PROHIBITION OF POLICE POWERS AND INTERNAL-SECURITY FUNCTIONS

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 01482438
• Release Decision: RIPPUB
• Original Classification: U
• Document Page Count: 5
• Document Creation Date: December 28, 2022
• Document Release Date: August 7, 2017
• Case Number: F-2007-00094
• Publication Date: May 9, 1973

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FROM: NAME, ADDRESS AND PHONE NO.
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� General Counsel
5/9/73
UNCLASSIFIED CONFIDENTIAL
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NO- 237 Use previous editions
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MEMORANDUM FOR:
SUBJECT:
9 May 1973
Director of Central Intelligence
Prohibition of Police Powers and Internal-
Security Functions
1. This memorandum provides for your information a
legal opinion pertaining to the Agency's relationship with Howard
Hunt in 1971.
2. In 1944 General Donovan presented the President with
a plan for a permanent peacetime foreign intelligence organization.
This proposal was leaked to the Chicago Tribune, which promptly
raised the cry "Gestapo. " This thought then was large in the minds
of the members of Congress when considering the provisions of the
National Security Act of 1947, which pertained to the establishment
of the Central Intelligence Agency.
3. While emphasizing the foreign intelligence function, the
congressional hearings and debate recognized that the Agency could
not operate in a vacuum, that it would have to be domestically based,
that it would acquire foreign intelligence from domestic sources,
that it would have a foreign counterintelligence responsibility to
protect our national security, and that the Director would be
responsible for protection 9f intelligence sources and methods.
Derived from this last responsibility was the recognition that the
Agency would also have a responsibility for the physical security
of its establishment and the integrity of its personnel, including,
by agreement with the FBI, the normal security investigation of
our employees and persons who need access to our classified
mat erial.
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4. After substantial debate of the above concepts, Congress
enacted the first proviso of section 102(d)(3) of the National Security
Act "That the Agency shall have no police, subpoena, law-enforcement
powers, or internal-security functions: . . . " There have been no
court decisions interpreting this proviso. Internally, we have felt
that in most cases the prohibited area is clear. Thus, while planning
and monitoring the physical security of our installations, if any action
is to be taken to protect them, we call on the FBI or the local police.
Similarly, in connection with the integrity of our employees, if any
information is derived which appears to have a criminal aspect or
danger to the national security, we again report to the FBI or the
police. Our effort has been to assure that none of the personnel of
the Agency engages or participates in any of the prohibited activities.
Thus, when we are called on to assist the Secret Service in the
protection of the President or visiting dignitaries, our employees
selected for this purpose are detailed to the Secret Service and are
placed under the direct administration and control of the Secret
Service. This is by formal interdepartmental agreement pursuant
to statute, and no objection has been raised to such an arrangement.
From time to time information acquired by the Agency incident to
its foreign intelligence collection has become germane to a domestic
criminal prosecution, and this has not been construed as an exercise
of the law-enforcement powers or internal-security functions.
5. In connection with Howard Hunt and his activities, there
are three areas of concern:
a. The first is the provision of alias identification
documentation and disguise materials for the purpose,
according to Hunt, of interviewing an unidentified individual
in alias. The purpose of the interview was not specified by
Hunt. Later, at Hunt's request, similar material was given
to a then unidentified associate now known to be Gordon Liddy.
In addition, Hunt requested and was given a recorder and
a concealed camera with film. Again, the use of these items
was not spelled out by Hunt. Ln and of themselves, these
actions by Agency employees certainly are not the exercise
of subpoena powers, nor do they appear to be the exercise
of police or law-enforcement powers. Also, the provision
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of this equipment does not appear to be a violation of
the prohibition on the Agency against internal-security
functions. In retrospect, it appears to be assistance
to Hunt without knowledge that he was engaging in an
activity which appears to have been directed at
Ellsberg in connection with release of the Pentagon
Papers. The break in of the office of Dr. Fielding
by Hunt was clearly an illegal entry, but no Agency
officer had any knowledge that such an act was
contemplated or reason to believe that the provision
of the material would be related in any way to such
an act.
b. The second area is the development at
Hunt's request of the film from the concealed camera.
The Agency employee who developed the film appears
to have had no knowledge of the subject matter of the
film or why it was taken. Again, at most this appears
to be unwitting participation in Hunt's activities, which
may have had some relationship to internal security.
c. The third area is the provision to the White
House, at the request of NSC officials, of a psychiatric
assessment of Ellsberg made from newspaper stories,
magazine articles, and Department of State and FBI
reports. This again appears to be assistance to an
effort to analyze what lay behind the leak of the Pentagon
Papers by Ellsberg and others in order to prohibit such
leaks in the future. It does not appear to be the exercise
of an internal-security function as such.
6. In sum, I am of the opinion that the Agency did not violate
the statutory prohibitions in the National Security Act of 1947, as
amended, by the provision of the above-mentioned equipment,
services, and reports. I can find no law which specifically authorizes
their provision, nor can I find a law that specifically forbids it.
Certainly I do not think it was a move by the Agency in the direction
of becoming a Gestapo, which is what Congress intended to prevent.
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7. The question of judgment in approving such actions,
and of possible naivete in not ascertaining what was then specif-
ically contemplated, is a matter for evaluation of the relation-
ship between the White House requesters and those Agency
officials with a natural desire to cooperate with the White
House.
LAWRENCE R. HOUSTON
General Counsel
cc: DDCI
ES/ CIA MC
EA/DCI
Asst to DCI-Mr. Thuermer
OLC
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