ADDRESS BY STANSFIELD TURNER, DCI, AMERICAN COLLEGE OF TRIAL LAWYERS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP99-00498R000200110005-6
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 9
• Document Creation Date: December 20, 2016
• Document Release Date: March 27, 2007
• Sequence Number: 5
• Publication Date: March 12, 1979
• Content Type: REPORT

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Address by Admiral Stansfield Turner
Director of Central Intelligence
American College of Trial Lawyers
Boca Raton, Florida
Monday, 12 March 1979
STATE OF INTELLIGENCE
Three months before the attack on Pearl Harbor I went to Amherst, a
small liberal arts college in New England, with the vague intent in mind
that the following summer I would become an office boy in some large
Chicago law firm and decide if I really did want to go on to a career in
the legal profession. The war and a career in the Navy intervened and I
thought I was never going to get my law education until President Carter
appointed-me Director of Central Intelligence.
That may sound strange to you but almost every day I get a tutorial
on the law.from my General Counsel, who tells me what I can and cannot
do. In fact, there is a great deal stirring between the law and intelli-
gence today. The greater degree of control by law than ever before is a
part of the many changes that are taking place in our nation's intelli-
gence activities. I think it is the one feature perhaps which would
interest you most, but first I would like to sculpt for you the general
nature of the fundamental and-far-reaching changes that are taking place
in the intelligence process as a whole. They derive from three basic
factors. First, the changing perception the United States has of its own
role in international affairs. Second, the great technical sophistication
which has come to characterize the process of collecting intelligence
information. And third, the much greater interest and concern about
intelligence activities of the public in general.
.Let me start with the changing perception of our role in the world.
I believe that the United States is in a state of transition in its
public attitudes towards foreign affairs from an activist, interventionist
outlook to one where the restraints or limits on our ability to influence
events in other countries is more widely recognized. This is not to say
that we are retrenching into an isolationism. In fact, as a nation, I
believe we are gradually emerging from our post-Vietnam, total aversion
to any semblance of intervention on the international scene. Clearly, we
must continue to play a major role on the world scene. Yet, the circum-
stances today are such that we must gauge much more carefully than
ever before when intervention may be desirable or feasible.
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Look, for instance, at the difficulty that we have today simply
deciding whom we are for and whom we are against. Traditionally we
often favored those people whom the Russians were against. But look
at some of the choices we had in 1978. About this time last year, there
was a war in Ethiopia. The Russians were against Somalia. Somalia was
headed by a Marxist dictator who was the aggressor; a difficult side for
us to he for. At the end of 1978 there was a war in Cambodia. The
Russians were for the Vietnamese who were attacking Cambodia. Cambodia
was headed by Pol Pot, perhaps the most repressive regime on the face of
the globe since Hitler; again, a difficult choice for us.
In short, Communism today is not monolithic and it is hard for us
to tell the black hats from the white hats. In addition, it is not
nearly so clear today that the consequences of a nation succumbing to
Communist influence are as irreversible as we often thought in the
past. We have seen Indonesia, Sudan, Egypt, and even Somalia subjected
to considerable Soviet influence and then return to independence. So
today there is a legitimate question in our body politic as to whether
it is always necessary to come to the rescue of countries being subjected
to Communist pressure.
Even when we do decide that some struggling nation deserves our
support, there-are problems in providing that support today which did
not exist just a few years ago. One of these stems from the revolution
in international communications. Today any international action one may
take is instantly communicated around the globe; instantly subjected to
analysis; and instantly judged. And that public, international judgment--
often approbation or criticism--influences events and inhibits major
countries like ours or the Soviet Union, even though these countries
voicing their approbation or criticism are often second or third level.
powers.
If we attempt to sway other countries diplomatically, we are not
nearly as effective as we could be 20 or 25 years ago when most free
nations of the world followed our lead in such fora as the United Nations.
Today, one country has one vote and the major powers are generally on the
minority side of those votes.
Today if we believed that it was in our national interest to inter-
vene militarily somewhere, the memory of Vietnam reminds us that when
the pendulum of offense and defense in military weaponry is tending
towards the defense, as it now is, even a minor military power can give a
major one a very difficult time.
What all this adds up to is that the leverage of influence in
international affairs must be exercised much more subtly. We must be
more concerned with long term influences rather than just putting a
finger in the dike. We must be able to anticipate rather than react
to events. We must be able to interpret the underlying forces which can
be influenced and driven over time. For us in the intelligence world
this means that we must vastly expand the scope of our requirements.
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Thirty years ago our primary concern was to keep track of Soviet
military activities. Today our geographical interests are much more
widespread than just the Soviet Union. The subject matter in which
we must be intimately familiar encompasses not just military technology,
but politics, economics, food, population, narcotics, terrorism, the
health and psychiatry of foreign leaders, energy reserves, and many
other fields. There is hardly an academic discipline, there is hardly an
area of the world that we must not be able to provide good information
about to national leaders. This is an exciting, a demanding time for
intelligence and one of fundamental change in the intelligence process
of our country.
The second factor that is driving change is the technological
revolution affecting how we collect intelligence. Basically there are
three ways of acquiring foreign intelligence: by photographs from
satellites or airplanes; by intercepting signals such as those that
are passing through the air right here and now--signals from military
equipment, signals from communications systems; and by human collection--
the traditional spy.
The first two, photographic and signals intelligence, are called
technical intelligence as opposed to human intelligence. The capabilities
here, thanks to the great sophistication of American industry, are
burgeoning. 'There is so much information flowing in that our real
problem is-how to process, handle, and do something with it. Interestingly
though, rather than denegrating the value or need of the traditional spy,
it has increased his importance. Broadly speaking, technical intelligence
collection tells you what happened in some other country in the past.
When I give that information to a policy maker the first thing that I am
asked is, why did that happen and what is going to happen next? Uncovering
people's intentions and plans is the unique forte of the human intelligence
agent. The challenge that we face is being able to coordinate photographic,
signals, and human means of collection, orchestrating them so that the
three complement each other and so that we collect all needed information
in the least expensive way with the least risks. For example, what the
photograph can't tell you, you look for with signals or the human. This
may sound very logical and very simple, but because technical capabilities
are burgeoning and many are relatively new and in some ways overwhelming,
we can no longer do business in the traditional way.
Because intelligence is a large bureaucracy spread over a number of
different government agencies and departments, it has taken some fundamental
restructuring to accommodate these changes. I have two jobs. I am head
of the CIA but. I am also the Director of Central Intelligence. In the
latter role I coordinate all of the national intelligence activities of
the country. Just over a year ago the President, in a new Executive
Order, strengthened my authority over the budgets and collection tasking
of all these intelligence activities. That change, that process, is
still evolving today. It is coming along nicely but it is not yet
complete.
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The third factor driving change is the increased public attention
to intelligence ever since the investigations of 1974 through 1976.
Those investigations brought to American intelligence activities more
public attention than has ever, in the history of mankind, been brought
to bear on a major intelligence organization. That process, I am afraid,
destroyed some of the confidence and support the American public has
traditionally had for its intelligence activities. And, while I am
beginning to sense a gradual return of that support and confidence, I
also recognize a lingering suspicion as to whether intelligence organiza-
tions may be invading the privacy of the American citizen. In any event,
enough of the allegations about previous abuses of intelligence were
true, even though most were exaggerated, that corrective action has been
necessary. It has been taken and has been taken thoroughly.
We now have a series of oversight procedures which serve as a very
important check on intelligence. It begins with the President himself,
who takes a direct and personal interest in what we are doing. It
goes from there to an Intelligence Oversight Board which looks into the
legality and propriety of intelligence activities, and reports directly
to the President. And it goes from there to the two committees of the
Congress empowered exclusively to conduct intelligence oversight. And
finally, of course, the press is much more interested, much more perse-
vering in learning what we are doing today than ever before.
The impact of all this added visibility has been substantial and
has had a traumatic effect within the Intelligence Community. Some of
this publicity is wanted. We need to regenerate that sense of confidence
that we are not invading the rights of the American citizen. One way of
doing that is through our being more open. We are publishing more and,
incidentally, when you leave today, we will have on the tables in the
foyer some examples of the materials that we have published in the
last year or so which we think are of interest to the American public and
which are unclassified. We are answering questions, we are speaking more
in public as I am with you today, and we are participating more in
symposia and academic conferences.
But some of the publicity is unwanted. It is unhelpful and it
involves improper disclosures of intelligence information. This is
demoralizing for a service that has traditionally, and of necessity,
operated in secret. If you were a CIA case officer overseas, attempting
to persuade some foreign person to spy on our behalf at the risk of his
or her life, then you must have confidence that you can assure that
individual his identity will be protected. Today our people do not have
the same sense of confidence that they did a decade ago. And so openness
is a traumatic change for them which can have a negative impact.
Not the least of the traumas we are experiencing derives from the
increasing legal context of everything we do. I am sure you appreciate
that there is a natural tension between the effective and impartial
administration of criminal justice and the successful prosecution of
intelligence. I hardly need remind you that criminal justice requires
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that all relevant information be made available to both the prosecution
and the defense. And yet, you can readily appreciate that national
intelligence interests often require that evidence derived from intelli-
gence sources be protected against disclosure. The resulting dilemmas
can be very painful and are not infrequent.
Are these real dilemmas? Yes. I think that when Attorney General
Bell, last week, had to drop the prosecution of a case against two ITT
officials in order not to disclose intelligence secrets, it is a genuine
dilemma. There would be no dilemma, no problem, only if on the scale of
national values every law enforcement interest were always superior to
any intelligence interest. Intelligence information would always be
brought forward as needed. Or if, on the other hand, law enforcement
interests were always subordinated to intelligence interests, any
criminal proceeding would be terminated should any intelligence information
be threatened with disclosure.
Clearly neither view is correct. The values are variable and cannot
be readily ordered in advance. Each case must be separately judged on
its own facts, and intelligence interests must be placed in perspective
with other interests such as justice and precedence, when deciding
whether and on what basis to proceed with prosecution.
It is the Attorney General who has the discretion to decide whether
a prosecution is warranted and on what basis to go forward. That is
not to say, however, that I have no role in influencing that decision
whenever intelligence interests are concerned. On the contrary, I have
a necessary task.
In the first place, I am responsible for ensuring that no relevant
information is withheld from the Attorney General. Access to relevant
information, regardless of its classification, should not be a point of
dispute. In my view, the Attorney General has a clear right and a need
to review all such information so that his decisions may be taken with
the fullest factual perspective.
Beyond this, I feel that I am responsible for giving the Attorney
General an estimate of the potential impact of the public disclosure of
intelligence information that may be relevant to a criminal prosecution.
Again, I believe that this kind of an estimate is something the Attorney
General must have to make informed decisions and to properly weigh the
consequences of those decisions. If it should happen that I conclude
that the Attorney General has come to the incorrect balance, I must then
appeal to the President to decide whether the best interests of the
United States favor prosecution or not. In brief, I cannot frustrate
a prosecution simply by withholding secret information from release.
That choice lies with the Attorney General and I must appeal that choice,
if I do not agree with it. In the two years I have been privileged
to work on these thorny issues with Attorney General Griffin Bell, we
have never had, because of his great cooperativeness, anything but a
harmonious resolution of these issues. But they are not easy for either
one of us.
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There are fundamental reasons why this issue presents such
difficulty. One is simply the fact that a criminal trial in this country
is a public event. I have no quarrel with the constitutional guarantees
that make it so. At the same time I cannot ignore the fact that eviden-
tiary uses of intelligence information involves a high probability that
it will enter the public domain. There are few ways to avoid that
outcome or to limit the exposure of the information to trial participants.
Other constitutional provisions secure to an accused broad rights of
cross-examination. Rules of procedure confer on the defense wide-ranging
pre-trial discovery. These features make the judicial process almost as
uncertain as it is open. For example, what lines of defense will be
followed and what scope of discovery and cross-examination will be
allowed do not lend themselves to precise advance measurement. They are
unpredictable, and that means that the decision to prosecute is more
difficult for those who must gauge, before the course is set, where it
all might lead. Again, I'm not complaining about any of this or suggesting
any radical reforms that would strip away rights of the accused. I am
only trying to describe how it looks from my position.
What I have been saying takes on greater force when you consider
the necessities of proof under some of the basic criminal statutes which
are of special concern to intelligence agencies. Let us suppose, for
example, that -a government employee is arrested while attempting-to - -
deliver a highly classified document to a foreign agent, and the delivery
is frustrated by the arrest. A crime has been committed under the
espionage laws. Yet prosecution would. exact an-extraordinary price. The
government would be required to show that the information in the document
was of enough significance to materially injure the national security if
it had fallen into the hands of the foreign government. That burden of
proof would very likely require that the document itself be offered as
evidence and that a government-witness confirm its accuracy. The net
result would be that the trial proceedings would have succeeded in doing
exactly what the defendant was being tried for attempting but failing to
do, that is, transmit and disclose the information. Moreover, the
accuracy of that information would have been verified in the bargain. I
am sure you will agree that a spectacle of this sort would not be pleasant
to contemplate for those who had to struggle with a decision to prosecute.
We have avoided this dilemma once recently, but it was indeed a very
risky and uncertain matter.
Another well publicized problem in trial proceedings is the last
minute discovery blitzes that have been favored by defense counsels in
some espionage cases, the recent case of the U.S. vs Kampiles for example.
It is unfortunately true that whenever the CIA or just intelligence is
involved, it is inviting for a defense attorney to hope to collapse the
prosecution by pressing for more disclosure than we are likely to be
willing to provide. Hence, the shotgun approach which is evolving
against which there are no easy countertactics.
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Judges, though, are by no means insensitive to these dilemmas.
They will from time to time regulate pretrial discovery in espionage
prosecutions by protective orders affording the defendants and defense
counsel access to sensitive materials but restricting their freedom to
further disseminate such materials. Unfortunately, the terms of these
orders have varied widely and seem to have nothing to do with the dif-
ferences in the cases themselves.
For example, some of the orders have conditioned access to
sensitive materials by defense witnesses on both security clearance
grounds and court approval, whereas others, have only been on the basis
of court approvals. In some cases, U.S. vs Moore for instance, the
protective order has authorized defense counsel to maintain custody of
materials in a safe furnished by the government, whereas in others, like
the Kampiles case, the material remained totally in the custody of the
government at all times. In a recent case, arrangements were made where
the materials were kept in a safe of ours which in turn was kept in the
judge's safe.
Let me not, however, leave any impression that all of the. interests
of intelligence are on the side of not disclosing or not prosecuting. We
in the Intelligence Community have legitimate interests on both sides-of
this issue. On the other hand, our concern for protecting national
secrets is genuine. Beyond concern for individuals such as I mentioned
before, individuals who are willing to risk their lives in our nation's
behalf, there is a wide-range of clear damage to our national interest
when information which ought to stay secret is disclosed. Sometimes our
relations or negotiations with other sovereign nations are undermined or
our continued access to information jeopardized. Foreign intelligence
services simply will not share information with an organization that
appears to be an information seive; and expensive technical systems I
have described can be frustrated and countered if their details are
disclosed.
Thus, even though we in intelligence are indeed generally inclined,
perhaps overly inclined, to hold back from prosecution to protect classi-
fied information, there are also many cases where we intensely want to
see the prosecution proceed. Those that concern us most involve espionage.
Beyond that, are the irresponsible, I would even say traitorous individuals
who deliberately disclose classified information. The seriousness of
these losses causes the Intelligence Community to strongly support the
prosecution of the individuals who do the disclosing. My blood boils at
the obvious callousness and selfishness of such persons. They not only
deserve the punishment that may result from prosecution, but we need to
prosecute these offenders to deter others. Thus, we have incentive to
lean over backwards in releasing information which is essential to such
judicial proceedings. In the two years I have been Director of Central
Intelligence, I have held my breath while releasing data to permit the
prosecution of nearly a half a dozen espionage cases. Nevertheless, the
incentive to continue releasing information for the purposes of such
prosecution remains strong.
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Another set of dilemmas we face centers on the many rules and
regulations which have recently been applied to intelligence agencies,
especially those to protect the privacy of American citizens. Because
they are new and often complex and because they must be interpreted in
the light of our sometimes unique activities, they have impacted heavily
on the speed and flexibility with which we have traditionally been able
to operate. Very often, questions of Constitutional Law have been involved
which have required both the Attorney General's legal staff and my legal
staff to take the time to think through a legal issue in the midst of an
operational crisis. In all such instances, the Attorney General and his
staff have gone out of their way to provide timely opinions and advice.
But, in practice, and as a result, our options have often been limited.
An example in the electronic surveillance area will illustrate what I am
talking about.
Over a year ago, a small country was under seige. At one point the
only good source of information from within the country was the ham radio
transmissions of an American missionary. In light of the President's
Executive Order prohibiting electronic surveillance of a United States
person, could we legally intercept that transmission? If we could, at
what point would it become illegal electronic surveillance? The decision
was made that as long as the missionary was using CB or-ham radio bands--
we could listen. But that if he tried to-disguise the broadcast--which is
not unreasonable if you are broadcasting clandestinely and in fear of
being caught--that would evidence a desire for privacy and we would have
to stop monitoring.
While we recognize and applaud these efforts to ensure the constitu-.
tional and privacy rights of Americans, and in most instances we can
adapt to them, the issues are complex and they must be assimilated by my
people in the field who are not attorneys. The initiative of the intel-
ligence operator can be dulled by this need to insure that all applicable
legal standards are met, and the uncertainty as to whether they are being
met can lead to overcaution. In fact, today, our operators are almost
forced to avoid operations which could involve US persons. This in turn
could reduce our flexibility to respond in crisis situations when the
lives. and property of American nationals may be involved.
This year it is my hope that legislation defining charters for the
Intelligence Community will be passed by the Congress. This legislation
would establish for the first time the authority for specific intelligence
activities, as well as the boundaries within which we must operate.
Written with care and sensitivity to problems like those I have just
discussed, it may help to resolve some of these difficulties. Overreaction,
either by tying the Intelligence Community's hands or by giving it
unrestricted freedom would be a mistake. On the one hand inviting a
repetition of past abuses, on the other emasculating necessary intelligence
capabilities.
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After all these comments, particularly about our legal problems,
let me assure you that in my view the intelligence arm of our government
today is strong and capable. It is undergoing substantial change which
is never an easy or a placid process in a large bureaucracy. But, out of
the present metamorphasis is emerging an intelligence community in which
the legal rights of our citizens and the legal constraints and controls
on intelligence operations are balanced with a continuing need to maintain
an effective means of garnering information necessary for the conduct of
foreign policy. This is not an easy transition. We are not there yet.
But we are moving rapidly and surely down the right path. When we reach
our goal we will have constructed a new model of intelligence, a uniquely
American model, reflecting the ideals of our country. As we proceed, we
need your support and understanding. I am therefore most grateful that
you have asked me to be here today and have listened so attentively.
Thank you very much.