PRESIDENT FORD'S INTELLIGENCE PROPOSALS: A CHARTER FOR ABUSE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP88-01314R000100660021-0
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 12
• Document Creation Date: December 16, 2016
• Document Release Date: September 21, 2004
• Sequence Number: 21
• Publication Date: March 1, 1976
• Content Type: IR

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Volume I No. 2 March, 1976
PRESIDENT FORD'S INTELLIGENCE PROPOSALS:
A CHARTER FOR ABUSE
"I think a President ought to be accountable. A nd what we have sought to do in this case is to
make the process and the decision-making fall on the shoulders of the President and he will be
held accountable by the American people."
President Gerald Ford
February 17, 1976
"One of the problems, of course, is that all of these proposals are basically incorporated in
Executive Orders which are not law and can be changed within minutes. I ant jar more concerned
about what appears to be a strategy to resist true accountability to the Congress."
Senator Walter Mondale (D-Minn)
CBS News, February 18, 1976
On February 18, 1976, President Gerald R. Ford unveiled
his program to reform the foreign intelligence agencies.
Billed as the "first major reorganization of the intelligence
community since 1947," the President's proposals have
three separate elements: an Executive Order which outlines
charters and restrictions on the intelligence agencies;
legislative proposals on secrecy and oversight; and
procedures to make the agencies accountable to the Presi-
dent.
The President's Executive Order goes into effect im-
mediately, and his legislative proposals will be the center of
congressional and public debate in the coming months. This
Intelligence Report provides a detailed review of the
President's program and its implications.
It should be remembered that the President's proposals
were occasioned by revelations of massive illegal domestic
activities by each of the major intelligence agencies - the
Central Intelligence Agency (CIA), the Federal Bureau of
Investigation (FBI), the National Security Agency (NSA)
and the military intelligence agencies. Each of these spon-
sored extra-legal surveillance programs targeted on
Americans. Each engaged in activities - break-ins,
burglaries, mail opening, wiretaps - which violated
criminal statutes and the constitutional rights of American
citizens. These abuses have been revealed in the press and
confirmed by Presidential and Congressional investigations.
The President's program represents his response to the
revelations. Approved For Release 2004/10/12
EXECUTIVE ORDER:
RESTRICTION OR LICENSE?
The centerpiece of the President's program is a 32-page
Executive Order which restructures the management of the
intelligence agencies and places restrictions upon what they
can do. Both the form and substance of the order are of
significance.
The Use of Higher Orders
Instead of proposing legislated charters and restrictions,
the President chose to issue an Executive Order,
emphasizing what he called "his constitutional respon-
sibilities" to manage the intelligence agencies. An executive
order differs from legislation in several ways. It is not
debated publicly in open hearings, but drafted quietly within
the executive branch. A formal expression of "superior
orders," it provides no criminal penalties for its violation.
'Moreover, an executive order can be modified with the
-stroke of any president's pen. If desirable, it can be altered
by secret directives about which neither the public nor the
Congress need be informed. The President's Order itself con-
tains only a portion of the new instructions, the remainder
particularly the guidelines for NSA - have been issued in
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INTELLIGENCE REPORT
"This is not a government of executive orders ...
this is a government of laws and these basic laws
should he written by the Congress to set certain limits
on the operations of these very powerful and secret
agencies.... "
Senator Frank Church (D-Idaho)
NBC News, February 18, 1976
The President's Order illustrates the fragility of limits
issued without legislation. It apparently repeals - without
acknowledging it - one of the few existing restrictions on the
CIA. In 1967, when it was revealed that the Agency had had
secret dealings with the National Student Association, foun-
dations and universities, President Johnson issued an
Executive Order prohibiting the Agency from providing
"covert financial support" to any educational or voluntary
organization. The new order permits such secret dealings
with the single proviso that, in the case of universities,
college officials must be informed about the arrangements.
The relationship of the executive order to ordinary law is
also unclear. The President's Order contains a remarkable
section which states in so many words that wiretaps,
burglaries ("unconsented physical searches"), examination
of tax returns, and opening of mail "in the United States
postal channels" shall be carried out only according to
existing regulations and laws. The implication is that other
techniques are not limited to "lawful" methods or
applicable regulations. Mail not in U.S. postal channels, for
example, apparently can be opened in violation of law.
The broader suggestion is that statutes and regulations do
not apply to intelligence officials unless reaffirmed by the
President in an executive order. This presumption is present
elsewhere in the Executive Order. For example, the law es-
tablishing the CIA prohibits it from "domestic law enforce-
ment or internal security functions." The President's Order
authorizes the CIA to engage in a broad range of domestic
activities targeting foreigners and Americans alike, ap-
parently superceding the congressional intent by ratifying
the Agency's previously bureaucratic practice. In the past,
intelligence officials have by their own admission operated
"do the job" and protect our national security. In return
they asked for and received the criminal penalties for
"leaks" which they had long sought.
The influence of intelligence officials in the drafting
process was particularly significant since, according to
President Ford, the order is intended to "balance" the in-
terests of the intelligence agencies against the "privacy and
civil liberties" of American citizens. The latter might have
fared better had they been represented in the process. In his
nationally televised press conference. the President referred
to the order as providing "stringent protections of the rights
of American citizens." Only the next day. when the order
was released and the Fine print could be deciphered did it
become clear that far from protecting constitutional rights.
the order actually authorizes most of the abuses of the past.
The Restrictions
The President's Executive Order defines a series of
"restrictions," broad prohibitions followed by "excep-
tions." Each agency apparently sought and for the most
part received the exceptions it believed necessary to protect
its on-going operations. The largest is accorded to the
Federal Bureau of Investigation which is simply exempted
from the section altogether. Thus, the new restrictions on
surveillance of Americans at home do not apply to the one
agency generally thought to be the only one free to operate
in the United States. The President's order is directed only
at the domestic activities of the fioreign intelligence agencies.
1947 CONGRESSIONAL FEARS
"I am not interested in setting up here in the United
States any particular central police agency under an
President, and I do not care what his name may he,
and just allow him to have a gestapo of his own if he
wants to have it."
- Rep. Clarence Brown (R-Calif.)
Hearings of the House Committee
on Expenditures in Executive
Departments, April I -July 1, 1947
p. 127
on the assumption that they were above the law. (See section The Order prohibits the foreign intelligence agencies from
on Accountability to Law, page 7) The impression left by "collection of information, however acquired, concerning
the President's Order may not simply be a matter of poor the domestic activities of United States persons except ..."
draftsmanship, but one of intent. (emphasis added). The exceptions authorize collection of in-
Recourse to an executive order has policy implications formation on the following categories of Americans:
also. Since it is not publicly debated, only a handful of
executive officials take part in the drafting. In this instance, ? persons "reasonably believed to be acting on
the order was drawn up by representatives of the very agen- behalf of a foreign power ..."
cies it claims to restrict - senior officials of the foreign in- ? anyone, if the information comes from foreign in-
telligence community. These officials were prepared to telligence gathered abroad, electronic sur-
accept limitations proposed by the White House subject veillance abroad, or foreign intelligence sources
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Together these clauses would authorize many of the ac-
tivities undertaken by the CIA in Operation CHAOS, which
claimed to be reporting on "foreign contacts with American
dissidents," yet ended up infiltrating agents into "dissident
groups" and compiling some 3,000 files with over 300,000
names of individuals and groups. Any citizen whose
domestic activities are picked up in the foreign intelligence
collection process is fair game for the CIA or military in-
telligence agencies.
? persons who "pose a clear threat to foreign in-
telligence agency facilities or personnel."
The same justification was invoked by the CIA's Office of
Security when it infiltrated ten separate domestic groups in
Washington, D.C., including the Women Strike for Peace
and the Washington Peace Center. The military intelligence
agencies used a similar rationale to infiltrate domestic anti-
war groups active near military bases or ports.
? "present or former employees, present or former
contractors or their present or former employees,
or applicants for any such employment" ...and
"the identity of persons in contact with the fore-
going ..."
The breadth of this exception is best revealed by the
Rockefeller Commission which found that the CIA's Office
of Security alone maintained over 900,000 security files,
cross-indexing the names of over 900,000 Americans, in-
cluding 75 sitting members of Congress. Some were main-
tained on persons totally unaware they had any relationship
with the Agency. The President's Order reaffirms the CIA's
right to contract secretly for supplies and material, and thus
to surveil employees who are not aware of the identity of
their true employer.
o persons who are reasonably believed to be "poten-
tial sources or contacts."
This establishes the right of the CIA and other agencies to
run a security check on persons who may have no interest in
or relationship to the Agency - as a "potential" source or
contact. The Rockefeller Commission reported that the files
produced by such investigations were maintained within the
CIA - even if the persons were never contacted about
employment. President Nixon used a similar authority to
run it security check on CBS reporter Daniel Schorr in an
apparent attempt to intimidate him.
Limits on Techniques
The "restrictions" section also limits
techniques of the agencies. As noted above, many of the
restrictions - on mail opening, tax return intrusion, and
break-ins - simply prohibit what is already unlawful. Other
techniques included are:
issued by William Colby which provided that "no sur-
veillance .... will be conducted against employees
or ex-employees of the Agency outside Agency
property."
? authorization for foreign intelligence agencies - except
the CIA, which is prohibited - to engage in electronic
surveillance within the United States with the ap-
proval of the Attorney General. The directive ap-
parently revokes a 1967 Presidential directive limiting
domestic electronic surveillance to the FBI.
? authorization for domestic COINTELPRO-type
operations against organizations in the United States
whose members are "primarily" foreigners associated
with a foreign government. COINTELPRO was the
FBI's massive program to infiltrate and disrupt
domestic organizations. The President's Order
authorizes the foreign intelligence agencies to in-
filtrate for the purpose of "influencing" groups - Arab
student groups for example - fitting the above
category.
NSA: Reading the Fine Print
Perhaps the best example of the effect of the President's
Order is provided by the National Security Agency. NSA
has the task of snaking and breaking codes of all kinds and
intercepting all messages in the air - "signals intelligence."
Like other intelligence agencies, NSA has had its own
domestic program. With the cooperation of the cable com-
panies it has been scanning all of the cable traffic leaving the
United States since the end of World War II. Of late, its
emphasis has apparently been on "economic intelligence"
NSA has been reading cables sent abroad by American
business firms to learn what it could about economic con-
ditions and transactions of foreign countries with American
corporations.
The President's Executive Order authorizes such in-
terceptions with few realizing what is going on. The
paragraph appears in the section labelled "Restrictions on
Collection" which begins as follows: "Foreign intelligence
agencies shall not engage in any of the following activities."
Item (7) in the list reads: "Collection of information,
however acquired, concerning the domestic activities of
United States persons except" and then in the first excep-
tion comes the authority sought by NSA: "information con-
cerning corporations or other commercial organizations
which constitutes foreign intelligence or counter-
intelligence." The list of definitions reveals that foreign in-
telligence means "information concerning the capabilities,
intentions and activities of any foreign power, or of any non-
United States person, whether within or outside the United
on "physical surveillance" (tailing, States, or concerning areas outside the United States." Put
overhearing), with a broad exception for present and together and translated into English, one learns that NSA is
former employees, contractors and those in contact authorized to monitor the overseas cable traffic of
similar to that detailed above. This broad grant of Americans for the purpose of learning about their dealings
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 PAGE 4 Approved For Release 2004/10/12: CIA-RDP88-01314R0001006 O2jl 3ENCE REPORT
foreign countries, and the information that they may have
obtained concerning foreign countries.
The President's Order states that nothing in the restric-
tions section shall "authorize anything previously un-
authorized." But the Order sanctions on-going programs
which were considered extra-legal when first revealed, and
which have continued pending review. The President's
Order may solve the problem of domestic abuses by the
foreign intelligence agencies in the past by making them
legal in the future.
THE PRESIDENT'S ACCOUNTABILITY PROPOSALS:
BLANK CHECKS AND IMBALANCES
To protect U.S. citizens against the ambitious and the
venal, the American political order is designed to insure that
Executive officials are accountable - to the Congress, the
public, and the law. The clandestine intelligence agencies
pose a severe challenge to this precept, for their operating
principle is one of secrecy from outside inquiry.
The classification stamp has been used with equal facility
to conceal unconstitutional and illegal activities as well as
bona fide national security secrets. The temptation to hide
errors or mistakes and to "cut corners" under a cloak of
secrecy is common to all administrations and bureaucracies.
The widespread domestic abuses of the foreign intelligence
agencies illustrate the dangers posed by unaccountable
Executive agencies which operate in secret.
In the past, four different mechanisms served - with
greater or lesser success - to provide some check on the
secret license of the intelligence community: publicity and
exposure in the press; oversight and appropriations by the
Congress; personal accountability to the law; and internal
controls within the Executive itself. The President an-
nounced that his proposals were designed to establish "clear
lines of accountability." The question is, accountable to
whore? The President's program is clearly designed to
reduce the scope of any horizontal accountability - to the
public, the Congress, or the law - while increasing Executive
authority, implying that Executive "self-discipline" alone
will suffice to protect us from future abuses.
PUBLIC ACCOUNTABILITY:
SECRECY AND THE PRESS
A major check on the abuses of the intelligence agencies
in recent years has been public exposure in the press. Press
reporting of the My Lai massacre, CIA's funding of the
National Student Association, the FBI's COINTELPRO,
and the CIA's Operation CHAOS - all served to expose il-
legal activities previously hidden beneath the secrecy stamp.
These stories have often come from information provided
to reporters by courageous middle-level bureaucrats who
risked their careers in order to "blow the whistle" on abuses
which might otherwise have continued unchecked. In recent
years, many of the revelations reflect the end of the Cold
War consensus about American foreign policy. The CIA's
secrecy system was self-enforcing for over twenty years.
Only when the Agency's activities abroad came under
widespread public criticism did some of its officials - un-
dergoing a personal reappraisal matching that of the public
- begin to reveal itsq tfWveF1gGO rR6l~AWUy2(M4/1b712
Congress, it is precisely at such moments that information
must be available so that a serious review can proceed. As
Anthony Lewis has pointed out, the marketplace of ideas is
fairly well protected. It is access to facts that is severely
restricted. (Issues Magazine, Fall 1975).
High government officials do not, as a rule, enjoy such
revelations, which they term "leaks". Too often, they are
responsible for the illegal or unpopular programs thereby
revealed. Secretary of State Kissinger, in fact, scornfully
refers to those who reveal information as "soreheads."
(Washington Post, 2/6/76). As the House Select Com-
mittee on Intelligence reported, the secrecy system is also
used by senior officials - Henry Kissinger is the master of
the art - for "manipulation of the news" through selective
declassification. Lower-level leaks - such as those which
revealed the true extent of American involvement in Angola
- can undermine the Executive's attempts to distort reality
in order to prevail in the domestic debate.
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President Ford and Secretary Kissinger have repeatedly
decried the "dangerous exposure" of intelligence secrets.
Yet neither have pointed to a single leak which has damaged
the national security. When Secretary of State Kissinger
was asked by Senator Lowell Weicker to list any national
security matters that had been compromised during the year
of Congressional investigations, he declined to answer in
public session. Summing up disclosures about U.S. covert
involvement in Angola, Iraq, Italy, and Chile, the Senator
charged. "I would characterize them as a national shame,
rather than a national secret." (New York Tinges, 2/6/76)
"The illegal operations of the U.S. Government in
Chile have probably done more harm to our in-
telligence capabilities and indirectly exposed more in-
telligence operatives than all the leaks of intelligence.
The corrective here is not burying such abuses in
secrecy but in avoiding their repetition."
-Herbert Scoville, Jr.
former Assistant Director for
Scientific Intelligence, CIA
Washington Star-News 2/29/76
Yet, Administration spokesmen have repeatedly
attempted to change the focus of the recent investigations
from official crime to keeping secrets. Thus, when the CIA's
Operation CHAOS was revealed, CIA Director William
Colby, while admitting many of the allegations, responded
by calling upon Congress to pass an official secrets act.
When the FBI's illegal domestic programs were unearthed,
FBI Director Clarence Kelley warned that investigations
and possible restrictions could cripple law enforcement in-
telligence "in a hysteria of reverse McCarthyism." (Hearing
before the Civil Rights and Constitutional Rights Subcong-
mittee of the House Judiciary Committee, "FBI Counter-
intelligence Program", November 20, 1974, p. 47). It is
therefore not surprising that Mr. Ford's package includes a
series of proposals directed not at the officials who abuse
their authority, but at those who revealed the misdeeds to
the public.
Pledge of Allegiance
The Administration's reforms seek to shore up the
secrecy system, rather than address the abuses of that
secrecy. The Executive Order requires - as a condition of
employment - that Executive branch employees and con-
tractors sign an agreement not to disclose information
dealing with "sources and methods of intelligence" -
regardless of whether the information is classified correct-
ly, whether its release will do harm to the national security,
or whether it concerns official illegality. Since Executive of-
ficials already sign agreements not to release classified in-
formation, this provision serves primarily as a ritualistic re-
affirmation of the secrecy system after a period of leaks. On
March 1, 1976, tens of thousands of employees will have re-
wording of the CIA's secrecy pledge is extended to cover
every intelligence agency - thus uniting all in the most
restrictive agreement.
Official Secrets Act
President Ford recommends legislation for an Official
Secrets Act which would provide criminal penalties - up to
five years sentence and/or a S5000 fine - for disclosing "in-
formation relating to intelligence sources and methods."
Although seemingly it restricted term, recent history proves
that "sources and methods" is susceptible to dangerously
expansive application. As the House Intelligence Report
noted:
Existing standards for classifications are vague,
arbitrary, and overused. Almost anything can be
a "source" or "method" of intelligence - which
are the primary criteria for foreign intelligence
classifications. As a result, the sources and
methods by-line is used to classify items that
have practically no hearing at all on intelligence.
but were extremely embarrassing.
Richard Nixon used this rationale to temporarily deflect an
FBI investigation of CREEP money laundered in Mexico -
the investigation, he claimed might compromise CIA
sources. More recently, the CIA argued in a Freedom of In-
formation Act case that the release of a single gross budget
figure of the CIA would also jeopardize sources and
methods. Perhaps the logical absurdity was faced by the
House Committee on Intelligence. In response to a series of
Committee demands for the CIA "family jewels", the 693
page report of possible past wrong-doings compiled by
former CIA Director James Schlesinger, the CIA provided
first one, then a second "sanitized version." The second con-
tained a page deleted from the first because "it reveals sen-
sitive operative techniques and methods." The entire page
was a photocopy of a Jack Anderson newspaper article. (It
is true, of course, that newspapers are a source of CIA in-
telligence information).
The "Ellsberg clause"
The proposed legislation allows for a court defense that
the information was not lawfully classified or designated an
"intelligence source or method." But it makes this a ques-
tion of law for a judge to decide in camera (in secret
session). This provision, which might be termed the
"Ellsberg clause", eliminates a jury determination of the
lawfulness of classification, and may well constitute a viola-
tion of the Sixth Amendment right to a trial by jury.
Administration spokesmen have claimed that the
proposed legislation is not an Official Secrets Act. as it
would only affect leakers and not the press. However, the
Administration's explanation of the bill explicitly states that
"collateral prosecution related to the violation of any other
provision of law," is not limited. Thus there is nothing to
protect a reporter or editor from being called before a
federal grand jury and asked - on threat of jail for contempt
pledged their allegiaAPPliQWArfgWe(Rede4se SO04h10nt2 : C D,R&8-(kt814 660100660021-0
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INTELLIGENCE REPORT
The "Marchetti clause"
Finally, the Executive Order and proposed legislation
both seek to bolster the Executive's authority to enjoin the
publication of any information containing "sources or
methods." This provision might be termed the "Marchetti
clause", for it extends the CIA's successful effort to censor a
book co-authored by Victor Marchetti, former assistant to
the Director of the CIA. In the Marchetti case, the CIA in-
itially tried to censor 339 items as revealing intelligence
"sources and methods." Included in the list were such items
as the fact that CIA Director Helms could not pronounce
"Malagasy", and that Henry Kissinger was the most power-
ful man in the "40 Committee" meeting on Chile. In the
end, the court sustained the government censorship of 168
items.
The CIA and the Cult of Intelligence
as censored by the CIA
Under the proposed legislation, the Administration would
be able to get a temporary or permanent injunction upon
showing that "any person is about to engage in any acts or
practices which will constitute a violation," while greatly
limiting the defendant's right to review the legality of the
classification. Moreover, President Ford claims the right to
enjoin intelligence officials - even if the law is not passed by
Congress. The unprecedented assertion that the Executive
may legally enjoin officials without a cause of action es-
tablished by the Congress - a claim founded on national
security prerogatives in the Marchetti case - will now be
extended to every foreign intelligence agency and official.
Thus at a time when the country is in need of facts about
the secret agencies, the Executive branch has issued orders
that greatly inhibit the flow of information. White [louse
Counsel Philip Buchen catches the spirit of the Administra-
tion in his remark that the Executive Order puts "a real
threat over people who can't be controlled by discipline."
Senator Church put it another way: the Ford package "gives
CONGRESSIONAL ACCOUNTABILITY
Virtually all analysts agree that congressional oversight
of the intelligence agencies over the past decades has been a
failure. The wealth of abuses recently uncovered is itself
testament to the failure of the established committees to
check Executive activities. The conclusions drawn by the
Senate Committee on oversight of CIA activities in Chile
can he applied across the board: "The CIA did not
volunteer detailed information: the Congress most often did
not seek it."
The recent congressional investigations - conducted under
the glare of publicity and with the support of a Congress
stunned by the secret official illegalities - illustrate the dif-
ficulty of oversight in the best of circumstances. The House
Committee repeatedly concluded that "If this Committee's
experience is any test, intelligence agencies that are to be
controlled b% Congressional lawmaking are, today, beyond
the lawmaker's scrutiny.'
These secret agencies have interests that inherently
conflict with the open accountability of a political
body, and there are many tools and tactics to block
and deceive conventional Congressional checks.
Added to this are the unique attributes of intelligence -
notably "national security." in its cloak of secrecy and
mystery - to intimidate Congress and erode fragile
support for sensitive inquiries.
- Draft Final Report. House Select Committee on
Intelligence. Village Voice, February 23, 1976
One substitute for effective oversight has been the oc-
casional instance where individual Congressional represen-
tatives feel certain information must be revealed to the
American people. Thus, Representative Michael
Harrington (D-Mass) exposed the CIA's role in the "de-
stabilization" of the Allende regime in Chile, providing the
basis for the House and Senate investigations. Similarly,
Senators (as well as Executive officials) played a major role
in revealing the extent of the CIA's secret involvement in
Angola, leading to the dramatic repudiation of clandestine
intervention by the House and Senate. Although Ad-
ministration spokesmen have condemned both leaks, those
matters were clearly subjects fit for public debate and dis-
cussion.
SOUND FAMILIAR?
"Finally, successful and effective oversight of the
.foreign intelligence agencies depends on mutual trust
hetx?een the Congress and Executive."
President Ford
Message to Congress
2/18/76
The Nation must, to a degree, take it on faith that
we, too, are honorable men devoted to her service."
14, 1971
the CIA a bigger shie AojdnFbrrkgf~a%"2Y1b'ikhtV12 : IA-RDP88-01314R000100660021-0 April
stir about." (CBS Evening News, 2/20/76)
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INTELLIGENCE REPORT
President Ford's proposals for congressional oversight
define a rather clear return to the traditional role for the
Congress - reassuring the citizenry that the agencies are
accountable without actually interfering with their ac-
tivities. The thrust of Ford's design is to keep secrets rather
than to provide for effective oversight against abuse, thus
co-opting the Congress into the secrecy system.
Ford favors a Joint Committee of both Houses of
Congress rather than several committees. By reducing the
number of people with the information, Ford seeks to lower
"the risks of disclosure." Under Ford's plan, the proposed
Joint Committee would not have the right to be fully and
currently informed. The President asserts that prior notice
of covert action programs abroad - like Angola or Chile - in-
fringes upon his inherent constitutional powers. He also
seeks repeal of the Ryan Amendment to the Foreign
Assistance Act of 1974 which requires that he inform
selected congressional committees in a "timely fashion"
about each new covert action program approved by the For-
ty Committee. Instead, the President proposes to return to
the old system of keeping a committee "fully" informed at
his discretion.
President Ford also called upon the Congress to create
new rules which would establish strict sanctions for leaks -
including "leaks" from the Joint Committee to other
members of Congress. This provision might be called the
"Harrington clause" for it is clearly intended to end acts
such as Representative Harrington's exposure of the CIA's
program to "de-stabilize" the Allende government in Chile.
Ford also demands an absolute veto on the disclosure of
any classified information transmitted to the oversight com-
mittee. Despite Congresses' coequal position under the
Constitution, the President claims that the separation of
powers requires that "no individual member, nor com-
mittee, nor single House of Congress" can overrule a
classification stamp supported by the President. For the Ad-
ministration, anything short of a two-thirds vote to release
by both Houses of Congress constitutes a "leak."
Perhaps the best indication of the President's attitude
toward congressional oversight is found in the proposed
secrecy legislation. The bill provides criminal penalties for
any bureaucrat who releases information on intelligence
"sources and methods" to "unauthorized individuals," in-
cluding congressional representatives. Under the
President's proposed law, a bureaucrat giving information
to a Senator could be prosecuted as a felon. Information can
he revealed to Congress only in response to a formal request
from an authorized committee, and of course, unless the
bureaucrat leaks the information, the Committee won't
know to ask.
The Administration's clear assumption is that the secrets
of the intelligence agencies are more important than the
congressional constitutional responsibility to balance the
initiative of the Executive. Mitchell Rogovin, Special
Counsel to the CIA, has stated that an oversight committee
will get secrets "only if the agency is satisfied that the com-
mittee can keep secrets." The statement assumes that the
quire Fxecutive can
is simply s 1 dowi &p F l 5Un 0all~712
reasoning the mere presence of a potential critic on an over-
sight committee - someone the CIA thought could not be
trusted - would be reason enough to adopt the
"stonewalling" policy which so much frustrated the inquiry
of the Pike Committee.
ACCOUNTABILITY TO LAW
The first premise of the rule of law is that executive
officials are personally subject to ordinary law, a proposi-
tion which distinguishes the authoritarian from the con-
stitutional polity. Too often in the past, officials acting in the
name of "national security" assumed that the limits of 1a<
did not apply to their activities.
Nor was this assumption unfounded. For twenty-one
years, the CIA and the Justice Department maintained an
agreement which enabled the CIA to review any potential
prosecution. If the CIA's General Counsel believed that a
trial would reveal "highly classified information," the
charges would be dropped. In twenty-one years, only twenty
cases were referred to the Justice Department for judicial
prosecution regarding the CIA. Of these twenty cases, eight
were dropped at the CIA's request, for "security con-
siderations," nine were not prosecuted at the discretion of
the Justice Department, two cases are currently pending,
and only one case resulted in prosecution for improper of-
ficial conduct. (Letter of 21 July 1975, from John S. Warner,
CIA General Counsel, to Kevin Maroney, Deputy Assistant
Attorney General). According to the Rockefeller Commis-
sion, "none operated as a significant check on CIA's ac-
tivities." Officials in the Federal Bureau of Investigation
were not protected by formal agreement, but as part of the
Justice Department, they have enjoyed a similar immunity.
Thus, for twenty years the CIA and FBI ran a mail-
opening program which directly violated the explicit
provisions of a criminal statute. It is not surprising that one
director of that program, James Angleton, former Chief of
the CIA's Counterintelligence Staff, felt it "inconceiveable
that a secret intelligence arm of the government has to com-
ply with all the overt orders (otherwise known as laws) of
the government." (Washington Post, Sept 24, 1975).
Free from the threat of personal criminal liability, in-
telligence officials are also spared the possibility of civil
litigation. In the past, the classification stamp has prevented
many of the targets of illegal agency activities from knowing
the source or the causes of the distress. The Rockefeller
Commission's conclusion that "since practically all of the
CIA's operations are covered in secrecy, few potential
challengers are even aware of activities that might otherwise
be contested," could apply as well to the victims of the FBI's
COINTELPRO operations, or the NSA's cable monitoring
program.
The President's reform package made no attempt to cor-
rect this imbalance. Faced with clear evidence of massive il-
legal operations, the President made no mention of plans to
prosecute intelligence officials or dismiss those whose illegal
dF, -F i58V1df'l4W6bVf 66bd e0of limitations had
expire
 Approved For Release 2004/10/12 : CIA-RDP88-01314R000100660021-0
INTELLIGENCE REPORT
That the omission was not an oversight was
demonstrated by the Justice Department the day after the
President's program was unveiled. Justice Department
spokesmen announced that the charges against former CIA
Director Richard Helms for a 1971 burglary were being
dropped. The Department's attorneys felt they could not
prove the requisite "criminal intent." in spite of the fact that
the Rockefeller Commission - President Ford's own crea-
tion - found that such burglaries were "illegal when they
were conducted and would be illegal if done today." Edward
Bennett Williams, the attorney for Helms, suggested that
dismissal implied that present CIA Director George Bush
has the power to engage in similar break-ins, unless
specifically prohibited in the future.
It is obvious that the public is deeply troubled by the
findings of the investigations into the intelligence ser-
vice ... The government must move decisively. To
avoid charges of a whitewash, it is in the best interests
of the Justice Department to disqualify itself in this
case. What is vital now is to guarantee a full, thorough
and independent investigation. A special prosecutor
should be enlisted for this purpose, and given suf-
ficient authority to fully perform the task."
Senator Frank Church (D-Idaho)
"Government Adherence to the Law:
A Call for a Temporary Special
Prosecutor on Intelligence
Abuses"
The President opposes congressional calls for a tem-
porary special prosecutor to investigate the past abuses of
the intelligence agencies. Attorney General Levi claims that
such proposals are an attack on the "integrity" of the
Justice Department, yet not one indictment has been
returned by the Justice Department. President Ford has also
refused to notify the hundreds of thousands of Americans
who were the targets of illegal surveillance, so that those
affected could protect their own civil rights.
Indeed, it may become one of the sad ironies of this
period that the only prosecution which will be brought by
the Ford Justice Department will be that of Daniel Schorr,
for leaking the House Committee Intelligence Report in
"contempt" of Congress.
EXECUTIVE OVERSIGHT:
THE FOX GUARDING THE HENHOUSE
The final check against abuses, and the one given the
most attention in the Ford proposals, is internal account-
ability within the Executive branch. President Ford made it
clear that he would b "uItimat 1 ac u table,"~t d }~s,
package is designed t prcrgas~ tor~'e;e ~m4e'Y12
JOB DESCRIPTION FOR A SPECIAL
PROSECUTOR
Conspiracy to
infringe on con-
stitutional rights
(18 U.S.C. 241)
Warrantless
wiretaps (18
U.S.C. 2510)
Mail openings
(18 U.S.C. 1702
& 1708)
Burglary, unlaw-
ful entry (state
statutes. to be
referred to local
prosecutors)
\\:arratitless
searches
(1S U.S.C. 2236)
Perjury
(U.S.C. 1001)
Intelligence A ;ency Abuses
1st .amendment: CIA, FBI,
IRS programs to interfere with
peaceful dissent
4th Amendment: CIA, NSA,
FBI mail openings, wiretaps,
eavesdropping, break-ins
NSA interception of com-
munications
Military Intelligence wiretaps
of Berlin Democratic Club,
FBI taps as part of COIN-
TELPRO
1952-1973 CIA/FBI mail in-
tercept program
CIA burglaries to investigate
supposed security breaches,
FBI "black bag" jobs
break-ins without reasonable
cause and with malicious intent
testimony of CIA Director
Richard Helms on Chile and
domestic spying before con-
gressional committees
most of the abuses of the past were not isolated acts of
zealous low-level officials, but on-going programs operated
or approved at the highest levels of government. The
reforms seem to offer the unblushing proposal that the fox
guard the henhouse - that the Executive protect us from the
abuses of the secret executive agencies.
According to the Executive Order, illegal or questionable
activities within the foreign intelligence agencies are to be
reported to "appropriate authorities." For the middle-level
bureaucrat faced with an illegal order going to the press or
the Congress would invite criminal prosecution under the
proposed Official Secrets Act. The only "appropriate
authority" is within the executive agencies themselves, the
inspectors general or general counsels of each agency. In the
past, however, the inspectors general have often responded
to illegal programs by producing papers on "potential flap
activities,"warrnning the Agency to conceal the abuse. For
eft/~t-Nb' l iW@_94W666W401~11 r?viewed the illegal
mat -opening program in an or ered "emergency
 INTELLIGENCE REPORTroved For Release 2004/10/12 : CIA-RDP88-01314R000100660021-0 PAGE 9
''IF I SEE A AY FOXES AROUND, !'LL LET YOU KNOW'
'' You could imagine a situation where you have a "tan
in charge of a government or a situation in a foreign
country where our American interests are neing
damaged or cubverred or injured one war or another.
The thought that by using influence or political means
you could eliminate that personality and have hint sub-
stituted for someone who would be favorable to us I
think would be entirely legitimate." (emphasis added)
Robert Murphy, Presidential appointee to the
Oversight Board, NBC Nightly News. 2/18/76
"Covert activities conducted outside the United States
are not in violation of any existing law that I know
of "
Leo Cherne, Presidential appointee to the
Oversight Board, NBC Nightly News. 2/18/76
i~tEczs
plans" and a "cover story" in the event of disclosure.
Similarly, general counsels have often been "can-do"
lawyers attempting to find some justification for dubious ac-
tivities. When CIA General Counsel Lawrence Houston
learned of the CIA's assistance to E. Howard Hunt which
subsequently was used in the Watergate break-in, he
suggested it had not been a violation and need not he
referred to the Justice Department for prosecution since he
did "not think it was a move by the Agency in the direction
of becoming a Gestapo, which is what Congress intended to
prevent." (Inquirt? into the Alleged Involvement of the CIA
in the Watergate and F,llsberg Matters, Hearings of the
Special Subcommittee on Intelligence of the House Armed
Services Committee, July, 1974 p. 39). As Nicholas M.
Horrock wrote in the New York Times on February, 21,
1976, "It was not the Army Inspector General who ferreted
out My Lai, nor the Air Force Inspector General who found
out about cost overruns in C-5A aircraft development, or
the CIA Inspector General who stopped assassination plot-
ting."
According to the President's plan, any information
received raising serious questions as to the "legality or
propriety" of an activity will eventually be brought to the
President's newly created Oversight Board. The Board's
initial membership will not inspire the trust of a dissident of-
ficial. The three Presidential appointees have long histories
of protecting the intelligence community, not exposing it.
One, Leo Cherne, is an old cold-warrior associated with
such right-wing groups as Citizens' Committee for a Free
Cuba, the Council Against Communist Aggression, and
Citizen's Committee fAPPfRW4 tioXt 49AsA 2Q9t41119/12
Two other organizations with which he maintains close ties -
the International Rescue Committee and Freedom House -
both received money from the Kaplan Fund, revealed in
1967 as one of the many foundations used as a conduit for
CIA funds. The Chairperson. Robert D. Murphy, 81 years
of age, was on the President's Foreign Intelligence Advisory
Board during the Bay of Pigs fiasco, the planning of
assassination plots against four foreign leaders, the
American supported military coup in Brazil, and the covert
intervention in Chile's presidential election in 1964. CBS
News reported that Murphy once bemoaned the fact that
the U.S. had not tried to assassinate North Vietnamese
leaders. Although Murphy could not recall making this
statement, one wonders what either of these two men would
deem "activities that raise questions of legality or
propriety."
The Board is instructed to report only to the President
and the Attorney General, again limiting recourse against
abuses approved at the highest levels. Attorney General
Mitchell, when told of the mail opening program, reportedly
replied he had "no hang ups." If Operation CHAOS had
been reported to President Nixon and no one outside the
Executive branch, it would still be going on. At a time when
74 percent of the people polled by a Harris survey agreed "it
was wrong for the CIA to work out a deal with Mafia
characters to try to assassinate Castro." and 61 percent
agreed "it was a violation of basic rights for the CIA and
FBI to conduct spying on prominent Americans here at
home," Ford's proposals for Executive oversight offer little
security from future abuses. President Ford assured the
American people that there would be no intelligence agency
abuses in his administration. We can but take him on his
~i}I$$~as4Q~i~1 Ql@?arlt~ility except trust.
 (3)
COVERT ACTION ABROAD:
MAKING BRIBES, LIES AND SECRET
WARS LEGAL
Announcing that he would not "dismantle the CIA," the
President failed to recommend any substantive restriction
upon covert operations abroad - except a ban on peacetime
assassination (previously treated as murder in American
law). CIA Director George Bush admitted in response to a
reporter from the Los Angeles Times that the President's
program would "not bar bribery" of foreign officials
abroad. Mr. Bush might have added that the program also
would not bar kidnapping, extortion, interference in foreign
elections, para-military adventure and coup d'etats, or the
broad range of other activities which the CIA undertakes
overseas.
WHAT IS COVERT ACTION?
According to the House Select Committee's report, as
reprinted in the Village Voice on February 16, 1976,
covert action abroad falls into the following main
categories:
23%
29%
Media & Propaganda
(2)
(1) "This is the largest covert action category, and its
funding has occurred in large part in the developing
countries ... One Third World leader received some
S960,000 over a 14-year period."
(2) "Activities have included support of friendly
media, major propaganda efforts, insertion of articles
into the local press, and distribution of hooks and
leaflets."
(3) "The 23 percent approvals in this category from
1965 to 1975 have taken one of essentially four forms:
secret armies, financial support to groups engaged in
hostilities; paramilitary training and advisers; and
shipment of arms, ammunition and other military
equipment."
Approved For Release 2004/10/12: CIA-RDP88-01314R000100ffW9l1 QENCE REPORT
16%
other
32%
Election
Support
(1)
Paramilitary '
Arms Transfer
Indeed the President has apparently adopted the position
that covert action abroad - the secret interference in another
country's internal affairs - is an inherent power of the
Presidency. His directive authorizes the CIA to undertake
"special activities," defined as secret "activities other than
the collection and production of intelligence." The President
thus reaffirms his power to order the CIA to do anything
abroad in secret - other than peacetime assassination.
This claim should be viewed, in conjunction with the
President's own record on covert interventions abroad. A
succession of Presidents have had a rather expansive defini-
tion of what clandestine operations are justified in the name
of national security, and President Ford is no exception. He
personally authorized the covert intervention in Angola and
the clandestine funding of political parties in Italy - both
considered by the majority of Congress to be secret abuses
of the first order. Indeed the Angolan intervention was un-
dertaken in secret in part to finesse any public debate, and,
as Secretary Kissinger admitted in his press conference of
February 12, 1976, in part because overt assistance was
probably illegal under the current American foreign
assistance larks.
A major debate is now occurring about the President's
power to undertake clandestine activities - ranging from
spying to var-making - on his own authority. President
Ford's program clearly indicates that he supports a con-
tinuation of secret Presidential foreign policy.
THE RULE OF LAW AND THE KING'S MEN
The opening remarks of the President's public remarks
set the tone. One year of intelligence investigations was
enough. he told us, just as his predecessor had felt that one
year of Watergate was enough. We must not, he stated,
become "obsessed" with the past; the over-riding task for
the future was to "restore the confidence of the intelligence
community."
Taken together, the President's proposals seek to ac-
complish this by making intelligence officials accountable
only to higher orders within the Executive. The issuance of
executive orders, secrecy legislation, restrictive oversight
provisions - all seem designed to exempt the intelligence
agencies from account- bility to law.
The legal philosopher, Bernard Schwartz, once defined
three fundamental elements of tht rule of law: "(1) the
absence of arbitrary power; (2) the subjugation of the State
and its officers to ordinary law; and (3) the recognition of
basic principles superior to the State itself."
The President's proposals should he measured against
this standard. His proposals seem to establish the foun-
dations for once again exempting the covert arm of the state
from the reach of ordinary law. In the name of reform, the
President has recreated the King's Men, a covert executive
spying and para-military capacity for use at home and
2: &A RbP88-01314R000100660021-0
 Approved For Release 2004/10/12 : CIA-RDP88-01314R000100660021-0
INTELLIGENCE REPORT
DIFFERENT DIRECTIONS
Intelligence Agency Oversight
This resolution (S. Res. 400,) would establish an I I
member permanent Senate Committee on Intelligence
Activities with budgetary authority, legislative over-
sight responsibility, and the authority to release
classified information. The President will be required
to keep the Committee "fully and currently informed
with respect to intelligence activities, including any
significant anticipated activities."
Special Prosecutor
H.R. 11357, sponsored by Representative Drinan (D-
Mass), establishes a temporary Office of Special
Prosecution. The Special Prosecutor would be ap-
pointed by the President and confirmed by the Senate.
with a mandate to investigate and prosecute offenses
by federal employees "in connection with or arising
out of intelligence on counterintelligence activities or
operations." The bill has been referred to the Subcom-
mittee on Criminal Justice of the House Judiciar\
Committee.
Notice to Subjects of Files
Representative Bella Abzug (D-NY) introduced H.R.
12039, requiring the government to inform individuals
and organizations who were subjected to surveillance
under intelligence programs directed against domestic
dissidents that the agency maintains a file on them.
The subject of the file will have the option to require
that the file be destroyed.
RECOMMENDATIONS OF THE AMERICAN
CIVIL LIBERTIES UNION:
Establish
legislative charters for each major agency, all
provisions of which are publicly known, and which
provide that all activities not specifically authorized
therein are prohibited
Abolish
? aill covert and clandestine organizations
? the use of spies in the collection of foreign in-
telligence during peacetime
*the Central Intelligence Agency and reconstitute
it as the Foreign Intelligence Agency
Prohibit
? secret budgets for the intelligence agencies
? the cover-up of criminal conduct
RECOMMENDATIONS OF THE HOUSE
COMMITTEE ON INTELLIGENCE:
Establish
?a standing Committee on Intelligence of the
House of Representatives
? a Director of Central Intelligence separate from
any intelligence agency to coordinate and oversee in-
telligence community
*an independent office of the Inspector General
for Intelligence to investigate possible or potential
misconduct
Abolish
? the Internal Security Branch of the FBI
?the Defense Intelligence Agency
Prohibit
?anv covert action unless the DCI notifies the
committee within 48 hours stating its nature, extent,
purpose, and cost, and the President certifies in
writing that it is required to protect "the national
security of the United States"
? am agency engaged principally in foreign or
military intelligence to directly or indirectly engage in
the training or supplying of domestic police agencies
?intelligence agencies' authority to keep secret
budgets
? transfer of funds between intelligence agencies
? covert funding of persons associated with
religious or educational institutions or members of the
media with general circulation in U.S.
? covert publication of books, or the planting or
suppression of stories in any journals or electronic
media with general circulation in U.S.
? the release (without authorization) of informa-
tion obtained by the Committee
? assassination except in time of war
Empower
? the Committee on Intelligence to release any in-
formation or documents in its possession under the
following circumstances:
1) vote of a majority of the Members of the
Committee
2) if negative vote, a Member of the Committee,
with the signatures of one-fifth of the House, can con-
vene the House in secret session for the purpose of in-
forming all members on the question. The House may
then vote to release information
? the General Accounting Office to conduct a full
and complete management and financial audit of all
intelligence agencies, with no limitation by an
executive classification system.
Limit
Empower ? FBI's investigations to those based on criminal
? Congress to release, unilaterally. information prosecution rather than intelligence gathering, and
classified by thAkF6V~Ytf Fli #'R lease 2004/10/12 : CIn-q2C7ft8*T8V4l 0WCVddgW211!oirrant.
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