INTELLIGENCE REPORT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00806R000100080024-6
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 8
• Document Creation Date: December 22, 2016
• Document Release Date: September 13, 2010
• Sequence Number: 24
• Publication Date: May 1, 1980
• Content Type: OPEN SOURCE

STAT
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AMERCAN ND7)//-'\R ASSOCIATION
COMMITTEE ON
LAW AND NATIONAL
SECURITY
INTELLIGENCE REPORT
Senate Actions Affecting Intelligence
Since its introduction in February, the comprehensive
charter legislation, S.2284, has been in a state of flux.
The attempt by Congress to write a detailed charter for
the U.S. intelligence agencies appears to have collapsed
in a stalemate between the Carter Administration and
the Hill. Election-year politics seem to have created a
climate for delay of any action until next year. After
having reworked and shortened the original 172-page
bill several times, and after many closed sessions of the
Senate Intelligence Committee, it is obvious that no
version is acceptable to all parties involved.
The Intelligence Accountability Act of 1980, the most
recent and shortest (7-page) version, was considered by
the Committee at its closed April 30 meeting. This bill
amends the National Security Act of 1947 and provides
that only the Senate and House Intelligence Committees
be briefed by the Director of Central Intelligence of "any
significant anticipated activity," prior notice of such
activities is limited to the chairman and ranking
minority members of each Committee in extraordinary
circumstances as determined by the President; makes it
a crime, punishable by jail sentences of five or ten years
and fines up to $50,000, for an official or former official
of the government to disclose the identity of an
intelligence agent; provides that any actions by an
intelligence agency be done according to procedures
approved by an agency director; provides for the
Attorney General to approve agency guidelines for
activities directed at U.S. persons; and modifies the
provisions of the Freedom of Information Act to protect
classified information and to limit judicial review. This
draft is being considered by the full Committee as this
newsletter goes to press.
The Senate Foreign Relations Committee held a
hearing on April 17 on the role and accountability of the
National Security Advisor. Testimony was heard from
Warren Christopher, Deputy Secretary of State; Brent
Scowcroft, former Assistant to the President for Na-
tional Security Affairs; Thomas Frank and I.M. Destler.
House Actions Affecting Intelligence
The House Intelligence Committee has continued
hearings on the comprehensive charter legislation,
H. 8.6588. Hearings were held on April 15 and 22 with
testimony heard from journalists, clerics and academi-
cians, focusing on section 132 which would prohibit
their use by intelligence agencies as cover. A summary of
the testimony is included elsewhere in this newsletter.
The Oversight Subcommittee commenced hearings on
prepublication review and secrecy agreements on April
16 and 24 and continued these on May 1st. This interest
is a direct result of the recent Supreme Court decision in
the Snepp Case. The subcommittee expects to continue
its study of the matter in May, and a summary of the
April testimony is included elsewhere in this newsletter.
The House Judiciary Committee's Civil and Constitu-
tional Rights Subcommittee met on April 24 to resume
its consideration of the graymail legislation, H.R.4736
and H. R.4745. The CIA, Department of Defense and
Department of Justice offered further evidence of the
administration's desire for passage of this needed
legislation. A summary of the testimony is included
elsewhere in this newsletter.
On April 30, the House Intelligence Committee
decided in open session not to take any action on the
Hughes-Ryan Amendment, but rather to leave intact the
language proposed by the House Foreign Affairs
Committee. The proposed new rule would limit report-
ing of covert actions to the House and Senate Intelli-
gence Committees. This language was adopted March
12 as part of this year's foreign aid legislation, H. R.
6942, International Security and Development Authori-
zation FY81. (See April newsletter.) The foreign aid bill
will now move to the floor of the House. The
Intelligence Commitee agreed, without formal vote, to
Rep. Aspin's proposal to pose no objection to the
separate law, leaving open the possibility of the Intelli-
gence Committee coming up with its own version later
as part of a charter.
Inside
ABA Activities ..................................... p.2
Senate Intelligence Hearings ......................... p.2
Presidential Protection of Intelligence ................. p.3
House Intelligence Hearings .......................... p.4
Report on Canadian Intelligence ..................... p.5
Excerpts from Schlesinger Testimony ................. p.6
ABA/University of Chicago Conference ............... p.7
House Graymall Hearings ........................... p.7
CIA Study of Soviet Propaganda .................... p.8
Editor: Raymond J. Waldmann, Esq.; Intelligence Consultant, Standing Committee on Law and National Security,
ABA. Florence D. Bank, Associate Editor. Suite 600, 1101 Connecticut Avenue, N.W., Washington, D.C. 20036
Copyright ? 1980 American Bar Association
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ABA Activities Affecting Intelligence
Standing Committee
The Standing Committee on Law and National
Security met in Longboat Key, Florida on April 17, 18
and 19 to review its present and future activities. Among
the many issues discussed were the draft report on the
CIA charter as prepared by the Charter Advisory
Group, chaired by Committee Consultant Waldmann,
the Conference to be held at the University of Chicago
Law School in June, the Portland and University of St.
Louis Conferences, and future intelligence-related proj-
ects. The Charter Advisory Group is preparing a report
for the Committee on legal issues in pending legislation.
The University of Chicago Conference will explore legal
issues involved in charter legislation. See page 8 for the
preliminary program.
Section of Individual Rights and Responsibilities
Following a presentation by Mr. Jerry Berman of the
ACLU, Committee Consultants Waldmann and Scalia,
accompanied by Axel Kleiboemer, presented a summary
of the Charter Advisory Group's consideration of the
CIA charter legislation before a meeting of the Council
of the ABA Section of Individual Rights and Responsi-
bility in Washington on April 25.
This presentation focused on the need for balance in
legislating intelligence chartes, the complexities of the
present legislation and the differences between the FBI
Charter, on which the Section had already taken a
position, and the intelligence charters, where national
security issues and positive intelligence collection are
more important considerations than collection of evi-
dence for criminal prosecution. As a result of the
presentations, the Section's Council deferred action on a
draft resolution and instead will call for a thorough
review of the issues by the ABA.
Senate Select Committee on
Intelligence-Intelligence Charter
March 31, 1980
Testimony focused on the issue of the structure of the
intelligence community and the quality of intelligence
analysis. Witnesses included Andrew W. Marshall,
Director of Net Assessment, OSD; Lt. General D.O.
Graham, Former Director, DIA; Paul Nitze; David
Kahn; Prof. Roy Godson; and Graham Allison.
Mr. Marshall urged the Congress to endorse the
concept of the highest level of intelligence analysis by
adopting mechanisms to attract the most talented
individuals. He advised that the necessary resources must
be supported and encouraged both within and outside the
intelligence community.
General Graham warned that competition within the
community and political considerations often impede
the analytic process. He posed a solution that might
separate the analytic side of the CIA from the Direc-
torate of Operations, which would then split it into two
individual agencies. He also suggested that the size,
independence and competence of the Defense Intelli-
gence Agency be strengthened. He said, "It is less
important to decide where the analytical resources of the
intelligence community should be located than to decide
that there should be more than one, and that both
should have equal access to the nation's policymakers."
Mr. Nitze addressed the proper relationship between
the policymakers and the intelligence estimators, and
the problems of net assessments and estimating inten-
tions. He blamed past shortcomings in past history on
these difficulties. He advised that the principal role of
Congress should be that of oversight of the Executive
Branch. He went on, "From that point on, the esti-
mators should be backed up in doing their job as
rigorously and objectively as they can, even if their
estimates deviate from the then prevailing mood of the
Executive Branch, the Congress, or the public."
David Kahn (author of The Codebreakers) endorsed
the intention to place NSA under statutory guidelines to
prevent the recurrence of past abuses. Stating that
revelation of cryptologic information is often thought to
be more dangerous than it is in reality, he proposed
three specific recommendations: (1) thoroughly oversee
and investigate the cryptologic agencies; (2) bring NSA
within the purview of the FOIA; and (3) reword charter
section 613(a)(16) to read, "ensure that cryptologic
information is classified and declassified in accordance
with applicable law....
Prof. Roy Godson presented essentially the same
testimony he gave to the House Committee, summarized
in the April Report.
April 1, 1980
With only Senator Huddleston (D-Ky.) present, the
following people testified: a panel with Robert Lewis of
the Society of Professional Journalists, Jack Landau of
the Reporter's Committee for Freedom of the Press, and
Joseph Sterne of the American Society of Newspaper
Editors; a panel with Reed Irvine of Accuracy in Media,
Marshall Perlin of the Fund for Open Information and
Accountability and Katherine Meyer of the Freedom of
Information Clearinghouse; and a panel with Melva
Mueller of the Women's International League, Ethel
Taylor of the Women's Strike for Peace, Brennon Jones
and Peter Weiss of the Center for Constitutional Rights.
Representing Sigma Delta Chi, an organization with
35,000 members, Mr. Lewis urged the Senate to curtail
the CIA's censorship powers over former employees. He
suggested that an option to the present contract
requirement might be a ban only on writings that
irreparably harm the national security or the setting of a
five-year time limit during which former CIA employees
would have to submit manuscripts for clearance. Joseph
Sterne, editor of The Baltimore Sun, said the legislation
would "pull down a curtain of secrecy that is simply
unnecessary" on legitimate historical and journalistic
research. Asked whether they objected to the use of
journalists by the CIA, the panel agreed that a voluntary
exchange was acceptable, but a formal contract for a
continuing arrangement was not.
Reed Irvine, spokesman for Accuracy in Media,
strongly opposed the ban on use of journalists, warning
that intelligence services all over the world use this
effective cover and "to deny this tool to the CIA, while
leaving it available to our enemies" would be "foolish."
Katherine Meyer strongly objected to section 421(d) of
S.2284 and said that any legislation concerning the
public's right of access through the FOIA should be
through amendments to the FOIA itself. She stated it is
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"astonishing" that the CIA seeks to impose greater
secrecy.
The Fund for Open Information and Accountability
charged that S.2284 goes even further than the Huston
Plan and gives "carte blanche to the executive" in the
area of national and internal security, national defense
and foreign relations. In even harsher language, Peter
Weiss contended that the bill "... makes the chief legal
officer of this country, the Attorney General, into the
chief dispenser of illegality" and "a law which legalizes
an illegal act is the ultimate perversion of the Law ..."
In closing, he said that he looked forward to challenging
the courts in the future should this legislation become
law.
April 2, 1980
Senators Huddleston, Jackson, Moynihan, Chafee,
Garn and Wallop heard testimony from James R.
Schlesinger, former CIA Director for six months in
1973. In very critical language, Schlesinger appealed to
the Committee to amend existing legislation rather than
repeal it. Reflecting that intelligence agencies must
operate in a "penumbra of jurisprudence," he said a
detailed charter would make insufficient allowance for
the flexibility required under unforeseen circumstances.
He added that, ". . . the quest for tablets of stone by
which to guide the intelligence community is both
misguided and self-defeating." Excerpts are found
on page 7.
Huddleston immediately challenged Schlesinger's
statement by retorting that Turner, Webster, Inman,
Colby and other present and former officials had
endorsed the legislation as necessary. Schlesinger ad-
vised that a strong joint resolution by the Committee
restoring confidence in our intelligence services would
be of greater value. In an exchange with Senator
Moynihan, he agreed that the process of bureaucratiza-
tion acceptable for most agencies is inappropriate when
dealing with intelligence.
Schlesinger agreed with Senator Jackson that an
"unwritten constitution" for the CIA with oversight by
Congress is a better approach. Jackson reiterated a
point made previously during hearings that the greatest
single mistake has been the failure of Congress to set up
one joint intelligence committee. Jackson supported
Schlesinger's plea for a system within the intelligence
community that would follow the devil's advocacy
process whereby dissent would be both allowed and
encouraged. Schlesinger also recommended establish-
ment by Congress of an awards system for intelligence
service personnel for recognition of their efforts.
Sen. Huddleston challenged Mr. Schlesinger's state-
ment that the proposed charter would have prevented
the type of rescue performed by the Candians in Iran.
They agreed only that this could better be debated in
closed session.
A panel followed to address the question of counter-
intelligence. Appearing before the Committee were
William Harris, Dr. E. Drexel Godfrey, Newton Miler
and Eugene Burgstaller. Mssrs. Miler and Burgstaller
had served with the CIA for some 30 years each. Due to
lack of time, each summarized his statement and was
asked to respond to written questions. In essence, they
advised that unless and until counterintelligence is given
the full attention and support it deserves, our intelli-
gence capabilities will be stunted. They reconfirmed
earlier testimony that an effective intelligence system
requires flexibility and that the proposed legislation
would only prove to atrophy what exists.
Presidential Protection of
Intelligence Information
The President's Inherent Powers
The basic power of the President to protect informa-
tion in the Executive Branch, even from the other two
branches of the Government, is not found in the
Constitution but is believed to be inherent in his office.
This has been asserted by every President, beginning
with Washington, and accepted by the Judiciary and the
Congress, although recognition of such privilege has not
been without exceptions and qualifications. The Presi-
dent, in withholding information, also may rely, in some
circumstances, on section 2, Article It, U.S. Constitu-
tion (his authority as Commander in Chief of the Army
and Navy), and section 3, Article II (his duty to see that
the laws are faithfully executed).
The Nixon case (418 U.S. 683 (1974)) is the landmark
case on the Executive power to withhold information.
That case arose when the special prosecutor, in a
criminal proceeding against former Attorney General
Mitchell, convinced the trial court that the interests of
justice required certain tapes and documents then in the
possession of President Nixon. President Nixon de-
clined to produce these materials, claiming Executive
privilege. President Nixon's refusal was overturned.
The Court held unanimously, firstly, that it had the
Constitutional power and duty to decide finally all
claims of Executive privilege. The Court explicitly
stated that its power to decide Constitutional questions
and the President's power of Executive privilege were
implicit in their Constitutional grants of authority.
Secondly, that, as the material sought was necessary to
the proper functioning of the Federal court system in a
criminal case, it must be released in this case. The
opinion noted, while deciding against the President, it
reaffirmed the concept of Executive privilege but that
the high privilege it would accord to a claim based on
military, diplomatic, or sensitive national security se-
crets was lacking in this case. It quoted (at p. 710 of its
opinion) C. & S. Airlines v. Waterman S.S. Corp., 333
U.S. 103 (1948), as follows:
"The President, both as Commander-in-Chief and as
the nation's organ for foreign affairs, has available
intelligence services whose reports are not and ought not
to be published to the world. It would be intolerable that
courts, without the relevant information, should review
and perhaps nullify actions of the Executive taken on
information properly held secret."
It also quoted from United States v. Reynolds, 345
U.S. 1, 10 (1953), as follows:
"It may be possible to satisfy the court, from all the
circumstances of the case, that there is a reasonable
danger that compulsion of the evidence will expose
military matters which, in the interest of national
security, should not be divulged. When this is the case,
the occasion for the privilege is appropriate, and the
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court should not jeopardize the security which the
privilege is meant to protect by insisting upon an
examination, even by the judge alone in chambers."
It can be expected that Executive privilege when
claimed properly will, except in unusual cases, serve to
protect intelligence information in the hands of the
Executive Branch, and may, in certain instances, as an
inherent Constitutional power, allow the President to
override laws (such as FOIA) requiring the divulging of
general classes of information. The Court in the Nixon
case did not, however, state that it would give the
President an absolute privilege even on onational
security matters. There the matter rests.
Recent Studies
United States v. Nixon triggered an explosion of
books and law review articles, as well as other materials,
concerning the authority and the limits of Executive
privilege and the -protection of Executive information.
Among the leading law review articles have been those
of A.D. Sofaer (Executive Power, 1977 Duke Law
Review 1 (1977)), Raoul Berger (War, Foreign Affairs,
and Executive Secrecy, 72 Northwestern University Law
Review 309 (1977)), Morton Halperin and Daniel
Hoffman (Secrecy and the Right to Know, 40 Law and
Contemporary Problems 132 (1976)), and Abe Fortas
(The Constitution and the Presidency, 49 Washington
Law Review 987 (1974)). A long list of recent books,
articles, and other materials, on Executive privilege is
contained in the Congressional Research Service Report
No. 79-158, April 2, 1979.
-Prepared by Maj. Gen. Lawrence Williams, U.S.
Army Ret.
House Permanent Select Committee on
Intelligence-Intelligence Charter
April 15, 1980
Hearings resumed on H.R.6588, the National Intelli-
gence Act of 1980, with a focus on section 132 which
would prohibit the use by intelligence agencies of certain
types of cover (e.g. academicians, clerics, journalists,
Peace Corps, etc.), but would not prohibit their
voluntary cooperation. Appearing as a panel were:
Reverend Anthony Bellagamba, Executive Secretary,
U.S. Catholic Mission; Dr. James Wood, Jr., Executive
Director, Baptist Joint Committee on Public Affairs;
Dr. Ernest W. Lefever, President, Ethics and Public
Policy Center; Professor Douglas Rendleman, Ameri-
can Association of University Professors; and Dr.
Charles A. Moser, George Washington University.
Reverend Bellagamba appealed to the representatives
to delete section 132 from the legislation for four specific
reasons which he labeled: historical, circumstantial,
sociological, and religious grounds. He elaborated by
emphasizing the incompatibility between the role of the
missionary and the espionage agent, the repeated
explusions of missionaries from various countries due to
accusation of assisting intelligence agencies, the possible
erroneous linkage between missionaries and the CIA,
and the damage incurred on the delicate services
rendered by missionaries. He voiced regret that the
National Council of Churches had not been invited to
appear before the House to oppose this section as they
had before the Senate Committee.
Dr. Wood stated that the Baptist position, at least on
charters, was in absolute agreement with that of the
Catholics. He cited passage of this section as a blatant
affront to the separation of church and state guaranteed
by the Constitution, a perversion of the church's
mission, and a death sentence for innocent missionaries.
Dr. Lefever questioned the propriety of intelligence
charters in the first place and the wisdom of denying the
use of any particular group or profession as cover
specifically. He stated, "All American citizens, regard-
less of station or profession, have an equal obligation to
protect the state and the institutions and values for
which it stands."
Professor Rendleman reviewed the conflict between
academic values and the critical role of intelligence. He
advocated that comprehensive guidelines are needed for
the intelligence community which prohibit relationships
that tend to violate the ethics of other professions. Dr.
Moser, in contrast, objected to the blanket prohibition
under consideration, insisting that "... the good achieved
by such deception outweighs the evil of the deception
itself."
House Permanent Select Committee on
Intelligence-Secrecy Agreements
April 16, 1980
The Oversight Subcommittee opened hearings on
secrecy agreements and prepublication review. Daniel C.
Schwartz, General Counsel, National Security Agency;
Lloyd E. Dean, Security Officer, FBI; George A.
Zacharias, Vice Deputy Assistant Director for Security
Services, Defense Intelligence Agency; Ernest Mayer-
field, CIA; and Charles Wilson testified. These hearings
reflect renewed interest in this area since the Snepp
Supreme Court decision. (See April newsletter.)
Starting with the information that NSA does not have
a prepublication review requirement, Mr. Schwartz
reviewed the procedure for present rather than former
employees. He explained the administrative procedure
for such review applicable to current Agency employees
and the threat of possible administrative action or
criminal prosecution as a strong deterrent. He men-
tioned an on-going internal review by the DIA of the
possibility of using a secrecy agreement, including
prepublication review, that would apply to NSA as well
as other agencies.
Appearing on behalf of Director Webster, Lloyd
Dean reviewed the FBI employment agreement, in effect
since 1976 and now under study as a result of the Snepp
decision. He noted that the agreement's objectives are to
provide an effective means of preventing unauthorized
disclosure of information that could: (1) result in
impaired national security, (2) place human life in
jeopardy, (3) result in denial of due process to those
under FBI investigation, or (4) prevent the FBI from
discharging its responsibilities.
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Mr. Zacharias stated that DOD does not have any
standard form for all of its components. He provided
the Committee with DIA form 22 (signed by each newly
employed or assigned person with access to classified
information) and form 364 (signed by personnel upon
termination of employment). He advised that the
wisdom and utility of a standard secrecy form is
currently under study. He also stated that there is a
long-standing DOD policy governing review of informa-
tion proposed for public release that is independent of
any signed agreement to submit for review.
April 24, 1980
The Oversight Subcommittee continued hearings on
ramifications of the Snepp decision on April 24 with
testimony from Theodore J. Jacobs, Director, Fund for
Constitutional Government's Project for Open Govern-
ment; Henry R. Kaufman, Vice President and General
Counsel, Association of American Publishers; and
Robert Lewis, Chairman, Freedom of Information
Committee, Society of Professional Journalists. Each
was concerned with the Snepp decision and the interpre-
tation of the scope of that decision.
Mr. Jacobs warned that, "If these agreements are
deemed to be necessary, however, they should be
uniform, narrow in scope and coverage, and uniformly
enforced." He insisted that the review system was biased
against critics of the intelligence community, ". . . while
the former Directors, supporters, and high-ranking
officials are sometimes immune." He urged Congress to
examine the problem in depth.
Mr. Kaufman insisted that lifelong CIA secrecy
agreements are unconstitutional under the First Amend-
ment. He recommended that the following areas be
pursued: (1) Snepp sanctions must not be applied to
publishers or others without direct, contractual relation-
ships to the government; (2) prepublication review
contracts should be strictly limited to employees with
access to properly classified information involving
foreign intelligence and counterintelligence; and (3) the
ultimate authority for censoring materials be lodged in
an independent reviewing agency. He advocated an
approach by which government employees, like the
press and other citizens, publish without prior restraint
at their own risk. He asked Congress to study the
jurisdictional, substantive, and procedural criteria in-
volved, as well as potential remedies.
Robert Lewis emphasized the "chilling effect" the
Snepp decision will create, asking whether any govern-
ment agency ought to be the sole arbitor in such
decisions. He offered the following alternatives to the
contract requirement: (1) a statute of limitations,
perhaps of five years, after which former CIA employees
would no longer have to submit manuscripts for
clearance; (2) reliance on criminal statutes; and (3)
collection of civil damages only when the government
has proven a former CIA employee's writings had
disclosed classified information and impaired the na-
tional security.
Canadian Review of
RCMP Intelligence Activities
In the 1970's, Canada was shaken by allegations of
wrongful activities on the part of the Royal Canadian
Mounted Police, strikingly similar to some of the CIA
and FBI disclosures in this country. The reaction of that
government was quite different from ours. In July of
1977, the Canadian Government established the Com-
mission of Inquiry Concerning Certain Activities of the
Royal Canadian Mounted Police, composed of a
prominent jurist as chairman, and two prominent
members of the bar, with substantial staff support.
The Commission has recently published its First
Report, dealing with that portion of its charge relating
to the "adequacy of the laws of Canada as they apply
to ... policies and procedures" governing the "activities
of the R.C.M.P.... in the discharge of its responsibility
to protect the security of Canada." The Report addres-
ses the laws governing and penalizing the disclosure of
national security and criminal justice information-the
Official Secrets Act, espionage laws and freedom of
information legislation. As a whole, the recommenda-
tions (like the current Canadian law) are much more
protective of sensitive information than the laws in
effect and the proposals currently put forward in this
country. Among the recommendations are the follow-
ing:
Criminal Disclosure Legislation
4. WE RECOMMEND THAT new espionage legis-
lation cover the disclosure of, or an overt act with
the intention to disclose, information whether
accessible to the public or not, either from
government sources or private sources if disclo-
sure is, or is capable of being, prejudicial to the
security of Canada.
5. WE RECOMMEND THAT new espionage legis-
lation include the following basic provision with
respect to the offence of espionage:
No person shall:
(a) obtain, collect, record or publish any infor-
mation with the intent of communicating
such information to a foreign power, or
(b) communicate information to a foreign
power,
if such person knows that the foreign power will
or might use such information for a purpose
prejudicial to the security of Canada or acts with
reckless disregard of the consequences of his
actions to the security of Canada.
9. WE RECOMMEND THAT new legislation with
respect to the disclosure of government informa-
tion should make it an offence to disclose without
authorization government information relating
to security and intelligence.
10. WE RECOMMEND THAT new legislation
should empower the court trying an offence of
unauthorized disclosure of government informa-
tion relating to security and intelligence to review
the appropriateness of the security classification
assigned to such government information.
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14. WE RECOMMEND THAT the communication
of government information relating to security
and intelligence or the administration of criminal
justice by a person who receives such informa-
tion, even though such information is unsolicited,
be an offence.
15. WE RECOMMEND THAT it be an offence to
retain government documents relating to security
and intelligence or to the administration of
criminal justice notwithstanding that such docu-
ments have come into the possession of a person
unsolicited and that there has been no request for
the return of such documents.
Grarmail
18. WE RECOMMEND THAT with respect to
section 14(2) of the Official Secrets Act which
permits in camera proceedings that:
(a) the provisions of section 14(2) be retained
and made applicable to all offences, either
offences in new legislation or in the Crimi-
nal Code, in which the Crown may be re-
quired to adduce evidence the disclosure of
which would be prejudicial to the security
of Canada or to the proper administration
of criminal justice....
38. WE RECOMMEND THAT the provisions of
section 41(2) of the Federal Court Act not apply
to security and intelligence documents or their
contents and that new legislation be enacted
providing that
(a) when a Minister of the Crown claims a
privilege for such information on the
grounds that its disclosure would be in-
jurious to the security of Canada; or
(b) any person hearing any judicial proceed-
ings is of the opinion that the giving of any
evidence would be injurious to the security
of Canada
the matter shall be referred to a judge of the
Federal Court of Canada, designated by the
Chief Justice of that court, to determine whether
the giving of such evidence should be refused....
Freedom of Information
31. WE RECOMMEND THAT there be a specific
exemption from disclosure in freedom of infor-
mation legislation of the whole of all security and
intelligence documents relating to or consisting
of:
I. security and intelligence operations
2. security intelligence information
3. information obtained from confidential
sources
4. policy papers and intelligence analyses
5. manuals and directives of security and in-
telligence agencies
6. management, personnel and financial in-
formation of security and intelligence agen-
cies sources information
7. resources information
8. information received in confidence from
foreign governments and security and in-
telligence agencies
9. structures of security and intelligence
agencies
10. intra-governmental structural relationships
11. inter-governmental structural relationships
33. WE RECOMMEND THAT any documents not
included in the previously mentioned exemptions
which could, if released, reasonably be expected
to threaten the security of Canada, be exempted
from disclosure under freedom of information
legislation.
34. WE RECOMMEND THAT any information
relating to the administration of criminal justice
the disclosure of which would adversely affect
(a) the investigation of criminal offences;
(b) the gathering of criminal intelligence on
criminal organizations or individuals;
(c) the security of prisons or reform institu-
tions; or,
(d) might otherwise be helpful in the commis-
sion of criminal offences
be exempted from disclosure under freedom of
information legislation.
Recommendation 37 would provide for admin-
istrative review of denials of FOIA requests on
security or criminal justice grounds-but no
judicial review except for criminal justice denials
based on the limited grounds set forth in clauses
(c) and (d) of Recommendation 34.
Copies of the First Report may be obtained by mail
from Canadian Government Publishing Centre, Supply
and Services Canada, Hull, Quebec, Canada K 1 A OS9
(Catalogue No. CP32-37/ 1980-IE, ISBN 0-660-10493-8.
Price: $5.95 Canada, $7.15 other countries). In addition,
three background studies prepared for the Commission
have been published and are available from the same
address:
"Parliament and National Security" by Prof. C.E.S.
Franks, Queens Univ. ($3.50)
"Ministerial Responsibility for National Security" by
Prof. J.U.J. Edwards, Univ. of Toronto ($5.25).
"National Security: The Legal Dimensions" by Prof.
M.L. Friedland, Univ. of Toronto ($8.00).
Excerpts from Statement of
James R. Schlesinger, April 2, 1980
The question before this Committee and the Congress
is not whether American intelligence should have a
charter or enabling legislation. Such legislation has
existed in skeletal form since the National Security Act
of 1947. The question before you is whether to repeal the
existing legislation and to replace it with a lengthy and
detailed charter specifying countless do's and don'ts,
establishing (until such legislation is again changed) the
criteria, limits, and obligations not only for the intelli-
gence community and the American people but for the
entire international audience as well.
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I submit that the proper path to follow to have an
effective intelligence community for the United States is
to retain the skeletal form and to amend it as necessary.
Repealing the existing legislation and replacing it with
newly formulated legislation will, by itself, create
confusion by wiping out over 30 years of court
decisions. Substituting a detailed charter will restrict
future flexibility, severely handicap liaison relationships
and agent recruitment, and grossly curtail special
operations capabilities. I believe a detailed charter is an
inherently bad idea-that would permanently damage
the intelligence capacility of the United States.
... While virtually all democratic states maintain
intelligence establishments, it is significant that other
democracies have not seriously considered this type of
legislation. The comprehensive legislative charter is an
idea that was germinated in the investigations and
exposures, much of it ill-advised, that started in 1975.
The comprehensive charter is an idea whose time has
passed-I believe beneficially passed. Much has been
said in recent months about the desirability of easing the
restrictions that have, been placed upon the CIA in
recent years. It is sometimes suggested that the charter
would assist in that process. Regrettably, it would not.
A charter would intensify restriction. And more restric-
tion, by any other name, is still more restriction.
In the last five years, incalculable damage has been
done to the U.S. intelligence establishment. While we
have been engaged in a quest for purity and in extended
discussion of the meaning of righteousness (or of self-
righteousness), the intelligence instrument itself has
been deteriorating. Morale has declined. Recruitment,
internal and external, has suffered. The capacity for
intelligence gathering has suffered concomitantly; both
special operations and counterintelligence have been
severely damaged. Our actions have been viewed with
amazement by foreign intelligence agencies and foreign
governments-with regret and apprehension by our
friends and sheer schadenfreude by our enemies. Thus,
the immediate goal for this Nation-and for this
Committee-should be the rebuilding and revitalization
of the intelligence establishment.
Above all, it is time to stop the self-abuse. The
practice of self-flagellation is not confined to Shiite
Muslims in the month of Moharram. The United States
has spent much of the last decade indulging in self-
flagellation; much of it, though certainly not all, at the
expense of the intelligence community....
... Intelligence agencies must operate in a penumbra
of jurisprudence, in the grey area of the law. Much
effort-misguided effort-has been devoted to attempt-
ing to compress all intelligence operations within a
narrowly defined framework of law. To the extent that
such efforts are pushed to their logical conclusion, it will
inevitably result in intelligence operations far purer than
the world's experience indicates is practicable-and far
less effective than this Nation requires....
This Committee has a creative role to play in the
larger national interest. What the intelligence commu-
nity today requires is time and the room for maneuver in
which to rebuild. It requires stability. It requires a
renewed sense of mission. It requires a clear and
continuing indication of public support. In these mat-
ters, I hope that this Committee can guide the way.
ABA/UNIVERSITY OF CHICAGO
LAW SCHOOL CONFERENCE ON
INTELLIGENCE LEGISLATION
Thursday, June 26 Dinner: Honorable Frank
Carlucci
Friday, June 27 Welcoming Remarks: Morris
Leibman, Dean Caspter and Honorable John
Marsh
Keynote Speaker: Honorable James Schlesinger*
Session I.? Overview of Intelligence Charters
Moderator: Raymond Waldmann
Speakers: William Miller, Kenneth Bass and
Professor Roy Godson
Session II: The Role of the Judiciary and the
Standards Applied to Intelligence Operations
Moderator: Professor Antonin Scalia
Speakers: Honorable Edward Levi,
Jerry Berman and Professor Robert Bork
Luncheon Speaker: Honorable William Webster
Session III: The Congressional Role
Moderator: Anthony Lapham
Speakers: Representative John Ashbrook,*
Professor Ernest Gellhorn and Frederick Hitz
Saturday, June 28
Session IV.? The Public's tcight to Know and
Operational Secrecy
Moderator: Michael Uhlmann
Speakers: Daniel Silver, Floyd Abrams and
Angelo Codevilla
Luncheon Speaker: Mr. Frank Barnett
*Invited
House Judiciary Committee Civil and
Constitutional Rights Subcommittee-
Graymail
April 24, 1980
Hearings on H.R.4736, Graymail legislation, resumed
after a hiatus with testimony from the Department of
Justice, the Department of Defense and the CIA.
George Clarke, Deputy General Counsel, CIA, made
it clear at the outset that passage of either H.R.4736 or
H.R.4745 (the Administration proposal) would be a
significant improvement over the present situation. He
advised that current law makes criminal litigation of
cases involving classified intelligence information se-
verely complex. He reviewed that both bills provide for
a pretrial conference to consider classified information,
permit this conference to be held in camera and provide
for an interlocutory appeal, allow alternative forms of
disclosure, and permit writings, recordings, and photo-
graphs of classified information to be admitted into
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evidence without change of classified status. All con-
curred that final agreement on a graymail bill was near,
and that the required and needed uniformity for these
procedures would be most welcome by all concerned
parties.
CIA Study Details Soviet Covert
Action and Propaganda
On February 6, 1980, Mr. John McMahan, Deputy
Director for Operations, Central Intelligence Agency,
presented to the Permanent Select Committee on
Intelligence of the House of Representatives by far the
most detailed analysis yet made public of Soviet covert
action techniques and the manner in which these
techniques are orchestrated with Soviet propaganda and
diplomacy. The study, which was prepared at the
request of Congressman Ashbrook, ran over 100 type-
written pages, and was supplemented by an annex
containing 16 examples of Soviet forgeries of U.S.
Government documents and a technical analysis of these
forgeries.
In dealing with covert action techniques, examples
were given of the Soviet use of propaganda, clandestine
radios, foreign communist parties and international
front organizations and "friendship societies", agents of
influence, and disinformation to manipulate foreign
governments. The study also dealt with the Soviet use of
economic warfare and Soviet support for terrorist and
paramilitary operations.
The study presented a detailed analysis of the Soviet
campaign against the proposed modernization of the
NATO Theatre Nuclear Forces (TNF), focusing on the
Soviet campaign against the "neutron bomb". These
studies underscored the skillful orchestration of diplo-
macy, propaganda and covert techniques in support of a
single objective.
In the case of the "neutron bomb" it was pointed out
that in late January, 1978 every Western government
received a letter from Leonid Brezhnev warning that the
deployment of the "neutron bomb" would constitute a
serious threat to detente. These announcements received
heavy media coverage worldwide. On the heels of this,
Western parliamentarians received similar letters from
members of the Supreme Soviet and Soviet trade union
officials sent letters to union organizations and leaders
in the Western countries. The next stage was a whole
series of conferences under the auspices of well-known
international front organizations, sometimes in partner-
ship with other organizations like the International
Atomic Energy Agency, which is a United Nations
body. In late March of 1978, the Dutch Communist
Party (CPN) was instrumental in organizing an "Inter-
national Forum Against the Neutron Bomb" in Amster-
dam, which brought in sympathizers from all over
Europe and culminated on March 19 in a march of some
40,000 anti-"Neutron bomb" demonstrators.
In passing, it should be noted that while the appella-
tion "neutron bomb" has been used occasionally-and
incorrectly-in the Western press, the Soviets have
employed this appellation consistently in their propa-
ganda because it has far greater scare potential. To be
precise, we should speak of "neutron weapon". Neutron
weapons, by their nature, are designed for discriminat-
ing use on the battlefield and not for destroying cities.
They do not pose a danger to the civilian population
because they do not produce radioactive fallout and
their lethal effect would have a maximum radius of
about 1000 yards. However, used primarily as artillery
shells, they would be deadly to tank formations because
the burst of neutrons could penetrate the heaviest armor
to kill or incapacitate tank crews. The possession of an
arsenal of such weapons would put NATO in a position
to nullify the overwhelming advantage which the Soviets
now possess in tank divisions. That is why the Soviets
singled out the proposed deployment of neutron wea-
pons for special attention. And that is why their
propaganda presented the "neutron bomb" as the most
horrifying of all nuclear weapons, when, in reality-as
nuclear weapons go-it is without question the most
humane.
Summarizing the scope of the Soviet effort on the
"neutron bomb," Mr. McMahan estimated that, over a
three year period, the Soviets have put over $100,000,000
into this campaign in the form of subsidies to West
European communist parties and front groups, the
organization of front operations and gatherings, the
suborning of non-communists, etc. This concerted
effort, the report noted, paid off. It quoted Janos
Berecz, Chief of the International Department of the
Hungarian Communist Party, as saying that "the
political campaign against the neutron bomb was the
most significant and most successful since World War
II." And it noted that the Soviet ambassador to the
Hague was subsequently decorated by his government in
recognition of the success which the Dutch Communist
Party had had, under his direction, in organizing the
March 17-19 demonstration in Amsterdam, which was
the high point of the anti-neutron bomb campaign.
-Prepared by David Martin.
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