ISSUE PAPER

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP02T06251R000900310023-0
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 8
• Document Creation Date: December 22, 2016
• Document Release Date: August 14, 2012
• Sequence Number: 23
• Content Type: MISC

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ISSUE:~An Executive Order to Replace ,# 0. 12036,','United States Intelligence
Activities."
INTRODUCTION
1. The Ford and Carter administrations each had its "own" executive order
governing how the U.S. Intelligence 'Community is organized and directed and
what restrictions apply to intelligence activities. It is logical to assume that
the Reagan administration will at least consider, if not a?tiually issue, a
replacement for E.0.* 12036. The comments which follow treat with such a new
executive order from the viewpoint-of the Department of Defense. The framework
is provided by t e Table of Contents of E.O. 12036.
2. The contents of any new executive order on intelligence activities-could
be markedly affected by any White House decision to assign the senior U.S.
intelligence officer a markedly different role than the Director of Central
Intelligence now has. No attempt is made in this paper to anticipate the
direction any such decision might take. Instead, the focus is on ho-w E.O.
12036 could be improved.
SECTION 1. DMCTION.DUTIES A N D RESPONSIBILITIES WI-7i. RESPECT TO Tx NATION L
IN'T'ELLIGENCE EFFORT
1-1 National Security Council.
A very general statement such as contained in 1-101 is all that need be
said about the NSC role. An attempt to involve the NBC more directly,as was tried
in President Ford's E.O. 11905, demonstrated tnis is not a fruitful approach.
1-2 NSC Policy Review. Committee, and
1-3 NSC Special Coordination Committee.
It matters little how the NCS committee structure is organized'so long
as provision is made for dealing at a high level with functions now accomplished
by the PRC and SCC. The important thing is to involve cabinet level officers or
their immediate subordinates on an active basis and yet avoid burdening their time.
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 Functions that particularly need handling by'an NSC committee include:.
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Developing national policy for the conduct of counterintelligence
activities.
operations; and
special activities (covert actions);
_--Approving proposals for sensitive foreign intelligence collection
--Considering and recommending action by the President on proposed
proposals for responsiveness to the needs of NSC members; .
Reviewing the National Foreign Intelligence Program and budget
--Establishing national intelligence requirements and priorities;
The functions assigned to the NFIB in 1-401 ,are appropriate to a btdy that
National Foreign Intelligence Board.
serves as the senior advisory agency for the DCI.
Present membership arrangements pose problems. Considering the resources the
Military Services provide to the national intelligence effort, it is incongruous..'~_
that the Service intelligence chiefs are "observers" rather than members of the NFIB.
It also is incongruous to delimit NFIB participation when substantive intelligence
products are being reviewed but not.when the board handles any other business.
For some purposes an ITFIB of the present size is clearly appropriate, e.g.
for budget reviews, but consideration could be given to handling part of the IvFIB
b Usiness by an Executive Committee consisting of the DCI,the Deputy Under Secretary
of Defense (Policy-Review),-the Director,NSA, Director, DIA and the head of-II~TR/State.
1-5. National Intelligence Tasking Center.
The qualms that.aocompanied beginning efforts to establish the NITC have
subsided and in retrospect there seems to have been little,if any, need to split
the Intelligence Community-Staff into a Collection Tasking Staff and Resource
Management Staff. -The PHOTINT,SIGINT and HUM= Tasking Offices are continuing the
vwrk of-the comparable-DCI committees --COMIREX,SIGINT and-Human Resources-Committees
,on which all interested Intelligence Community _components participate. The National
Collection-Planning Office is combining the work of the DCI Critical Collection
Problems Committee (CCPC) and what the Intelligence Community Staff used to. do re:
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the DCID 1/2 requirements and priorities problem..
To date there has been only one 4exercise testing the passing-of control-of the NI
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 from the DCIto the Sear..ary of Defense as provided at ,ec. 1-504 of the order.' Thi
test had the expected "first time" problems. The order should be, amended to provide
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that practice exercises are conducted in the Pentagon at least annually.
1-6. The Director of Central Intelligence
Sec . 1-601
NOM of E.O. 12036--pose no problems to effective intelligence activities within
On the basis of experience to date, the 13 duties assigned to the DCI in-
the DOD. This would continue to be true if the'same duty aspignments were divided
between the Director.of CIA and a senior U.S. intelligence officer-who was
separated from the direct management of the CIA.
1-602.....
National Foreign Intelligence Prograa+ Budget
Since the Defense Department provides more than three-fourths- of the resources
in the NFIP and this section gives the DCI "full and exclusive authority" for approval
of the NFIP budget - an authority that clashes sharply with the Secretary's
responsibility for his departmental budget - it should be clear why budget matters
are a potential continuing source of conflict between the DCI and SECDEF. Difficulties
that have required many,=any hours of interstaff negotiation, with no apparent
benefit to the overall intelligence program, could be eliminated by two changes
in the executive order :
--Amend the definition of the National' Foreign Intelligence Program at
Sec. 4-210(b).to eliminate mention of "the General Defense Intelligence
Program. This would recognize that DoD national cryptologic and special
reconnaissance activities are properly part of the IV'FIP, but would leave
decision as to what DoD activities now in the GDIP and under DCI budget
approval. authority actually are national intelligence activities up to
a joint decision by the DCI and SECDEF.as provided in Sec...4-210(c).'
--This change was sought by the SECDEF uT'the development of
E.O. 12036.-The-DCI-was opposed.-Decision -went to President Carter,
who sided with the DCI.
--Eliminate Sec. 1-602(h), which authorizes the DCI to-conduct "program
and performance audits and evaluations." This authority has been used
by the DCI Resource Management Staff to conduct investigations and
engage in activities which go beyond budget review into highly detailed
management decisions that -should be left to DoD determination.
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1-603. Responsibi.ities for National Foreign'InteAligence
laless required to coordinate national intelligence products a DCI may tend _:.
to neglect this aspect of liis Community role. This section should be amended by
addition of a final sentence as follows :
"The DCI shall.?ensure that National Intelligence Estimates and
other national estimative products are fully coordinated with the
heads of .. collection and production components represented on the
National Foreign Intelligence Board."
1-604. Protection of Sources, Methods and Procedures
1-605. Responsibilities of Executive Branch Agencies
1- . Access to CIA Intelligence . .
These sections pose'no problems to the Defense Department.
~-7.Senior Officials of the Intelligence Community
At Sec. 1-705 and 1-709 are the first mentions of a requirements- that
intelligence officials report on "unlawful or improper activity." What -is unlawful
can be objectively determin4d, but what is "improper" is a completely undefined and
subjective standard. This phrase was originally included in President Ford's E.O. 1:
in an effort to take steam out of the expected recommendations from the Church
Committee, then completEng its investigation of intelligence activities. What some
view as "improper" may be perfectly "proper" to others. This is a standard that
discourages the imagination and initiative that can be so important in effective
intelligence collection activities. All references to
activity should be deleted from the executive order.
1-8. The Central Intelligence Agency
reporting on "improper"
The fact that Sec. 1-802 specifically authorizes CIA to produce military
intelligence causes heartburn among some DoD intelligence officers, but there is
no point in opposing such. The CIA role in production of military intelligence is
deeply imbedded in its history, and is viewed in some parts of the government as a
needed counter to "parochialism" in military intelligence produced by DoD components.
The duties and responsibilities assigned to CIA in Sec.*1-8 are appropriate to a
national intelligence organization of its nature.
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.1-9. The Department of State
The fact that DoD intelligence activities
for which overseas Chiefs oitrfission
are included in the mission activities
are responsible for "direction and coordination
can on occasion be a matter of DoD concern, but this provision in E.0...12036 mere;iy
reflects existing statutory authority that the State Department possesses.
1-10 The Department of the Treasury
1-1201. The Defense Intelligence Agency
1-1202. Rational Security Agency (LISA)
1-1203. Offices for the Collection of Specialized Intelligence Through
Reconnaissance Programs
1-1204+
The Foreign Intelligence and Counterintelligence Elements
of the
Military Services
1-1205.
Other Offices Within-the Department of Defense
Within the-limitations--of an unclassified order, these sections are satisfactory;
The thirteen duties and responsibilities assigned to the Secretary of Defense
adequately cover the Secretary's intelligence role, and require no change, so long
as the order continues to hold the DCI responsible for approval of the National
DoD has no changes to propose for this section.
1-11. The Department of Defense
Foreign Intelligence Program budget submitted to the President.
1-12 Intelligence Components Utilized by the Secretary of Defense
1-13.. The :Pevartment of Energy
1-14. The Federal Bureau of Investigation
1-15. The Drug Enforcement Administration
These sections pose no problems to DoD. Justiee Department representatives have
indicated-some concern over having DEA considered part of the Intelligence Community
but DoD has no reason to take a position on this.
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Section 2. RESTRICTIONS ON INTELLIGENCE ACTIVITIES
This section of E.O. 12036 is a modest amplification of the restrictions written
into E.O. 11905 in 1976 as part of an Executive Branch effort to anticipate -_and
lessen the public impact of - recommendations expected to be in the Church Committee`.
report, then in final drafting stages. While these restrictions apply to all
DoD intelligence components they were written with CIA activities primgrily in mind.
As required by the order, the Defense Department has promulgated implementing
procedures. concerning these restrictions. Negotiations for Attorney General approval'
were time consuming and it was not until November 1979 that a 130-page DoD 5210.1-R,
"Procedures Governing the Activities of DoD Intelligence Components that Affect
-United States Persons," was published. A revision of these procedures on the basis
of operating experience is in the final stages of coordination.
E.O. 12036 gives the Attorney General a much stronger role in oversight of
responsibilities formerly exercised by General Counsels of the departments and
agencies. Any revision of E.O. 12036 should include-a re-examination of the role
intelligence and approval of intelligence directives and regulations than had
existed heretofore.In some ways, the Attorney General role usurps and overlaps
of the Attorney General;
Provisions of the order's Sec. 2-202, "Electronic Surveillance," lost much of
their applicability upon passage in:October 1978 of "The Foreign-Intelligence.--
Surveillance Act" (P.L. 95-511) - the "domestic wiretap bill". Review of-this
section should be a part-of any revision of E.O. 12036.
Revision of Sec. 2-204+, "Physical Searches," --would be-:helpful to DoD if pribvisior
were made.for.unconsented searches of military personnel by a-Defense component. The
present section stipulates that "no agency within the Inte11i8ence Community except
the FBI may conduct any unconsented searches within the United States:"
The restrictions section most in need of clarification/modification is Sec.2-207.
"Undisclosed Participation in Domestic. Organizations." This is4?a highly sensitive
topic and loosening of. existing restrictions will attract. unfavorable attention from
organizations such as the ACLU-and other critics of intelligence activities.
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Sec. 2-305, "Prohibition on Assassination," was included because of the
any specific prohibition on assassination unnecessary-in an executive order.
Congressional investigations, but it.is applicable only to federal employees and-.,
persons acting fpr the Government. Criminal statutes concerning murder should make
Section'3. OVERSIGHT OF INTELLIGENCE ORGANIZATIONS
3-1. Intelligence Oversight Board
E.O. 12036 continued the IOB that had been crea'Ved under E.O. 11905,
but gave the IOB the additional authority of conducting such investigations as the
Board deemdd necessary.In view of the role of the Attorney General in oversight of
intelligence activities, the IOB serves no particularly useful purpose and could
be abolished.The only reason for retaining it has to. do with public relations,
since its abolition could be criticized in the media as an "unleashing" of
intelligence.
Even if the IOB is retained, the charge that it is to be concerned with
the "propriety" as well as the legality of intelligence activities should be
eliminated. The earlier discussion of this point in treatment of Sec. 1-7 applies.
3-2-Inspectors General and General Counsel
3-3.Attorney General
3- Congressional Intelligence Committ4es
If decision is made to eliminate the IOB and delete requirements to report on
matters of "propriety" these sections will require revision; otherwise they pose
-no problems to DoD. After long negotiation, the. final approved version of 5.2281+- ,
the "Intelligence Ov&rsight Act of 1980," largely reflected the introductory languag(
Section 4. GENERAL-PROVISIONS
or zeczion
4-1.' Implementation
Provisions generally-:of -this -nature should be included in any comprehensiv+
executive order dealing with intelligence' activities. This section poses no
problems to-DOD intelligence activities.
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4-2 Definitions
Sec. 14-207, "Intelligence Community and Agency or Agencies Within the
Intelligence Community," included the Drug Enforcement Administration as a component
element of the Community. This'vas primarily to assure that overseas-activities of
the DEA would be appropriately coordinated with the CIA. Whether DEA should be =
.considered a .part of the Community should be determined between CIA and the
Department of Justice. It is of no real concern to boD whether DEA is in ors- out.
Sec. 4-210(b) ,'-'The--National Foreign Intelligence Program," should be
amended by deletion of "the General Defense Intelligence Program." This already
has been discussed in consideration of Sec. 1-602.
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