LETTER TO MR. FRANK CARLUCCI FROM MORRIS I. LEIBMAN

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP91-00901R000100230008-7
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 20
• Document Creation Date: December 14, 2016
• Document Release Date: August 6, 2001
• Sequence Number: 8
• Publication Date: March 27, 1980
• Content Type: LETTER

STANDING
COMMITTEE ON
LAW AND NATIONAL
SECURITY
CHAIRMAN
Morris 1. Leibman
Suite 3200
One First National Plaza
Chicago, IL 60603
Robert H. Bork
New Haven, CT
Gordon F. Engeler, Jr.
Mountain Home, AR
Rita E. Hauser
New York. NY
Max M. Kempelman
Washington, DC
John O. Marsh, Jr.
Washington, DC
John G. McKay, Jr.
Miami, FL
John Norton Moore
Charlottesville, VA
Walter E. Ricks, III
Raleigh, NG
J. W. Riehm
Englewood Cliffs, NJ
Hobart Taylor, Jr.
Washington, DC
ADVISORY COMMITTEE
CHAIRMAN
William C. Mott
1101 17th Street, N.W.
suite 810
Washington, DC 20036
BOARD OF GOVERNORS
LIAISON
Ernest H. Fremont, Jr.
13th Fir.
Commerce Bank Bldg.
922 Walnut
Kansas City, MO 64106
COUNSELLORS TO
THE COMMITTEE
Anne L. Armstrong
Kingsville, TX
George W. Ball
New York, NY
Hardy C. Dillard
Charlottesville, VA
Henry A. Kissinger
Washington, DC
Edward H. Levi
Chicago, IL
E. V. Rostow
New Haven, CT
Dean Rusk
Athens, GA
LAW STUDENT
REPRESENTATIVE
Alan Finkel
Los Angeles, CA
EDUCATIONAL CONSULTANT
Frank R. Barnett
New York, NY
INTELLIGENCE
CONSULTANTS
Antonin Scalia
Chicago, IL
Raymond J. Waldrnann
Washington, DC
CONSULTANT TO
THE COMMITTEE
Bernard A. Ramundo
7908 Rocton Avenue
Chevy Chase, MD 20015
STAFF DIRECTOR
Norman It. Nelson
American Bar Association
1155 East 60th Street
Chicago, IL 60637
RW
ASSOC
1155 EAST 60TH ST., CHICAGO, ILLINOIS 60637 TELEPHONE [phone]
March 27, 1980
Mr. Frank Carlucci
Central Intelligence Agency
Washington, D.C. 20505
This is merely to confirm our telephone conversation
of last week. I hope that you or Stan Turner can be
our guest speaker for the dinner on June 26th at
The University of Chicago Law School.
The other options are for lunch on either June 27th
or 28th.
Best regards.
Sincgrely,
MIL/dm
F1
Morriss I. ~Leibman,
Chairman
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AMERICAN BAR ASSOCIATION
CONFERENCE ON INTELLIGENCE LEGISLATION
CHICAGO --- 26 JUNE 1980
I am pleased to be with you this evening -- here in
America's heartland. The debate on intelligence legislation
necessarily revolves around the seat of our highest politi-
cal institution in Washington. But the goal of our efforts
must be to effectively serve the need for security and
simultaneusly protect the fundamental legal values of our
citizenry nationwide. The intelligence agencies are instru-
ments of our foreign relations. In this sense we truly have
a national constituency, embracing all sectors of the populace.
Therefore, I find it very fitting that this conference take
place against the backdrop of the city that has come to
represent a crossroad of this country's strengths -- in-
dustrial, agricultural -- and intellectual.
But it would be well to remind yourselves periodically
over the next few days while you are at this conference that
we are here surrounded by the quintessential America. We
have come to an understanding of what this country means
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after 200 years. But the United States is not the world.
And what is discussed during these proceedings -- while
of great importance to this country -- will not change
the world that exists outside our borders. I am interested
in that point because the intelligence agencies serve
this country primarily outside its boundaries and take
as their focus the other societies with which we share
this globe..
Let me develop that point just a bit further with an
illustration. Not so long ago I was traveling in one of
the rapidly developing African countries. On this occasion
I was in the company of three very distinguished members
of the United States Congress. We were honored to be
received by the Chief Executive of that country. During
our discussions, a lady came into the room and was intro-
duced to us as the wife of the President. Shortly after
we had resumed. our discussions another lady entered the
room. She was introduced as the wife of the President.
Perhaps sensing a slight-awkwardness on the part of his
American guests, our host graciously took time out to
explain something about his country and his position. He
explained that it was not unusual -- in fact rather tra-
ditional -- for a man occupying a high and powerful station
in his society to have many wives. He went on to explain
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further that the reason he only had two was that he was a
Catholic.
We have a great country. But our values and practices
simply do not apply worldwide. The intelligence agencies
must operate worldwide --- in a milieu in which normal
standards do not apply.
The strangeness of the intelligence world becomes
apparent with just a little thought. Much of our nation's
intelligence collection activity goes forward in disregard
of foreign. law. There is a certain paradox here. We some-
times seem to have an obsessive interest in legalisms when
structuring the environment in which our intelligence
agencies must live as a part of our American government and
society. Many times our absorption in this endeavor seems so
intense that we become blind and block out the reality that
the intelligence agencies often operate in contravention of
foreign law.
There is a good deal of information that the United
States must have to function as a great power. Much of this
information would be denied to us by our adversaries if they
could. It is the job of the intelligence agencies to come
up with this information irrespective of the wishes -- or
the laws --- of foreign powers. We engage in espionage and
recruit foreign nationals to engage in acts their own govern-
ments would consider treasonous if discovered.
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I make no apologies here. I see no alternative to
the United States collecting intelligence or otherwise
acting clandestinely irrespective of the laws of other
countries. But the puzzle remains of how we sanction
this within our own carefully drawn framework of legal
provisions. The approach of the National Security Act of
1947 was to say in effect "Do the necessary." i don't
really see how we can become much more specific on this
point in current legislation. But it is important that all
of us involved in drafting such legislation keep in mind
that we are preparing a charter for activity inherently
antagonistic to the interests of other countries -- and
often violative of their laws.
There is another element of the strangeness of the
intelligence world that I will remark on here. It is
seldom understood. It is a traditional "good" of our
system that the functioning of government be open to all.
We are in fact an open society to a degree unique to the
world. However, in the intelligence business, openness is
destructive. Secrecy is imperative.
The openness in our society draws its strength from
many sources --- sources that are fundamental to our
way of life. Openness is a necessary concomitant to democracy.
Citizens must to some degree have an idea of what the govern-
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ment is doing before they can participate effectively in
their government through democratic processes.
. We are also impelled toward openness by the role and
special protection of the press under the First Amendment.
The press is unfettered in its pursuit --and in its judg-
ment -- of what to publish. I think we all agree that this
,is a fundamental strength of our system -- despite the fact
that in the intelligence arena the process sometimes takes
on the coloration of a game. If you can get it you can
publish it -- even though the points scored on the publi-
cation side may be far outweighed by the damage done to our
overall interests as a nation.
We must also recognize that part of the current empha-
sis on openness is due to public skepticism and distrust of
government in the post-Vietnam, post-Watergate era. The era
of investigations, we all know, included a long, critical
look at CIA-and the Intelligence Community in general. All
the errors and questionable judgments of 25 years were
brought together and publicized in a manner tending to make
the Agency look like a "rogue elephant." Though this de-
scription was later disclaimed, I am afraid the retraction did
little to counterbalance the effect of the initial headlines.
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But having acknowledged the tremendous forces behind
the thrust toward openness, I shall say again that secrecy
in the conduct of intelligence activities is absolutely
imperative. The effects of being compelled to disclose to
too wide an audience too many details of our intelligence
operations are seriously damaging. Experience has shown
that wide dissemination of sensitive information correlates
very highly with the appearance of mysterious leaks. I
can't emphasize too much the inevitably damaging results of
our inability to control leaks. We are creating the impres-
sion of ineffectiveness among our friends abroad. You can't
win respect while projecting an image of being unable to
protect legitimate secrets.
This tarnishing of our image has led inexorably to a
loss of cooperation by our friends abroad. To them the
logic seems inescapable. If we can't protect ourselves, we
are less likely to protect them. I can tell you from my own
experience that we have lost valuable sources of information
because we could not guarantee that certain sensitive infor-
mation would. be safeguarded within CIA and not given wider
dissemination. Anxiety levels tend to skyrocket when we
must acknowledge to potential sources that even very detailed
information tending to identify them as a source might wind
up in the legislative forum, subject to the strains of
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partisan views. When involved in a high-stakes game, no one
wants to deal with a partner not in control of his end of
the deal.
I said a moment ago that because of the world in which
the intelligence agencies must operate, the norms of our
society often do not apply. I now suggest that the stan-
dards of our society have not remained constant, but instead
have changed significantly over time.
We. have evidence for this in the propensity of some to
apply retroactive morality and cite a presumed legal base
for it.. The intelligence agencies have experienced the
phenomenon of people perceiving in the '70's what it then
seemed like a good idea for the law to have been in the
'50's and '60's. "The law" is often in the eyes of the
beholder. In too many instances comments have been glibly
made that CIA acted illegally when in fact the points of law
involved have been sharpened only in recent years --and then
after considerable debate.
For example there are those who see the law very
clearly in retrospect who are quick to proclaim that the
retention by CIA of information of a counterintelligence
nature on U.S. persons was "illegal," and violative of
constitutional rights. The conclusion is readily reached
despite the fact that CIA has counterintelligence responsi-
bilities and that the retention of the same information by
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other agencies does not present a problem. Actually,
sorting this one out -- the retention of information on
U.S. persons -- has proven to be a rather complicated matter
--- despite the simplicity of terms in which "the law" was
previously perceived by some. It has now been made clear that
CIA may act only in cooperation with the FBI in connection
with the collection of counterintelligence information with-
in the United States. Also, there is now a 17-page Attorney
General procedure governing the collection, storage and
disseminaton by CIA of information concerning the activities
of U.S. persons.
The point inherent in this is that times have
changed. Despite our problems with retroactive application,
the changes wrought in the last ten years cannot be
ignored. Nor would we want to. Believe me when I tell you
that the intelligence agencies have no interest in going
back to the past. On the contrary, we want to focus on
the future. We welcome legislation that will lay down
broad guidelines for our activities. This would be quite
helpful.
But as we proceed toward this goal some curious con-
cepts have emerged. Some seemed to hold the view that it
was important to reduce every detail, and the specifics
of every concern, to statutory form. As it was introduced
in February 1978, S.2525 was 273 pages long.
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It contained provisions establishing the organiza-
tion of the Intelligence Community under a Director of
National Intelligence, with separate titles covering
organizational and housekeeping matters for the Central
Intelligence Agency, the National Security Agency and the
intelligence- division of the FBI. It also contained a
profuse array of prohibitions, restrictions and reporting
requirements. There were separate requirements to report
specific decisions, approvals or operations, as well as a
general all-purpose provision to give the Congress total
access to information in the possession of the intelligence
agencies.
Let me-illustrate by recalling for you one particular
provision. There was a provision in the bill that specifically
prohibited the United States Government from covertly taking
action likely to lead to flood, pestilence, plagues or mass
destruction of property. At the time, the tongue-in-cheek
suggestion went around at the Agency that we should oppose
this provision on the basis of wanting to keep our options
open. But behind the amusement the sting was felt. The
bill had a readily perceptible punitive tone to it. it
was clearly an overreaction. It is not necessary to put
every conceivable detail in statute.
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Another curious concept that has arisen is that,
if you don't like the policy decisions that have been
made, kill the instrument that implemented the policy.
I have in mind here the Hughes Ryan Amendment dealing
with covert action -- that is, operations in foreign
countries for purposes other than solely to gain foreign
intelligence. Now I daresay that there are certain covert
action initiatives that we might all agree on. So it is not
covert action per se that is the problem. However, the
Hughes Ryan Amendment has made implementation of any covert
action quite difficult. It has required a proliferation of
information among too many committees and staffs in the
Congress to permit confidence in maintaining the security of
sensitive operations. I submit that placing a strangle hold
on all covert action is not a sensible approach to take when
the "evil" to be remedied is that the Congress has disagreed
with certain covert action initiatives taken by the executive
branch in the past.
Yet another curious concept that emerges when you
examine the thinking of recent years is that CIA needs to be
protected from Presidents. It is true that the most con-
troversial initiatives in the history of our intelligence
agencies tend to be those in which the President has taken a
direct hand and ordered action. Here is where the lessons of
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the past translated into realistic guidelines for the
future can be helpful both to the intelligence agencies and
the President. But the process can be carried to an ex-
treme. Sometimes the implication seems to be that the
intelligence agencies must act as a conscience or watchdog
of the President. Perhaps it is that we have become a pawn
in the escalating power struggle between the President and
the. Congress.
Despite the emergence of such curous conepts, however,
we have managed to reach agreement on many of the large
questions that once confronted us.
- The Central Intelligence Agency will
continue. The Intelligence Community
will be coordinated under the leader
ship of the Director of Central In-
telligence.
- There is also agreement that the United
States Government will maintain, and
use as necessary, a capability for
covert action. The covert action
capability is to be housed in CIA.
It appears that we will reduce the
number of committees to which covert
action information must be reported.
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- it is acknowledged all around that
CIA needs to protect the information
it receives, though differences remain
on how best to do this.
- There is certainly agreement that citizens
of the United States must receive a full
measure of protection of their constitutional
rights vis-a-vis any intelligence agency
activities which might impact those rights.
- There will be oversight. And it will be
effective. It is required that Intelligence
Community officials report any activities
of questionable legality or propriety to
the Intelligence Oversight Board. Through-
out the year the intelligence agencies work
quite closely with, the Senate Select Committee
on Intelligence and the House Permanent Select
Committee on Intelligence. Sometimes the most
traditional oversight mechanism is the best,
and I don't mind telling you that Intelligence
Community programs receive the closest possible
scrutiny during the budget cycle.
I am happy to report that the foregoing points of agreement
are now very much a part of Intelligence Community life. But
critical questions remain. These questions will demand our
close attention as the debate on intelligence matters unfolds.
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- Yet unresolved is whether some sort of
statutory right of access to information
is needed for congressional oversight.
Based on my experience dealing with the
Congress, there is no need for special
legislation of this nature. Some feel
that legislation is necessary and that
there can be no exemptions. I say that this
would kill us. If there is to be such
legislation, there must be exemptions for
particularly sensitive sources and methods.
At very least, the Agency, through its in-
telligence offices in the field, must be able to
extend to potential sources the guarantee that
the Agency will protect their identities.
- There are still details to be worked out
regarding approvals for collection of information
U.S. persons. We don't need very much U.S.
person information, but we must be able to
acquire what we do need. Actually I believe
the debate over the supposed tension between
civil liberties and intelligence collection
is very much overdone. A person has to be
engaging in activities giving rise to legitimate
foreign intelligence or foreign counter-
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intelligence interest before that person
is likely to come to the attention of CIA.
Let me remind you in this connection that
foreign intelligence is defined by the
Executive Order to include only information.
relating to the capabilities, intentions
and activities of foreign powers, organiza-
tions or persons. Counterintelligence is
defined to include only information gathered
and activities conducted to protect against
espionage and other clandestine intelligence
activities, sabotage, international terrorist
activities or assassinations conducted on
behalf of foreign powers, organizations or
persons.
With this focus, it tends to be the extraordinary U.S.
person who comes upon the CIA screen. We might, for
example, focus our attention on a key official in a foreign
government who happens to be a dual national holding U.S.
citizenship. As the world shrinks this becomes more
common. The questions in this area tend to be of the
threshold of approval. While we may not have perfection
yet, the Attorney General procedure in this area shows
the kind of balance that must be struck.
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Another significant issue in the yet un-
resolved category is the question of how
much in the way of exemption from open
government concepts shall be afforded the
intelligence agencies. In its current
form the Freedom of Information Act has a
serious adverse impact as applied to the
intelligence agencies. Thousands of man
hours and millions of dollars are wasted
in review of documents that are exempt from
the Act but must be made the subject of
detailed justifications in each case. In-
evitably, there are errors.
We need an amendment to the Act that would make clear
that its reach does not extend to raw intelligence data, or
to information likely to reveal intelligence sources. Such
an amendment would go far toward solving the most serious
problem fostered by the FOIA -- the perception by our friends
that we can't keep a secret.
is the question of what
form legislation should take aimed at the
protection of our intelligence officers. I
believe that some form of identities legisla-
tion is required. No responsible person can
defend the type of exposures made by Covert
Action Information Bulletin and similar
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publications aimed at undercutting our
intelligence effort by exposing employees
of the intelligence agencies world-wide.
The question is how best to deal with
such challenges without infringing on
First Amendment rights. We think it can
be done.
The foregoing are all issues that you will be debating
over the next few days. We will study your deliberations
with interest.
Let me spend a minute, however, to give you as non-
lawyer's appreciation of what is at stake. The '80's could
be the most difficult period in our country's recent history,
and a great deal of the burden must.fall on the intelligence
agencies.
The United States is finding itself in a new role in the
'80's. It is not interventionist. It is not isolationist.
Its vital national interests are increasingly entwined
with developments in all parts of the world. As we engage
in a high stakes balancing act, correct and timely intelligence
becomes more important than ever.
Our adversaries are not resting. As a percentage of
Gross National Product the Soviets have been adding to
their military base at a rate approximately double that of
the United States. Soviet commitments to the military
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sector have been increasing every year. As a result,
U.S./Soviet forces are more in balance than ever before.
The ramifications of this for intelligence are profound.
There is less of a margin for error. In this environment
we must succeed in acquiring very good intelligence re-
garding both capabilities and intentions.
It is not reasonable to expect that even the Soviets
would embrace the horrors of nuclear war as a deliberate
choice. However, Soviet leaders may see themselves able
to take greater advantage of opportunities that are pre-
sented to them where the threat to U.S. interests is
apparently marginal. They may see themselves as free to
undertake more Afghanistans and Ethiopias. In their view,
when U.S. vital interests are not directly challenged, their
strategic power effectively neutralizes that of the U.S.
and leaves them freer to exploit their overwhelming strength
in conventional forces. The 80's are likely to hold a suc-
cession of challenges.
It is no longer possible to speak of the Third World
without rolling in the cost of energy and the overall
scarcity of resources into one volatile mass of problems
necessarily involving Europe and the United States. One
must recognize that upper tier and lower tier Third World
countries will have interests that continue to diverge.
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The European economy as a whole is likely to grow stronger
relative to that of the United States, with the Europeans
moving out on a more independent course. No part of the
world will be immune from the turmoil that is the predictable
result of elevated expectations that are impossible to
fulfill because of scarcity of resources.
During the period to come, intelligence could just
make that crucial margin of difference. There are those
who think that the paramount threat comes from within --
from excesses of our own institutions. As one who has
lived in a number of states where there has been a drift
toward authoritarian forms, I appreciate the danger.
But I have also seen Soviet expansionism at work. And
the danger is no less real.
What we are talking about are not really tradeoffs.
We can certainly accommodate concerns on both sides of
intelligence issues if we can control our emotions and
channel our intellects. Lawyers are the dispassionate
element in American society. We need your help.
The wools of the profession here assembled are those
of law. Thanks to the richness of the American legal
system there are a variety of measures that can be seized
upon to work our will. And thanks to the constitutional
framework of that system the levers and gears of our self
governance are never very far away.
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While the tools are there in profusion, it must
take the wisdom of the law to ensure that.the measures
applied stimulate good health --- without permitting
abnormal growths or flooding the system with toxic
"medicines". Lawyers know well that the cry "There
ought to be a law!" takes us only to the starting point
of :inquiry.
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