LETTER TO FREDERICK P. HITZ FROM STANLEY SPORKIN

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP05C01629R000100030001-3
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 8
• Document Creation Date: December 22, 2016
• Document Release Date: August 12, 2011
• Sequence Number: 1
• Content Type: LETTER

Approved For Release 2011/08/12 : CIA-RDP05CO1629R000100030001-3
Frederick P. Hitz, Esquire
The Flour Mill
Suite 302
1000 Potomac Street, N.W.
Washington, D.C. 20007
I appreciate the opportunity to comment on the report of the
Working Group on Intelligence Oversight and Accountability, Task
Force on Intelligence and Counterintelligence, American Bar
Association Standing Committee on Law and National Security. The
report, entitled "Oversight and Accountability of the U.S.
Intelligence Agencies: An Evaluation," represents a commendable
effort to address a very complex, important, and timely topic
relating to the conduct of intelligence activities. It generally
concludes that the existing intelligence oversight
mechanisms--both internal and external--are working well and need
not be modified to any great extent. I wholeheartedly support
that conclusion, but wish to convey my thoughts and concerns
regarding certain segments of the report that I believe are in
need of revision or clarification to ensure a product that serves
as an unambiguous and persuasive lodestar in the discussions on
oversight for the future.
There are four general observations that I would like to
convey before remarking on specific provisions in the report that
I believe should be reviewed. First, it seems to me that the
drafters assume too great a role for in-house counsel in the
oversight process. As you know, some critics of the Intelligence
Community likely will find something objectionable in almost any
activity that is conducted in the U.S. national interest, whether
or not there is any legitimate question as to the legality of
those operations. In-house counsel cannot solve every problem
that arises, and should not be expected to. It is the
responsibility of management and senior policy makers to make the
final determinations with respect to particular operations, with
appropriate advice of counsel. Although I agree that lawyers can
provide a measure of objectivity and perspective that can be an
invaluable resource to intelligence managers, I believe your
report goes too far in that it seems to suggest that a review by
legal counsel of agency operations at the outset and throughout
their conduct will solve all the oversight and accountability
problems that you have raised. As much as we as lawyers may not
Approved For Release 2011/08/12 : CIA-RDP05CO1629R000100030001-3
 Approved For Release 2011/08/12 : CIA-RDP05CO1629R000100030001-3
wish to acknowledge it, a lawyer's advice as to the wisdom as
opposed to the legality of a particular course of action is only
one factor to be considered by the decision makers. Thus, I agree
that in-house counsel should--as they in fact do--continue to play
a significant role in the review and conduct of intelligence
operations, but think that certain segments of the report (more
specifically addressed in the attachment to this letter) are based
on the erroneous premise on the role of agency lawyers.
I also think the report has failed to place sufficient
emphasis on a most serious problem facing the Intelligence
Community today; namely, the efforts by Congress to involve itself
in the micromanagement of intelligence activities. This has been
evidenced in many ways over the past several years with increasing
frequency. As you know, there are not two oversight committees
today, but, in fact, there are at least four. The report should
discuss the significant oversight roles the House and Senate
Appropriations Committees play, notwithstanding the language of
the National Security Act which provides for two intelligence
committees--HPSCI and SSCI. I think this is one indication of a
general tendency in the report to focus more intently on the
Executive Branch role and response to oversight requirements,
without a corresponding attempt to take a critical look at the
role of Congress and how it is carried out.
An additional general observation regarding the report is that
the questionnaire should not be given the prominence it has
received in the report because the conclusions and recommendations
are those of the drafters, and because the statistical
significance of the results of the individual questions is so
minor; only 28 responses were received. I think a decision will
have to be made to determine whether or not this report is to be a
report of a limited number of individuals based upon personal
observations and considerations, with some regard for the comments
received in the questionnaire, or whether the questionnaire itself
must or should take on a significance of its own. If the former
is the case, the responses to the questionnaire should be
deemphasized and, perhaps, attached as an appendix to the report
itself. Alternatively, more careful consideration could be given
to the questionnaire and the responses so that the report will
reflect more clearly than it now does which comments are those of
the respondents, which are those of the drafters, and whether
there is any particular significance to the responses that have
been included as opposed to those which have not. I think it is
inappropriate, for example, to quote in full the comments on
respondents who are in the minority of an issue, without including
a representative majority statement. The inclusion of articulate
and minority views only, in my view, detracts from the overall
persuasiveness of the report and leads to an ambiguity that is
easily remedied.
Approved For Release 2011/08/12 : CIA-RDP05CO1629R000100030001-3
 Approved For Release 2011/08/12 : CIA-RDP05CO1629R000100030001-3
Finally, it seems to me that the report should be revised to
bring it sufficiently up to date. Although the drafters obviously
do not have complete access to information relevant to
intelligence oversight, you may wish to circulate to some of the
initial interviewees and other knowledgeable persons a request for
any comments they may have in light of any changed circumstances
or recent events. For example, covert action reporting procedures
between the DCI and the intelligence committees are now in
existence, CIA lawyers are playing an increased role in review of
covert operations (see discussion in attachment), and efforts are
being made by Congress to clarify the reporting requirements of
the National Security Act. These events--all subsequent to the
preparation of the ABA report--are relevant to the topic of
inquiry and provide perspective not apparent in the current draft.
I hope these comments, and additional comments on specific
segments of the report that I have attached, will be useful in
your efforts to edit and revise the report. I wish to state again
that I believe the report represents a worthwhile and commendable
effort. Please feel free to contact me if you have any questions
or further thoughts.
Yours truly,
Stanley Sporkin
Approved For Release 2011/08/12 : CIA-RDP05CO1629R000100030001-3
 Approved For Release 2011/08/12 : CIA-RDP05CO1629R000100030001-3
OVERSIGHT AND ACCOUNTABILITY OF THE U.S.
INTELLIGENCE AGENCIES: AN EVALUATION
Page 11
The report discusses the organizational system
of the staff of the SSCI, and characterizes the
activities of the SSCI staff as less coherent
than those of the HPSCI, at least in part
because of the "designee" system. Recent
changes in the SSCI leadership and staff have
lead to SSCI organizational changes that may
alter the current discussion on this topic.
The drafters may find useful to speak with
staff members and provide an updated discussion
on this issue.
Pages 11-12 The report in its discussion of the
establishment of a congressional oversight
system suggests wrongly that the intelligence
committees existed at the time of the enactment
of the Hughes-Ryan Amendment to the Foreign
Assistant Act of 1961, in December 1974. This
impression can be remedied by adding the words
"that exist today" at the end of the paragraph
at top of page 12.
Page 20
Page 28
Page 28
The report is incorrect in its characterization
of the role of the Attorney General with
respect to current approval mechanisms. I
suggest the drafters contact the Department of
Justice for an updated discussion of the
committees on which the Attorney General sits.
It is not entirely correct to say no question
has been raised about prior notification, as
the report states at the top of page 28. Over
the past year, there has been considerable
public discussion and some accusation--although
unjustifiable--that Congress was not informed
in advance by the Executive as provided in the
National Security Act.
The second full paragraph at page 28 should be
modified by deleting the reference to "dogged
ideological opposition." That language is
inflamatory, unnecessary and inappropriate.
Page 30 The discussion of congressional activities
relating to funding of the "contras" is
Approved For Release 2011/08/12 : CIA-RDP05CO1629R000100030001-3
 Approved For Release 2011/08/12 : CIA-RDP05C01629R000100030001-3
confusing. It is not clear whether the
citation to the Defense Appropriation Bill was
intended to refer to the bill for fiscal year
1985, or to 1984. In addition, the provision
seems to make no distinction between Senate and
House action that resulted in legislation, and
Senate and House action that ultimately did
not. Finally, the language discussed in the
approved Defense Appropriations Bill did not
contain language with respect to the
"overthrow" of the Sandinista government.
Instead, the language prohibited assistance,
direct or indirect, to military or paramilitary
activities in Nicaragua.
Page 34
Page 39
Page 53
It is incorrect to state that Executive Order
12333 "cuts back on the primacy of the DCI's
responsibility." A careful reading of the
Executive Order leads to the conclusion that
the DCI is equally if not more responsible for
ensuring the quality of intelligence product
than under the previous Executive Order.
The answer to question 3 on page 39 indicates
that 85% of the respondents agreed with the
statement that the provision of intelligence
should be an objective and nonpolitical
activity. That 15% obviously did not agree
with that statement is astonishing. I think
the limited number of the responses [only 28]
suggests the unreliability of a statistical
response in this questionnaire.
A related problem with the responses to the
questionnaire appears at page 53, where the
drafters have chosen to include a comment that
reflects a minority position, without including
any statement of the majority view. On this
question, 46% indicated that they believe there
are sufficient protections to insulate the
intelligence process from political bias, while
only 14% answered in the negative.
Nevertheless, the report includes only a
comment that indicates "politicization of the
intelligence system remains a critical
problem." The ensuing discussion suggests a
bias in the report itself that may not have
been intended. A similar problem occurs at
page 55 where 43% answered in the affirmative
and 57% answered in the negative on the need
Approved For Release 2011/08/12 : CIA-RDP05C01629R000100030001-3
 Approved For Release 2011/08/12 : CIA-RDP05CO1629R000100030001-3
for a joint intelligence committee. The
drafters, however, chose to include the comment
of one of the minority. It would be more
appropriate to summarize the views presented by
the respondents rather than simply to quote the
view of a respondent whose position was the
minority position. A similar problem occurs at
page 59 on whether the DCI should serve for a
fixed term.
Page 68
Page 70
The footnote at page 68 states that the
"principal of objectivity appears to receive
little emphasis at the current time in the
professional ethic of the Intelligence
Community". That statement is totally without
foundation, and no support for it is indicated
in the report. Either the drafters should
support such a bold statement with facts or
revise the provision in a way that makes it
clear that this is the sheerest of speculation
and conjecture.
The drafters on pages 70 and 71 engage in a
significant discussion on the likelihood of
success of covert action operations in the face
of congressional opposition and considerable
controversy. While it is valid to point out
that the ability to carry out covert operations
will be increasingly difficult as the nature of
those operations becomes public, the report
leaves the impression that covert action is
inappropriate solely because it may be
controversial, and that disclosure of an
activity ultimately will kill the program. It
weighs in favor of stopping the action rather
than changing the oversight system. This
realistically leaves the Executive Branch with
little or no alternative and fails to place any
of the blame on Congress. I do not believe
that the drafters intended this conclusion to
be drawn; thus, some revision appears to be in
order. This specific provision, as well as a
general tendency in the report to focus on
problems from the perspective of the Executive
Branch, while focussing less on the
deficiencies in congressional oversight, is a
serious flaw in the report.
Page 75-77 The discussion on the effectiveness of internal
oversight mechanisms places too much emphasis
Approved For Release 2011/08/12 : CIA-RDP05CO1629R000100030001-3
 Approved For Release 2011/08/12 : CIA-RDP05C01629R000100030001-3
on the role of the Offices of General Counsel
within the Intelligence Community. It fails to
recognize that activities that may be legal may
be unwise, and that even activities that are
both legal and wise may still raise significant
questions and arouse public controversy after
their implementation. Moreover, to cite the
MKULTRA program seems inappropriate without
further explanation. That activity occurred
before the current oversight mechanisms were in
place. The reference can be read as an attempt
to tarnish any activity that does not receive
attorney review because it conjures up a worst
case scenario. However, there is nothing that
gives lawyers the exclusive right to exercise
of good judgment, or permits only intelligence
officers to make errors in judgment. Oversight
need not and should not be performed only by
attorneys.
Page 77
The example cited on page 77 with respect to
the "assassination manual" further suggests
that the mere fact of controversy means that an
activity should have been reviewed by lawyers
in advance, and that the controversy resulted
from a reduction in the role of counsel in
reviewing ongoing covert action programs. That
is simply not the case. There is no indication
that any illegalities occurred, and it is
unfair of the drafters to imply that the mere
allegation of an illegality suggests that the
charges are valid, that lawyers should have
reviewed an activity, or that legal review
would necessarily have led to a different
result. With respect to the example cited, the
problem was acknowledged to be one of command
and control and did not relate to any reduction
of the role of counsel. I do not believe the
drafters really expect in-house legal counsel
to solve all such problems, but the report
leaves the impression that was the intent. I
think further editing is in order.
Moreover, since the preparation of this report,
at CIA the lawyers have played an increased
role in the review of certain ongoing covert
action programs. This is advisable and the
report is correct in counseling it, but it
should be noted that counsel cannot and should
not as a practical matter be so close to an
Approved For Release 2011/08/12 : CIA-RDP05C01629R000100030001-3
 Approved For Release 2011/08/12 : CIA-RDP05CO1629R000100030001-3
activity that they lose the objectivity so
necessary to ensure appropriate and effective
review.
Page 78
Page 81
The drafters have stated that CIA has (1) not
become a policy-making organization by default,
but (2) develops and advances its own
institutional views with respect to foreign
policy matters, and (3) has been politicized
because the Director is a friend of the
President. I think the drafters should beware
of making general and inconsistent statements
with little or no evidence to substantiate
them. The drafters cannot have it both ways.
Either CIA is developing its own views, or has
no objectivity because of the demands of the
Administration (see pages 68-69). A reasonable
interpretation of what the drafters have done
has been to attempt to criticize the Agency
regardless of its actions, in order to prove
the point that CIA has lost its objectivity.
That effort appears to be unwarranted and
unsubstantiated. If there is evidence that the
CIA either is politicized, or is establishing
independent views, that evidence ought to be
presented. Alternatively, the report should be
reviewed carefully from an editorial standpoint
to ensure a basic consistency and logic that
does not mislead the reader or lead to
unwarranted and unsupportable conclusions.
The drafters note that the respondents to the
questionnaire indicated that the existing
mechanisms of oversight and accountability were
adequate. This conclusion drawn by the
drafters appears to be somewhat slanted in that
just as many people concluded they had no
comment or did not know how to respond.
Approved For Release 2011/08/12 : CIA-RDP05CO1629R000100030001-3