elaborate review of proposed legislation to
protect foreign intelligence sources and methods is probably overly
complex for the Commission, but possibly helpful to the executive
branch.
There are four issues which may well interest you; the first
two relate to your duty to protect intelligence sources and methods;
the third relates to your coordina.tion duties vis a vis NSA; and
the fourth poses the question as to whether formal legal opinions
for covert action, by legitimating certain activities while inhibit-
ing others, would be appropriate. Although my review of draft legis-
lation to protect intelligence sources and methods is likely to
elicit a plausible defense from OGC/CIA, there remains the more im-
portant policy issue a.s to whether statutory power of injunctive
relief would really assist in fulfilment of your duties under 50
U.S.C.A. ?403(b)(3). [See the attached copy of a letter to Mr.
Houston, dated November 30, 1974). Secondly, there is the issue
a.s to whether the legal status of technical collection systems is
likely of amelioration.
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The Hon. William E. Colby, Nov. 30, 1974, page 2.
Third, there is the issue as to whether Congressional legisla-
tion for NSA would be appropriate, either to legitimate transnational
collection missions or to assure a communitywide responsiveness in
lieu of a.Defense-dominated clientelle. Both the 1973 and 1974
reports of Leo Cherne, to PFIAB, have reinforced my view that new
legislation for NSA would be appropriate. Should you be interested
in this issue, it would be appropriate for me to make prior arrange-
ments to transmit to your office copies of the brief summary
[Appendix 3, Conf.] deleted per request of NSA from the unclassified
text, and a. more detailed and highly-classified supplement.
Fourth, the proposition that legal opinions would tend to
legitimate greater covert action activity may be of interest.
S T I I with whom I have discussed this matter, has sug-
gested a meeting with Mr. Nelson. In the event that you would be
interested in reviewing this subject with me, it would probably make
sense for me to obtain reactions from Mr. Nelson and the 0GC staff
at an earlier meeting.
Lastly, I would like to note t:ha.t my lack of sa,tisfa.ction with
various of the intelligence papers prepared for the Murphy Commission
is not in any substantial way the consequence of any lack of coopera.
tion on the part of the USIB-member agencies. On the contrary, all
the agencies have been most cooperative, and the IC staff has been
most helpful. Our intellectual deficiencies are self-imposed.
Very truly yours..
William arris
Enclosure a.s stated.
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November 3O, 197
Lawrence R. Hou
n., Esquire
Dear Mr; Houston
Enclosed please find an updated set of Tabs [A-K, inclusive]
which are part of Appendix 3 to the draft study, Legal Authority
for the Conduct and Control o? Foreign Intelligence Activities,-
October 30, 1974, revised November 22, 1974. These should be-
substituted for the Tabs which you should have previously received.
Summary analysis of the Department-of Justice draft legislation'of
October 15, 1974 [Tabs H and K], found at Tabs I and 3, suggests
that the best working draft of intelligence sources and methods
legislation remains the OGC/C'A draft of September 1974, found at
Tab F. My substantial dissatisfaction with this legislation has
been addressed at pp. 33-38 and in the introductory remarks of
Appendix 1.
If the Beacon Theaters constraints are as significant as I believe
they area' kely to be then the marginal protection afforded by
statutory prescription of injunctive relief is likely to be slight
-- scarcely an improvement, if any, beyond relief under rights of
contract. The costs of this marginal increment of injunctive
relief may include: (i) some probability. however remote that the
entire statute will fail on constitutional grounds; (ii)tsome proba-
bility that the federal judiciary will be less favorably disposed
to enforcement of equitable relief when remedies at law (as with the -
British Official Secrets Act) are seen as increasingly adequate;
(iii) the high probability that a proposal for injunctive relief by
statute will serve as a lightning rod to attract Congressional opposi-
tion, hence reduce the probability of Congressional enactment;- and
(iv) the costs of "success," assuming that a gag statute is. enacted,
in reinforcing the view that much that CIA does must be sufficiently
nefarious to require such extraordinary protection.
If my analysis is correct (and you may decide it is not), then there
remains a tactically complex question as to whether the proposal for
injunctive relief should be carried forward into the 94th Congress,
so as to obtain credit for its abandonment as part of a'legislative
compromise, or whether the proposal is only an albatross which should
be abandoned at the first polite opportunity, presumably in the inter-
lude between the 93rd and_ 4th Congresses. Your comments on the many
other issues raised in my 'Seiidy ould be appreciated.
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---sr rASSiFIGATION TOP AND BOTTOM
OFFICIAL ROUTING ,SLIP
;APPROVAL
COMMENT
DIRECT REPLY
DISPATCH
FILE
INWRMk
RECOMMENDATION
RETURN
SIGNATURE
FOLD HERETO RETURN TO SENDER
ASSIFIED
-yjN
CL
FORM NO. 237 Use previous editions
1-67
Approved For Release 2003/09/02 : CIA-RDP86B00269R000600030028-2
JF-