THE REAGAN ADMINISTRATION AND INTELLIGENCE: SOME PRELIMINARY JUDGMENTS ON THE PUBLIC RECORD

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00552R000505410062-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 27
• Document Creation Date: December 22, 2016
• Document Release Date: August 10, 2010
• Sequence Number: 62
• Publication Date: January 8, 1982
• Content Type: OPEN SOURCE

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Judy
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The Reagan Administration and Intelligence:
Some Preliminary Judgments on the Public Record
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1 MAR 1982
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Remark s
of
John H. Shenefield
Milbank, Tweed, Hadley & McCloy
at
Conference
on
The First Amendment and National Security
St. Thomas, Virgin Islands
January 8, 1982
STAT
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The Reagan Administration and Intelligence:
Some Preliminary Judgments on the Public Record
Almost precisely one year has now passed since
President Reagan took office. As is customary at this point
in any new Administration, the press has been issuing a
series of "report cards" on the performance of the President
and his appointees. In fact, the Administration recently
went so far as to issue a report card on itself. Not
surprisingly, it gave itself high grades.
These year-end assessments, whatever their source,
can serve a constructive purpose. They help to hold elected
officials and their appointees to the public expectations
created during the previous campaign. They can also
encourage mid-course corrections where mistakes have been
made. With these positive purposes of the exercise in mind,
I would like to spend the next few minutes issuing my own
report card on the Reagan Administration's record on issues
pertaining to intelligence.
In doing so, I will necessarily be limited to the
public record of the Administration's actions. This is a
serious limitation in discussing a subject that, by its
nature, must be handled largely out of the public view. But
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I will be aided by my own experiences dealing with
intelligence issues in the Carter Administration. I came
away from that experience more firmly convinced than ever of
the importance of the intelligence enterprise for the well-
being of the United States. Put simply, our national
security demands that we have the best intelligence system
in the world. That is the first major proposition. The
second is this: in building and maintaining that capacity,
we must work within the legal, political and moral framework
defined by what makes our country unique. That discipline
-- tension, if you will -- makes intelligence issues
conceptually and practically difficult. Our experience
points to the futility of seeking simple solutions to the
problem of balancing national security and individual
rights. There are no simple solutions.
I must begin by confessing that I was concerned at
the time the Reagan Administration took office about some of
the rhetoric that the President and his supporters had used
on the subject of intelligence. The reason was that I had
broken my own rule on the credibility quotient in campaign
speeches. If some conservative politicians and activists
were to be believed, the Carter Administraiton had
systematically choked off every legitimate source of
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intelligence useful to the government. It had done so by
imposing totally illogical rules and regulations on the
intelligence community that exponentially increased the
problems of intelligence professionals. Ostensibly, for
instance, we had also refused to make any use of covert
action even in the most demanding of circumstances, thereby
depriving the United States of an important weapon in world
affairs.
As anyone familiar with the facts knows, these
charges are pure nonsense.
President Carter's Executive Order 12036 on
intelligence activities built largely on the foundation laid
in the Ford Administration in Executive Order 11905. The
procedures promulgated under the Carter order similarly
built on the traditions that had already been established
under the previous Administration. Both the order and the
procedures placed controls on the collection of only a
minute portion of the universe of intelligence information.
That is, the rules dealt almost exclusively with how and
when information could be collected from or concerning
United States citizens. They did not place any significant
restrictions of any kind on collecting information about
Soviet citizens or Libyan terrorists, for instance.
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Therefore, it is absurd to blame these rules for
intelligence shortcomings in foreign countries. The real
targets of any aggressive U.S. intelligence agency must be
in foreign governments and organizations. The kind of
restrictions that have been imposed to date simply do not go
the heart of much of the agencies' work.
As far as the use of covert aciton is concerned, I
assure you that this tool was not abandoned. Its use was
careful, calculated, and judicious; indeed, the popular
perception of its neglect is a perverse confirmation of the
successful manner in which it was employed, for this is a
technique of state-craft that succeeds only to the extent
that it remains secret. The fact that there is so little on
the public record about the use of covert action in the
Carter Administration proves only that these matters were
kept secure.
I do not mean to suggest that Executive Order 12036
and its related procedures, or the Carter Administration's
use of covert action, were perfect in all details. Some of
the procedures were indeed lengthy and perhaps too complex
for practical purposes. Consequently, while I was concerned
at the time President Reagan took office that he might heed
some of the ill-informed advice he was receiving and simply
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abandon the legal framework that had governed U.S.
intelligence activities for several years, I was pleased
that he was also committed to remedying some of these flaws.
Viewed on this background, several aspects of the
Reagan Administration's record deserve approval and
applause. However reluctantly, the Administration did take
almost a full year to draft, redraft, and redraft again its
Executive Order 12333. Although some may have found the
passage of time a cause for criticism, I believe it reflects
a process of careful deliberation that should be encouraged.
Sound legal regulation of intelligence does not lend itself
to snap judgments. The product that finally emerged is a
relatively moderate document, which continues the important
tradition of building on its predecessors. Lest I offend
those in the current Administration who wish to believe that
they are making a revolution that has no historical
antecedents, I should add that the order certainly is more
conservative than its predecessors in the sense of according
greater discretion to the intelligence community in the
performance of its work. Nevertheless, by and large this
order recognizes the strengths of the orders issued in the
two prior Administrations, and avoids the destructive
impulse simply to negate everything that went before.
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As an example, I would cite the order's provisions
pertaining to the Attorney General's intelligence
responsibilities. The creation of an active role for the
Attorney General in the review and legal analysis of
intelligence activities touching on individual rights was
one of the most important reforms established in the Ford
and Carter orders. It is, perhaps, the most important
procedural aspect of either of those orders. The
elimination or significant reduction of the Attorney
General's role would have signaled a major retreat in the
government's commitment to the protection of individual
rights.
With one important exception, which I will discuss
in a few moments, the Reagan order avoids taking that
retreat. For instance, the order provides that all of the
most intrusive investigative techniques are to be used only
in accordance with procedures established by the head of the
agency concerned and approved by the Attorney General; the
Attorney General himself is delegated the power to approve,
on a case-by-case basis, the use of those techniques for
which a warrant would be required if undertaken for law
enforcement purposes. Employees of the intelligence
community remain obligated to report to the Attorney General
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violations of federal criminal laws. The order also gives
the Attorney General the right to participate in certain
advisory groups to the Director of Central Intelligence; to
approve procedures for use; in the collection of criminal
narcotics intelligence activities abroad; to participate in
the drafting of procedures for the conduct by the Secret
Service of activities designed to counter surveillance
against the President and others; and to take part in the
drafting of procedures for Department of Defense
coordination with the FBI in the conduct of
counterintelligence activities in the United States. Very
importantly, the order contains the statement that the FBI
is to conduct its intelligence activities under the
supervision of the Attorney General, and pursuant to such
regulations as he may establish.
Moving beyond the Executive Order, there is more in
the Administration's record that deserves praise. The
Administration has moved swiftly to secure the enactment of
legislation that would punish disclosures of the identities
of U.S. intelligence agents by persons of ill-will who have
a self-appointed mission to destroy U.S. intelligence
capabilities. The adoption of such a law is long overdue.
The Administration also deserves plaudits for its
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forthrightness in efforts to shield the intelligence
community from the adverse effects on intelligence-gathering
of the Freedom of Information Act. I do not necessarily
endorse all the details of the FOIA proposals, but their
general thrust is in the right direction.
I would add to the list of positive accomplishments
by this Administration the reestablishment of the
President's Foreign Intelligence Advisory Board. This
collection of distinguished Americans has much wisdom to
lend to the intelligence community; I have always felt that
its abolition in the Carter Administration was a mistake.
In addition, some of the President's appointments to high-
ranking positions in the intelligence agencies -- and I
emphasize the word "some" -- have been excellent, indeed
among the very best in our national security apparatus.
Last but not least, the Administration deserves
some praise for certain steps that it has not taken, despite
the urgings of some of its supporters. The President has
not simply given carte blanche to the intelligence community
to target Americans for intrusive investigations, as some
had wished; he has preserved the principle that intelligence
must be subject to the rule of law. As an example, there is
no indication that the Administration intends to propose the
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repeal of the Foreign Intelligence Surveillance Act,
establishing a judicial warrant requirement for electronic
surveillance conducted for intelligence purposes. This is a
fortunate development; the Act is one piece of legislation
that, as I know from personal experience, has worked
exceedingly well. That opinion is shared by others who have
worked with FISA at first hand, including the Director of
the FBI.
Ultimately, though, this Adminstration, like its
predecessors, cannot be judged by the undesirable things it
has declined to do; it must be judged instead on its
affirmative agenda for intelligence. For all the positive
developments that I have listed, a disturbing list of
countervailing minuses must be acknowledged. There is one
striking aspect common to each of the missteps that we have
witnessed to date: each seems to reveal an affinity for
symbolic actions apparently designed to express faith in the
intelligence community, but nevertheless accompanied by
insufficient attention to substantive effects. Now there is
nothing wrong with symbolic acts. They can be very
important. But symbolism rarely overwhelms substance, and
when the adverse effects are important, there are usually
other symbols that would serve as well.
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First, and most fundamentally, the rhetoric that
raised expectations in the intelligence community of a
radical revision, or even abolition, of the executive order
and procedures governing intelligence activities did no
service to the public interest. Since 1975, when the
Congressional investigations of intelligence were at their
height, we have had three Presidents. We have also had
three executive orders and, presumably, three sets of
implementing guidelines under which the intelligence
community has been required to function. It would be
extremely unfortunate to develop an extectation that, each
time there is a change of Administration, there will be such
basic changes in the rules of the intelligence profession.If
we are to give our intelligence employees confidence that
they are acting within the law when carrying out their
assignments, we must have some stability in the rules that
apply. There were certainly flaws in the Carter order and
the accompanying procedures, but they were not fundamental.
Indeed, the vast similarities that finally have emerged
between the text of President Reagan's order and its
predecessor testify to the essentially sound provisions of
the predecessor. In this situation, the most constructive
cause of action for the new Administration would have been
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to announce a series of perfecting amendments to the Carter
order, and to the procedures promulgated under it. By
entirely redrafting that order, and thus necessitating a
lengthy and difficult process of redrafting all the
implementing procedures, the Reagan Administration has upset
what was becoming a series of settled and comfortable
practices worked out between the intelligence agencies and
the Department of Justice on matters as to which the law is
unclear or unsettled.
Even if the kind of radical surgery performed by
this Administration were necessary, many questions remain
about the specific content of the resulting order. I know
that we will be discussing the order in detail over the next
several days. Let me concentrate on one example of a flaw
that I consider quite serious.
I mentioned earlier the importance of the Attorney
General's role in reviewing intelligence activities and the
rules for their conduct. Although that role is preserved in
many sections of the order, it is seriously undermined by
one additional, and new, provision.
Although it is not generally known, there have been
a number of instances under Executive Orders 12036 and, I
assume, 11905 in which heads of intelligence agencies have
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submitted for the Attorney General's approval procedures
required to be promulgated under one of those orders, but
which the Attorney General has not found acceptable.
Without the Attorney General's approval, of course, the
procedures can never go into effect, which leaves the
proposing agency in the highly undesirable posture of having
to conduct legally sensitive operations with insufficient
guidance and authority.
In general, these disagreements between the
Attorney General and heads of intelligence agencies arise in
one of three contexts. First, the Attorney General may
simply feel that the procedures do not conform to
constitutional, statutory or other legal standards. In such
cases, the Attorney General must entirely withhold his
approval. Second, the Attorney General may believe that the
law pertaining to the activity governed by the procedures is
so unclear that a period of experience and experimentation
is necessary before he can lend the full weight of his
authority to the approval. In such cases, the Attorney
General may limit his approval to a specific period of time
or, in the alternative, he may approve the procedures with
conditions that certain reports be made to him on the
details of operations under the procedures. Third, the
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Attorney General may be concerned that procedures proposed
by another agency trespass upon the authority and
responsibility of the FBI. In such cases, the Attorney
General must function not only as a dispassionate legal
advisor to the proposing agency, but also as defender of the
agency over which he has ultimate managerial as well as
legal authority. In this case, defending the Attorney
General's turf has more than bureaucratic importance.
Maintaining a relatively sharp division between the
primarily domestic jurisdiction of the FBI and the primarily
foreign jurisdiction of the CIA, for example, has long been
a goal of U.S. public policy.
Section 3.2 of the Reagan order imposes two
unprecedented requirements on the Attorney General. First,
he is required to provide a statement of reasons for not
approving any procedures established by the head of an
agency in the intelligence community other than the FBI. On
its face, this requirement does not appear unreasonable,
until one considers its lack of even-handedness. No other
official of the intelligence community is required to
provide any statement of reasons for failing to promulgate
procedures that meet the legal standards articulated by the
Attorney General. More importantly, however, the order
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provides that "where the agency head and the Attorney
General are unable to reach agreement on other than
constitutional or other legal grounds," the National
Security Council may establish procedures on its own.
I am deeply concerned that this provision will
erode the Attorney General's authority in two of the
circumstances I have mentioned. First, if the Attorney
General is convinced that the law is too unsettled on some
questions to permit final approval of procedures, then
arguably he has no definite "constitutional or other legal
grounds" for withholding his signature. Is the National
Security Council then empowered to resolve serious legal
doubts without the Attorney General's concurrence by
establishing procedures on its own? Similarly, when the
Attorney General is concerned primarily with protecting the
bureaucratic jurisdiction of the FBI, will the question now
be exclusively one for the NSC? Let me remind you that the
Attorney General is not a member of that group, while the
Director of Central Intelligence is. Thus, we are faced
with the propsect of the National Security Council's
overturning the Attorney General's decisions in his absence.
The ominous implications of this possibility are confirmed
by the fact that ? 1.3(b) of the order specifically
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authorizes the exclusion of the Attorney General, among
others, from NSC groups that deal with "substantive
intelligence matters." That term is not defined anywhere in
the order. Obviously, it leaves considerable room for
interpretation.
It may be that any Attorney General worth his salt
will always be able to find some legal peg to hang his hat
on when refusing to approve intelligence procedures, or when
approving them subject to the fulfillment of certain
conditions. But I doubt that we should encourage the
Attorney General to concoct legal theories in situations
where the government would be far better served by his
honest expression of the uncertainties inherent in the law,
or by a classic defense of his bureaucratic turf.
The derogation from the Attorney General's
authority that is contained in the executive order is
accompanied by a diminution of the jurisdiction of the
Intelligence Oversight Board. As most of you know, that
three-member board, established by President Ford, had
jurisdiction until recently to investigate intelligence
activities that raised questions of law or propriety.
Obviously, identifying "improper" intelligence activities
can be a difficult task, but doing so was an important part
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of the IOB's responsibilities. The Attorney General, after
all, has full responsibility and authority to investigate
alleged unlawful intelligence activities. The IOB, which
historically has had a full-time professional staff of one
lawyer, could never hope to compete with the Attorney
General in ferreting out violations of the law. The Board's
unique contribution came in helping to identify those
activities that might cause public concern, even if not
clearly prohibited by the applicable rules of law.
The Administration has stripped away the IOB's
jurisdiction over improper activities, and has limited its
responsibility to investigation of activities that are
believed to violate the Constitution or laws of the United
States, executive orders, or Presidential directives. This
change transforms the IOB into a largely redundant
institution. I believe that the government is the worse off
for the loss of the IOB's broader mandate, which still, so
far as I can determine, awaits public explanation. In the
absence of such an explanation, I can only theorize that the
intention was somehow to send a message of support to the
intelligence community. If so, the symbolic action has been
taken at the cost of the merits of the IOB's activities.
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The apparent attraction of highly symbolic actions
that bring few substantive advances and may curtail
disadvantages in the long run for the cause of U.S.
intelligence is reflected in three additional steps that the
Administration has taken.
On April 15, 1981, President Reagan granted
unconditional pardons to two former FBI officials, W. Mark
Felt and Edward S. Miller, who had been convicted of
conspiring to deprive citizens of their Fourth Amendment
'rights. In granting the pardons, the President stated that
he was acting because Felt and Miller had "acted not with
criminal intent, but in the belief that they had grasped
authority reaching to the highest levels of government."
These issues had been put directly to the jury in the case,
which necessarily had found to the contrary. The President
offered no explanation of why he felt justified in
contradicting the unanimous findings of the jury that,
beyond a reasonable doubt, Messrs. Felt and Miller indeed
acted with criminal intent. Moreover, apparently the
Justice Department was not even consulted on the matter,
although that would certainly be the normal procedure in
granting any pardon.
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The Committee on Criminal Law of the Association of
the Bar of the City of New York succinctly stated the
implications of this action: "The President's impeachment
of the jury verdicts in this case without specifying reasons
for doing so and his failure to comply with procedures
normally followed in granting pardons will inevitably send a
clear message to law enforcement officials that the
executive is prepared effectively to immunize from
punishment those officials who commit unlawful acts but
whose aims are in accordance with their view of the
'national security'". I agree with the City Bar that little
that is constructive can come out of these pardons timed and
explained as they were. Perhaps pardons at some point were
in order. But the pardons certainly could not be justified
in terms of avoiding deterrence to aggressive intelligence
activity. With executive orders and intelligence procedures
on the books, there is no reason today why any intelligence
agency employee should face serious ambiguity as to whether
a search is properly authorized and in accordance with the
rules for national security investigations. Therefore,
little deterrence to aggressive intelligence collection was
likely to result from the Felt-Miller convictions. Instead,
lack of respect for the rules is, I am afraid, likely to
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result from the pardons justified as they were. In short,
here is a case in which the symbolism is all the wrong way.
Critics of the rules adopted to govern intelligence
collection in recent years have often argued that those
rules destroy the operational flexibility necessary to
successful information gathering. In one recent action,
however, the Reagan Administration has managed to deprive
itself and its successors of some existing flexibility in
the legal standards pertaining to one of the most intrusive
collection techniques, physical searches. On three
occasions, the Justice Department in the Carter
Administration convinced the Foreign Intelligence
Surveillance Court, established pursuant to the Foreign
Intelligence Surveillance Act, to issue orders authorizing
certain physical searches to be conducted for intelligence
purposes. Previously, these searches had been conducted
solely under the inherent authority of the President, as
delegated to the Attorney General. The orders were sought
and obtained from the court on the theory that, while the
executive branch was not required to seek judicial approval
of the use of this investigative technique, it has
discretion to do so. When this discretion was exercised,
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the court, it was argued, had inherent authority to issue
the requested order.
Under these theories, which the court apparently
accepted, the executive branch enjoyed the best of all
worlds. It had the option of seeking judicial sanction for
physical searches, and in doing so, reinforcing the
contention that such searches were reasonable under the
Fourth Amendment because they had been scrutinized by an
impartial magistrate. At the same time, if any reason
suggested itself as to why such an approach to a court was
impracticable, nothing required the executive to seek an
order.
Curiously, the new Administration was not content
with this state of affairs. It applied to the court for an
order authorizing a fourth physical search, but accompanied
the application with a memorandum of law arguing that its
own application should not be granted because the court
lacked authority to issue it. On June 11, 1981, the court
granted the government's wishes, by holding that it lacked
the authority to issue the order ostensibly requested.
This result is unfortunate from several points of
view. It has the effect of binding the Reagan
Administration's successors; an approach to the court will
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now be impossible unless new legislation reverses the
court's decision. This is in contrast to the flexible
posture in which the court's earlier rulings left the
government, which gave each Administration the option of
setting its own policies on approaching the court.
In creating these new rigidities, the
Administration has also undermined the credibility of the
Foreign Intelligence Surveillance Court itself. The
submission of the physical search application that led to
the Court's order of June 11 was a sham. In what other
court would any lawyer dare to file a motion for the purpose
of provoking its denial? The courts should not permit
themselves to be manipulated in this manner. The Foreign
Intelligence Surveillance Court has been made to seem the
puppet of whichever Administration's representatives are
appearing before it, despite the fact that the entire reason
for its creation was to assure impartial, independent review
of executive branch actions. Worse, nothing has been gained
for intelligence operatives that they did not already
possess, namely, the flexibility to operate without a
warrant. One wonders, therefore, what possessed the
Administration to take this approach. If in its judgment
the Administration had concluded that the better practice
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was to proceed on the basis of executive branch authority
without the involvement of the FISA court, it would have
been preferable to do just that - without inviting the court
to rule on its own authority, or lack of it. Now, a
different Administration will have a heavy burden of
reversing precedent if it comes to a different legal
conclusion.
The Administration also made a serious misjudgment
by revoking guidelines that were issued by the Justice
Department in 1980 to govern lawsuits to enforce secrecy
agreements signed by intelligence agency employees. As most
of you recall, the Supreme Court held in Snepp v. United
States that the government could impose a constructive trust
on profits from publications written by intelligence agency
employees in violation of their fiduciary obligations to the
government. The opinion contained broad language to the
effect that such remedies might be available even where no
explicit written agreement existed, and even outside the
sphere of national security; there is also language in the
opinion indicating that prior restraints against
publications might be freely available where a fiduciary
obligation was found to exist.
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The issuance of the Justice Department guidelines
was prompted by the seriousness of the First Amendment
concerns that permeate any attempt to restrain publications.
The guidelines, which were adopted only after full
consultation with the intelligence community and extensive
revision as a result, set forth a list of criteria that
staff lawyers in the Department of Justice were to consider
in making recommendations to the Attorney General as to
whether particular Snepp-type suits should be filed. The
questions to be addressed in recommendations to the Attorney
General included whether the person publishing was aware
that he was subject to a fiduciary obligation or had
willfully violated it, as well as the degree of harm to the
national security that could reasonably be expected to
result from the publication. Virtually nothing in the
guidelines restricted the Attorney General's own discretion
to file suit. The guidelines were merely an attempt to
spell out for the public the kinds of information that would
be considered by the Attorney General in exercising his
prosecutorial discretion, so that some confidence could be
established that the vast powers conferred on the Attorney
General by the Snepp decision would be exercised in a
cautious and reasonable way.
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Despite the fact that the guidelines placed no
restrictions on his own freedom of action, the current
Attorney General saw fit to wipe them off the books. By
doing so, he has not expanded his or the government's powers
to protect intelligence sources or methods by one centimeter
beyond those available while the guidelines were in effect.
He has only succeeded in making his authority less
consistent and less accountable. Again, I fail to see any
convincing rationale, other than an empty desire for
symbolic actions perceived as "pro-intelligence," that
justify the Attorney General's steps. I am convinced that,
in the long run, unaccountable power is more vulnerable to
political attack than power exercised on the basis of a
reasonable, articulated rationale, and that therefore the
revocation of the guidelines was not truly "pro-intelli-
gence" at all.
Let me conclude by attempting to weigh the positive
accomplishments against the shortcomings of the Reagan
Administration's public record on intelligence. I have
argued that whatever may ail our intelligence system, the
rules concerning collection of intelligence about Americans
are a very minor part of the disease. Therefore, although
the new executive order is, in many respects, a reasonable
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document, it remains a form of radical therapy for a minor
ill. Like the Felt-Miller pardon, the Foreign Intelligence
Surveillance court application on physical searches, and the
revocation of the Sne guidelines, issuance of an entirely
new executive order represents an attempt to fix many things
that were not broken. In doing so, the Administration has
renewed instability in the rules for intelligence collection
and created unfortunate implications for observance of the
law, while actually decreasing both the flexibility and the
accountability of the executive branch. Therefore, while
acknowledging some substantial accomplishments, I cannot
give the Administration a high grade for its efforts up to
now. I hope that in the Administration's future actions,
substance will prevail over symbolism more consistently than
it has to date. It is my hope that the kind of
dispassionate analysis occurring at this conference will
contribute to such a turn of events.
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