RESTRICTIONS EXECUTIVE ORDER

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80M01066A000800260003-5
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 50
• Document Creation Date: December 16, 2016
• Document Release Date: October 9, 2004
• Sequence Number: 3
• Publication Date: December 17, 1975
• Content Type: MF

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December 17, 1975
MEMORANDUM FOR MEMBERS OF THE INTELLIGENCE
COORDINAT,,k1G GROUP
SUBJECT: RESTRIC,ONS EXECUTIVE ORDER
QQae Registry
Attached for your consideration are the following:
1. Draft decision memorandum which focuses on the out--
-standing substantive disagreements, based on October 28
draft order.
2. A revised restrictions Order which is an attempt to
stress the restrictions and narrow the exceptions.
(We tried the approach of separating the announcement
of restrictions from the exceptions but it is our
general view that this might mislead the public as to
the scope of the restrictions.)
3. Draft fact sheet explaining the draft Executive Order.
May we please have your comments on all three by noon,
December 19. In reviewing the new draft Order, consider
to what extent the substance of the preceding draft may
have been changed.
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DRAFT
MEMORANDUM TO:
SUBJECT: Draft Executive Order Imposing Restrictions-
on Intelligence Activities
Attached is the most recent draft of the Exexutive Order
imposing restrictions on intelligence activities other than
those of the FBI. Its primary provisions prohibit foreign
intelligence agencies (or any other agency engaged in foreign.
intelligence or counterintelligence activities) from:
- Collecting and analyzing information on the domestic
activities of U.S. citizens (arid certain aliens).
- Physically or electronically siirvei.lling U.S.
citizens (and certain aliens) within the United States.
- Opening U.S. mail in violation of law.
Strong substantive disagreements still exist among the
various concerned agencies and your advisers with respect
to some of its provisions. Most of the major disagreements
concern proposed exceptions to the general prohibitions.
The major issues for your decision are:
(1) Whether to include an exception which would allow
the collection, analysis, and dissemination of information
on the domestic activities of U.S. citizens reasonably believed
to be involved in international terrorist or narcotics
activities or working in collaboration with a foreign nation'
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or organization, but only if collected abroad, or from
foreign sources. (Section II (a)(2)(ii)). This exception
was proposed by CIA, to allow it to gather and utilize
information related to Americans involved in international
terrorist or narcotics activities and Americans who may not
have committed any crime but are working with foreign organiza-
tions or governments. The latter category would include an
American supplying non-classified information to a foreign
government, for example, on the movement of civilian ships from
a U.S. port.
Pro:
This exception recognizes that international terrorist
and narcotics activities are legitimate subjects of interest
for foreign intelligence agencies.
It recognizes that the domestic activities of Americans
working for foreign governments or organizations are of
counter-intelligence interest.
It contains the limitation that the excepted
information must have been collected abroad or from foreign
sources. Often foreign intelligence agencies are the only
elements of our government who can obtain information from
these useful sources.
The exception is too broad. Any person who deals
with foreign corporations would be covered.
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The CIA, prohibited by statute from having any "police,
subpoena, [or] law-enforcement powers," should not become in-
volved in identifying Americans participating in narcotics
or terrorist activities.
Decision:
Accept (Recommended by:
Reject (Recommended by;_
more limited exception covering only
citizens engaged in international terrorist or
narcotics activities or working for a foreign
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nation.A (Recommended by:
(2) Whether to adopt an exception
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which would permit
sharing of information on domestic activities of U.S. citizens
among intelligence agencies and other federal agencies under
guidelines of the Attorney General. (Section II (a)(2)(v)).
This exception, proposed by NSC, is designed to permit the
-CIA to obtain information from other federal agencies
(primarily the FBI) on the domestic activities of U.S. citizens
which it would not otherwise be permitted to collect under this
order.
This exception would give CIA and other foreign
intelligence agencies access to data helpful in determining
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whether various domestic groups have contacts with foreign
governments or organizations.
- Possible abuses of this exception would be limited
by the Attorney General's guidelines.
It would allow intelligence agencies to receive data
from federal law enforcement agencies on the domestic activities
of U.S. citizens which the intelligence agencies themselves
would otherwise be prohibited from collecting under the terms
of this Order.
- It would authorize the reestablishment of Operation
informatic
CHAOS. (CHAOS was the program under which CIA collected/--
largely from the FBI -- on domestic groups and U.S. citizens.)
The exposure of this program resulted in the forming of the
Rockefeller Commission and the Congressional Intelligence Com-
mittees.
Such an exception would likely undermine the credibility
Decision:
Accept (Recommended by:
Reject (Recommended by: )
Accept a modified provision allowing agencies to
share information on the domestic activities of
U.S. citizens only when the information is of the
type that the receiving agency would have been per-
mitted to collect itself under the terms of this
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Order. (Recommended by: )
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(3) Whether to modify the provision relating to
electronic surveillance. (Section II (d)) The section
now.prohibits "electronic surveillance of United States
citizens except in. accordance with law and under procedures
approved by the Attorney General." The Justice Department
would add to this a blanket prohibition against domestic
.electronic surveillance by the CIA. The discussion below is
on this proposed amendment:
As presently written, this provision merely requires
compliance. with existing law (which is unclear in this area)
and procedures to be drafted by the Attorney General.
- The Rockefeller Commission recommends a blanket
prohibition (similar to the Justice Department recommendation)
of domestic electronic surveillance by the CIA.
The CIA feels that such a restriction would not
impact its effectiveness. It now conducts no domestic
electronic surveillance.
If the restriction is adopted, the CIA would be
completely foreclosed from dealing with an unusual situation
requiring domestic electronic surveillance of a U.S. citizen-
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Decision
Accept (Recommended by.-
(Recommended by:
)Reject
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DRAFT: December 15, 1975
ESTABLISHING RESTRICTIONS ON FOREIGN
INTELLIGENCE ACTIVITIES
Previous guidance on the relationship between the intelligence agencies
and United States citizens was unclear. This order clarifies that
relationship by detailing, those activities which are prohibited.. Without
setting forth all restrictions under which foreign intelligence ager.eces
are obliged to operate, nor derogating from any other laws, rules,
regulations, or directives further restricting the activities of these
agencies, it is hereby ordered as follows:
SECTION I. Definitions. As used in this Order the following terrns
shall have the meanings ascribed to them below:
) "Collection" means the gathering and storage, or the
gathering and forwarding, of information.
(b) "Domestic activities" means activities within the
United States.
(c) "Foreign intelligence" means information, other than
foreign counterintelligence, on the capabilities, intentions, and
activities of foreign powers, organizations or their agents.
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(d) "United States citizens" means United States citizens
and permanent resident aliens.
(e) "Foreign counterintelligence" means activities conducted
to protect the United States and United States citizens from foreign
espionage, sabotage, subversion, assassination, or terrorism...
(f)
'Incidental receptions' means the receipt of information,
collection of which by an agency is otherwise prohibited by this order,
and which is collected in the course of an agency's authorized for eign,.
intelligence or counterintelligence activities.
(g) "Foreign intelligence agency" means any department or
agency of the United States government, or component thereof, which is
primarily engaged in foreign intelligence or foreign counterintelligence
activities.
SECTION H. The following activities shall not be conducted either by any
foreign intelligence agency or by any other department or agency in
pursuit of foreign intelligence or foreign counterintelligence:
(a) Physical surveillance of United States citizens except to
the extent that such surveillance is in accordance with law and is:
(1) Upon written approval by the head of the foreign
.s u r ve 1(4 nG
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intelligence department or agency; of individuals currently or formerly
employed by that agency, its present or former contractors, or such
contractors' employees, for the purpose of protecting foreign intelligence
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(2) Of a person having contact with any persons described
under subparagraph (1), or foreign nationals in the United States in
connection with foreign intelligence or counterintelligence operations,
but only to the extent necessary to identify such person.
(b) Electronic surveillance of United States citizens except in.
accordance with law and under procedures approved by the Attorney
General, and in no instance shall the Central Intelligence Agency engage
within the United States in the electronic surveillance of United States
citizens.
(c) Testing of electronic surveillance equipment within the
United States except in accordance with law and under procedures
approved by the Attorney General.
(d) Any opening of United States mail or examination of envelopes
except in accordance with the provisions of United States postal laws and
regulations.
(e) Access to Federal income tax returns or tax information
except in accordance with statutes and regulations.
(f) Infiltration or secret participation in any organization
composed primarily of United States citizens for the purpose of
reporting on its activities or membership.
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(g) Experimentation with drugs on human subjects, except
with the informed consent of each such human subject and in accordance
with the guidelines of the National Commission for the Protection of
Human Subjects for Biomedical and Behavorial Research.
(h) Operation of a proprietary company on a commercially
competitive basis with United States businesses except to the minimum
extent necessary to establish commercial credibility. No investments
by a proprietary company shall be made on the basis of any substantive
intelligence not available to the public.
(i) Collection, evaluation, correlation or analysis, of infor-
mation other than information from public sources or given voluntarily
by its subject concerning the domestic acitvities of United States citizens
except:
(1) Information about a United States citizen who ia-geed-``
faith'is reasonably believed to be involved in international terrorist or
narcotics acitvities or working in collaboration with a foreign nation or
organization, but only if the information is collected abroad or from
foreign sources in the United States in the course of an authorized foreign
intelligence or foreign counterintelligence activity.
(2) Information related to the performance of agency
contractors, for purposes of contract administration.
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(3) Information concerning criminal activities received
through incidental reception, provided it is only transmitted to law
enforcement agencies with appropriate jurisdiction..
SECTION III. Any federal agency seeking foreign intelligence within
the United States from. United States citizens shall disclose to such
citizens its true identity. When collection of foreign intelligence
within the United States results in the incidental reception of information
from unknowing United States citizens, however, the receiving agency
shall be permitted to make appropriate use of such information.
SECTION IV. No information on the domestic activities of United States
citizens shall be transmitted to a foreign intelligence agency (or to any
other federal agency to aid it in engaging in foreign intelligence or
foreign counterintelligence)from any other federal agency unless:
(a) The information. had been lawfully compiled by the
transmitting agency in furtherance of its authorized mission;
(b) The information is of a type which the receiving agency
would itself have been permitted to collect under the. provisions of this
order;
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(c) The information is provided in furtherance of the authorized
mission and responsibilities of the receiving agency;
(d) The information is provided in go=d faith under, a
reasonable belief that the information is relevant to the receiving
agency; and
(e) The information is provided, under guidelines and
procedures issued by the Attorney General designed to ensure the
protection of the constitutional and statutory rights of United States;
citizens.
SECTION V. Nothing in this Order prohibits an agency from retaining
information when retention is required by law, such as retention required
to preserve evidence or other information for po;sible court action.
SECTION VI. No foreign intelligence agency shall.
(a) Provide services equipment, personnel or facilities
to the Law Enforcement Assistance Administration or state or local
police organizations of the United States except as expressly authorized
by law; or
(b) Participate in or fund any law enforcement activity within
the United States except as may be authorized by law.
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Provided, that this prohibition shall not preclude."
(1) Cooperation between a foreign intelligence agency
and appropriate law enforcement agencies for the purpose of protecting
the personnel and facilities of the foreign intelligence agency of
preventing espionage or other criminal activity related to foreign
intelligence or foreign counterintelligence; or
(2) Provision of specialized equipment or technical
knowledge for use by any other Federal department or agency.
SECTION VII. Foreign intelligence agency personnel may not be detailed
elsewhere within the Federal government except as authorized by law.
Employees so detailed shall be responsible to the host agency and shall not
report to their parent agency on the affairs of the host agency except
as may be directed by the host agency. The head of the host agency and any
subsequent successor shall be informed of the detailee's association
with the parent agency.
SECTION VIII. Nothing in this Order shall prohibit any agency having
law enforcement responsibilities from discharging such responsibilities
pursuant to law. Nor shall this Order apply to any activities of the Federal
Bureau of Investigation.
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SECTION IX. Nothing in this Order shall prohibit any agency from
engaging in the collection, evaluation, correlation and analysis of
information on current or former employees (including military personne).
and employees of other Federal departments or agencies detailed for service
with the foreign intelligence agency); applicants for employment with such
agency; voluntary sources or contacts or individuals. who in good faith
are reasonably believed to be potential sources or contacts; cu.ni ent and
former contractors and current or former employees or applicants for
employment by such contractors; and all persons not included above who must
be given access to classified information which could disclose foreign
intelligence or foreign counterintelligence sources and methods; provided,
however, that collection of such information is done only in accordance
with law and by written authority from the head of such agency to determine
the fitness of such persons to become or remain associated with such
agency or to have such access, or in the case of a former employee to
investigate matters related to his period of employment, or in the case
of a voluntary source or contact, to determine suitability or credibility.
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FACT SHEET
EXECUTIVE ORDER IMPOSING RESTRICTIONS
ON FOREIGN INTELLIGENCE ACTIVITIES
Today the President issued an executive order setting forth
certain restrictions on the activities of foreign intelligence
agencies and other agencies which may engage in intelligence
activities. It severely restricts the following activities:
- Collection and analysis of information on the domestic
activities of United States citizens and permanent resident
aliens.
Physical or electronic surveillance of United States
citizens and permanent resident aliens-within the United States.
- Opening of United States mail in violation of law.
Illegally obtaining federal income tax returns or
information.
- Infiltration of domestic groups for the purpose of
reporting on them.
- Experimentation with drugs on humans without the
subject's informed consent.
- Operation of a proprietary company which competes with
United States businesses more than the minimum amount necessary
to establish commercial credibility.
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- Collection of intelligence from United States citizens
and permanent resident aliens within the United States without
disclosing the true identity of the collecting agency.
Sharing among agencies information on the domestic
activities of United States citizens or permanent resident
aliens except in compliance with stringent safeguards.
Providing assistance to law-enforcement agencies in
violation of law.
Certain limited exceptions are included to the general pro'
hibition of collection of information on. the domestic
activities of United States citizens. These exceptions seek
to recognize all legitimate needs of foreign intellicence
agencies to collect information on the domestic activities
of United States citizens.
In order to protect classified information, intelligence
agencies must run security checks on applicants for employment
and employees. Like any Government agency, these agencies
must also check out employee backgrounds to ascertain their
job suitability. Even after a person has left an intelligence
agency, it has a legitimate need to maintain its records on
that person should a security breach stemming from his employment
occur. Similarly, each intelligence agency has an interest in
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the suitability and security worthiness of persons who
contract with it or are employees of its contractors working
on its projects and requiring access to classified information.
Each intelligence agency must also maintain records on persons
who, without necessarily being employed by it, are given access
to its classified information. Such persons would include
employees of other Government agencies who require access to
its classified information and private citizens who voluntarily
agree to be cleared to receive classified information in order
to aid in their voluntary reporting of foreign intelligence
information to the agency.
Foreign intelligence agencies or other foreign groups spend
many resources seeking to penetrate (i.e., obtain information
from) United States intelligence agencies. The United States
agencies need to protect themselves from such activities.
Such activities may involve domestic activities of United
States citizens. Because United States intelligence agencies
have a need to understand the operating modes of foreign
intelligence agencies, there is a legitimate need for it to
collect and use such information. However, the intelligence
agencies are permitted to collect this type of information
only abroad or from foreign services, since the FBI is fully
capable of collecting such information from purely domestic
sources. Also, because of the unique contacts of, our foreign
intelligence agencies with information sources abroad and
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foreign sources within the United States, these agencies
are also permitted to collect, but only from these special
sources, information on United States citizens reasonably
believed to be involved in international terrorist or
narcotics activities.
In normal day-to-day business, many Americans work with
intelligence agencies and tell its employees about their
domestic activities; i.e., other Government employees meet
with intelligence agency employees; academics share informa-
tion with them; Americans who travel talk to them. In order
to allow these agencies to maintain records of such day-to-day
transactions, the order makes an appropriate exception.
Americans who enter into such contact with intelligence
agencies, however, should not therefore be subjected to
secruity investigations or other scrutiny merely because they
came into contact with an employee of an. intelligence agency.
Therefore, this exception only allows use of that information
voluntarily supplied by the persons themselves.
The order requires that the information collected or stored
under these exceptions be confined to a type appropriate to the
purpose for which the correspondeing exception was created.
For example, an agency may not collect or store information on
the political views of a United States citizen merely because
he is a contractor employee working on an agency project. -
The order also allows intelligence agencies to transmit to
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law-enforcement agencies information relating to criminal
domestic activities of United States citizens which it happens
to obtain incidentally to its proper foreign intelligence
activities. All citizens and Government agencies have an
obligation to turn information related to criminal activity
over to appropriate authorities.
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 #X3CU,ive
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MORNING MEETING PARTICIPANTS
SUBJECT: Restrictions Executive
Order
Please give your comments
on the Draft Executive Order
to Mr. Scott Breckinridge
of the review staff.
Special Counsel to the Director
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 12 December 1975
To: Morning Meeting Participants
STAT From:
The attached was produced
at the White House. Comments
please.
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jExecutive Registry
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I. PRINCIPLES AND POLICY
A) Goals
B) Functions and product
C) Limits and restrictions
II. LEGISLATIVE AND ADMINISTRATIVE POSITIONS
A) Organization and management
1. Overall direction
2. Organization of community
3. Budgets
4. Program management
5. Intelligence product
Oversight
1. Executive
2. Congressional
3. Public
C) Secrecy
1. Classification
2. Scope
3. Legal issues
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DRAFT
10 Dec 1975 Information Memorandum
ANALYSIS OF ISSUES
I. PRINCIPLES AND POLICY
A. Goals
There is widespread agreement with the statement that the
intelligence gathering activities of the United States should provide for
national defense needs and should assist achieving foreign policy
objectives. In the words of the Murphy Commission Report "the
maintenance of intelligence capabilities of the highest competence is
essential to the national security and to the effective conduct of U. S.
foreign policy. " Similarly, the Rockefeller Commission concluded:
"During the period of the Commission's inquiry, there have been
public allegations that a democracy does not need an intelligence
apparatus. The Commission does not share this view. Intelligence is
information gathered for policy makers in government which illuminates
the ranges and choices available to them and enables them to exercise
judgment. " The public agrees; by a 78 to 12o%o majority, it believes "it
is very important that the United States have the best foreign intelligence
agency in the world, even if it does make some mistakes. "
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There are specific goals which must be met:
We must be able to predict "Pearl Harbors"-with sufficient
time to anticipate and react.
The government must be able to identify and assess the
threats to the United States from whatever source they may
come.
? There is clearly a need for timely military intelligence
provided to the military command during times of war and in
preparing to meet military threats.
The intelligence community must be able to prevent the
loss of the effectiveness of our national defense and the
intelligence resources through loss of secrecy.
We should assist friendly governments and allies to meet their
own national defense needs through intelligence resources.
The understanding of issues, plans and developments and.
personalties of world leaders is important for policy making.
We must meet the economic, commercial and even natural
resource intelligence needs.
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The most controversial area is the degree to which the
United States should take actions or assist in actions which have the effect
of hindering unfriendly governments and adversaries. The types of action
which can be taken are numerous, ranging from the merely inconvenience
to the extreme acts of assassination, paramilitary operations, and covert
actions such as sabotage. Your directives to the community with regard
to extreme actions such as assassination are clear, but other areas along
the spectrum of activities have not yet been defined.
In elaborating the problem of organization of the intelligence
community, the Murphy Commission identified three standards of
performance:
(a) It must respond to the evolving needs of national security
and foreign policy decision makers: its estimates and
analyses must address the issues of real concern, and do
so at high levels of competence and integrity.
(b) Economy. Intelligence is a necessity, and some forms of
intelligence gathering are extraordinarily expensive. Where
unavoidable, such costs must be borne, where necessary
they must be avoided.
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(c) The U. S. Intelligence Community must operate in such a
manner as to command public confidence.
The community must maintain foreign respect for its intelligence
resources and capabilities. The community must also have the resources
to develop new technologies, skills and capabilities.
B. Functions and Product
1. Intelligence Collection
There seems to be little disagreement that the community
should continue to collect intelligence from foreign sources, both governmental
and private, using human and technical means . The degree to which the
foreign service and overt sources are used or can be used for collection to
limit the activities of clandestine services is a matter you should address.
There is also the related issue of collecting information from private
organizations such as banks, companies and cooperatives. The very
expensive technical means of collection (satellites, electronics and under-
water sensors used to intercept messages and locate various foreign
sources such as radar screens, missiles emmissions, missile-related
telemetry, and other electronic sources, as well as straight photographic
image reconnaissance) are examined continually through the budget process
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and the normal coordination mechanisms within the community itself.
There is, however, a feeling that coordination, particularly on budget
preparation, will become more important as we intend to rely more on
these technical means. The 1971 Schlesinger and PFIAB studies (reported
earlier) saw this question as primary, and the Nixon November '71 order
(which you have reaffirmed) attempted to strengthen the coordination
mechanisms under the leadership of the Director of Central Intelligence.
There remains, however, a question as to the effectiveness of these
Domestic collection activities by the community have been
examined intensely in the past year by the Rockefeller Commission, the
Select Committees and the Attorney General. These include entry to
foreign embassies in the United States, electronic eavesdropping both by the
FBI and by other agencies, mail opening, surveillence, etc. The Attorney
General is in the process of formulating guidelines for FBI behavior. There
is also under review within the Executive an Executive Order more broadly
stating restrictions on certain types of activities. This area is being dealt
with now, but only in bits and pieces. It is advisable to state clearly
Administration policy in response to the findings of these various
investigations.
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2. Analysis and Intelligence Production
There is little disagreement that the intelligence community
should continue to analyze and produce finished intelligence for a variety
of users. In the traditional view, the highest form of intelligence is
"national intelligence" produced for the President and his advisers,
including Cabinet Officers. This is augmented by a continual flow of
routine intelligence reports and special studies of somewhat greater
relevance to senior analysts, such as those on the National Security
Council staff.
The military command specifies, through the services, the
Joint Chiefs and DIA, its own requirements. This leads to a separate
conception of "tactical intelligence": knowing where the enemy is and what
strength is immediately opposing a field commander. The distinction
between tactical and national intelligence is blurred, depending on questions
of definition to a large extent.
There is a third generalized area of intelligence meeting
specialized governmental needs, such as those of economic policy-making.
Economic users can be found in most every Department and their interests
range from the central questions, such as the pricing intentions of the OPEC
countries, to the more routine reporting of ordinary commercial transactions
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between, say, Eastern Europe and third world countries. In recent years,
economic issues have become increasingly important and thus intelligence .
has been in great demand in the Departments. A problem remains,
however, as to determining how much of the intelligence communities
resources should be devoted to economic and other specialized issues;
to put it another way, would we maintain the CIA and the National Security
Agency merely to collect economic intelligence? To what degree are
additional resources employed for collecting this information-, and how good
is it?
3. Paramilitary and Covert Action
Perhaps the most troublesome area in the Congressional
investigations and the public press has been the conduct of paramilitary
and covert operations. At one extreme there is stated the opinion that
these actions are not only necessary but desirable as a part of our foreign
policy. At the other extreme are the assertions that such activities should
not only be banned domestically and overseas against enemies, but under
any circumstances and at all times. The birth of OSS and the CIA
through
reflected a fascination with these activities, carrying /Iran, Cuba and Laos;
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this is not today considered appropriate. Specific types of covert action,
such as assassination attempts, have been subjected to minute scrutiny and
your instructions to the intelligence community - that you find these
actions abhorrent - are clear on this subject. Further, it is unlikely
that large-scale paramilitary operations (of the kind planned for Cuba
and carried out in Laos) could be conducted today without public
exposure and direct attribution to the President. Enough is now known
about the process of mounting such operations that any objector could
assert a plausible linkage to the Presidency.
4. Counterintelligence
Dating from a general understanding between the CIA and the
FBI after World War II and the terms of the National Security Act of 1947,
the FBI has had no overseas intelligence or counterintelligence responsibilities.
The CIA has had no domestic responsibilities beyond protection of its own
facilities, operations and personnel; these were explicitly recognized
by the Rockefeller Commission. The conception becomes blurred in specific
cases. To what extent, for example, should the Director of Central
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Intelligence be allowed to use resources directly under his control
(the CIA) to carry out his statutory-required responsibility of
protecting intelligence sources and methods? To the extent he conducts
surveillance of U. S. citizens in the United States is he either infringing
on their rights or transgressing on the responsibilities of the FBI? It is
recognized that in the community that some clarification of responsibilities
and authority in this area is required as well as better guidelines for
the FBI's own activities.
C. Limits and Restrictions
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II. LEGISLATIVE AND ADMINISTRATIVE POSITIONS
As a result of the Murphy and Rockefeller Commission reports,
a plethora of books and articles on the community, two major
Congressional investigations, you will be asked to take positions
on a number of specific legislative and administrative issues dealing with:
Organization and Management - the proper organizational
structures and authorities required to manage resources,
including personnel, materiel, budgets, and intelligence
product. From an examination of the experience under the
Nov. 1971 Presidential Directive, the missions of the
intelligence community, and the existing structure, it is
clear that improvements can be made.
Oversight of the Intelligence Community - much of the
Congressional interest and the public concern focus on the
question of appropriate oversight by those outside the
Community, - legal advisers and Inspectors General within
the intelligence agencies, the President, Presidential agents,
committees within the Executive Office, others in the Executive
Branch, Congressional Committees, the General Accounting
Office and perhaps completely independent public bodies.
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Secrecy and its protection - there is concern about the basis
for and misuse of the classification system, the powers and
sanctions of those charged with protecting classified
information, the special problems of those protecting intelligence
sources and methods, and the relationship of all of these
questions to other developing standards of law with regard
to the rights of individuals.
A. Organization and Management
1. Overall Direction
The President necessarily must accept responsibility for
the activities of the intelligence community; "plausible deniability" is no
longer possible as a result of numerous revelations and admissions. In
delegating that responsibility, you must assure:
? accomplishment of particular missions is essential,
primarily a matter internal to the intelligence community;
? effectiveness of intelligence and its usefulness to policy-makers,
the consumers of intelligence;
? compliance with laws and standards which are established
primarily by those outside the intelligence community.
By Presidential Directive in November 5, 1971, the leadership of the
community was vested in the Director of Central Intelligence. Although
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he chairs the community's coordinating committees, the leadership role
has not been spelled out in detail nor made effective through other
administrative changes.
2. Organization of the Community
Of critical importance to the management of the community
(and being examined in detail by the NSC/OMB study group) is the question
of the appropriate organizational structure to deal with these issues. Central
to that consideration is the continuing validity of the leadership role of the
DCI. Various alternatives to the organizational structure are being examined
from a highly centralized structure (which would include the CIA and the
Defense Department Intelligence. Components in one new agency) to even
more decentralized services than today. Various criteria can be used to
judge the effectiveness of various solutions, such as effectiveness,
degree of control provided, etc.
3. Budgets
A more specific form of resourse management comes
through the budget. Since the budget controls dollars directly, it controls
indirectly programs, manpower and materiel. The effectiveness of
previous budgetary decisi-)ns is evaluated, first, in the agencies,
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and second, in the Office of Management and Budget (with some assistance
from the Director of Central Intelligence). While the DCI does have
impact on decision-making by the agencies, and thus can affect budget
submissions to the Executive Office, he has little or no role in the decision-
making process within the Executive Office.
A related issue is budget presentation, disclosure and public
release. At the present time, intelligence budgets are contained within other
budget line items, primarily within the Defense Department. There is,
however, a great deal of misinformation circulating about the amount spent
on intelligence, and arguments for its continued secrecy are being
reexamined.
4. Program Management
There has been little public examination of intelligence program
management. Some review of program management is conducted through
the Office of Management and Budget and the DCI's intelligence community
staff. (The President's Foreign Intelligence Advisory Board conducts ad hoc
studies on particular issues.) These program management reviews must
have continued and strengthened access to program data, the mechanisms and
tools for analysis and evaluation, and means to exercise control. If, for
example, the Director of Central Intelligence is to be given a leadership
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role, then some consideration must be given to his ability to control
budgets and programs as well to maintain and improve quality.
5. Intelligence Product
The last element which must be considered in management
is the dissemination of intelligence product within the community, to the
users, to the Congress and to the public. On the one hand, it is unobjectionable
that more product should be made publicly available. On the other hand, there
are extremely sensitive items which cannot and should not be known outside
very small circles. The present classification systems represent one way
to strike a balance between these competing concerns, but one may ask the
broader question of who makes future decisions, and how are specific cases
dealt with to build public confidence.
B. Oversight
1. Executive
One of the findings emerging from the Rockefeller Report
was the need for increased oversight both by Congress and the Executive
Office. We can expect similar findings from the Senate and House
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Select Committees. There seems to be no question that the public has
already concluded that increased oversight is necessary: in September
1975, Harris found 41% of those surveyed believe the trouble with the
CIA is that it got out of control of civilian authority" (with 21% disagreeing)
and that 66% believe "in the future, the CIA must be monitored more
closely by Congress and the White House" (18% disagreeing). Thus the
question of accountability to the public, the Congress and to civilian
authority is posed, and the issue is to what degree will the Administration
respond.
The Rockefeller Commission examined the degree to which
"internal" controls (within the CIA) can be strengthened. It noted
problems the legal advisers and the Inspectors General have affecting
CIA operations, and it proposed changes which have been implemented
by CIA. Similar problems could be found, no doubt, in other Departments
outside the Rockefeller Commission's scope of examination.
There is a concern that civilian control has not been
properly exercised within the Executive Branch. It may be that visible
and fundamental improvements will have to be made to strengthen the
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authority of Presidential agents, Committees, and non-participating
departments, such as the Justice Department, in overseeing intelligence
community operations. The PFIAB is already' charged with oversight
responsibilities and these have been strengthened in the proposed
Executive Order now before you.
2. Congressional
The area of greatest concern will be the degree to which
Congress oversees the community and participates in making decisions
about its activities, ranging from approval of specific covert operations
(as proposed by some select Committee staff) to a more generalized
oversight through periodic reporting. The number and jurisdictions of
committees is also being considered. A parallel issue is the degree to
which the General Accounting Office becomes involved in examining CIA
activities, a function it has not had since the early 1960's.
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3. Public
Lastly, the role of the press and the interested public in
understanding and appraising community activities is inextricably mixed
with questions of secrecy dealt with in the following section. With the
passage of the Freedom of Information Act, the Privacy Act, and a
general opening up of intelligence activities to public scrutiny, there
may be less concern today for access (even though such access poses
significant security and workload problems for the community). Yet
confidence cannot be maintained without some appreciation for the
public's right to know. Some balance must be worked out, perhaps
to be addressed publicly by the President.
C. Secrecy
1. Classification
The public accepts the need for secrecy; the Harris Survey
showed that a majority (71%) feels that "any successful foreign intelligence
agency must be operated in secrecy" (13% disagreed). Classification
was not directly addressed in the Rockefeller Commission Report. The
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Murphy Commission recommended certain improvements, including a
statutory basis for classification. It is, however, an issue which has been
of long-standing interest to critics of the intelligence community and more
recently an issue of operational significance to the Select Committees of
the House and Senate. But the public is worried (52% to 28%) that "so
many secrets of the CIA have been made public that the future ability of
the CIA to operate well has now been threatened. "
The existing basis for classification (Executive Order No.
11652 issued by President Nixon on March 10, 1972) is criticized both within
and outside the Executive. There is some feeling that the Executive Order
still makes too many documents subject to the security classification
and the definitions have proved to be essentially unworkable. Suggestions
are made from time to time that Congress enact classification system.
The community feels the existing system of "compartmentation" (special
clearances giving access to information only on a need to know basis)
poses operational problems. Whatever mechanisms are used, however,
there must be some continuing attention given to the standards of the
classification.
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2. Scope
A second issue arises as to the scope of protection to be
given to that information. The criminal law reform pending Bill S. 1
would establish new standards and penalties, but these are proving
controversial. A separate but closely related issue is the extent of
protection of intelligence sources and methods. The National Security
Act of 1947 vests the responsibility for such protection in the
Director of Central Intelligence, but does not provide him any authority
or sanctions, except over CIA employees in a limited fashion. Whether
specific legislation is required to protect sources and methods is
being examined by your Intelligence Coordinating Group.
3. Legal Issues
Finally, the question of secrecy can not be considered out of the
Constitutional context in which it most often arises - disputes with
Congress and the Courts over Executive Privilege and legal determinations
on the relevance of the Fourth Amendment. Executive Privilege
disputes are not now effectively resolved except through negotiation.
Courts are increasingly interested in examining the reasons for
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classification of information and the necessity for intelligence activities,
particularly where individual liberties and civil rights may be infringed.
The Rockefeller Commission devoted considerable attention to this
series of problems and its recommendations are now being reviewed by
all Executive Agencies for appropriate solution.
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OFFICE OF THE DIRECTOR
10 December 1975
The Morning Meeting Group.
The attached, prepared by
is a draft charter
tor a Legislative Group. Presumably,
it p-cks up where the OMB/NSC group
leaves off.
wants our comments
on this proposed charter. Your
comments should be forwarded to
me by close of business 12/11.
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ICG'S LEGISLATIVE GROUP
Steering Group:
Working Group: Ron Carr, justice (Chairman)
CIA
State
Defense
Mason Cargill, ICG
NSC (?)
OMB (?)
I. Broad Areas of Interest
A) General Constitutional, legal and ethical issues
involved in foreign intelligence operations.
Separation of Powers
Individual rights (e.g., privacy)
Treaties and other forms of international law
Domestic jurisdiction of CIA, DOD
B) Secrecy, protection of sources and methods, etc.
C) Domestic intelligence, which is not for foreign intelli-
gence or prosecutorial reasons.
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II. Preliminary List of Specific Tasks
1) Research papers (compilation. of existing opinions,
analysis of law, etc.)
? Separation of powers viz Congressional oversight
? Legality of covert action
e.g., consistency with treaty obligations and F.S.
law.
? Individual. rights (see Levi testimony and Rockefeller
Report).
? Constitutional requirement for public intelligence
budget.
? Applicability of Freedom of Information and Privacy
Acts on foreign intelligence.
2) Legislative Issue Papers
? Statutory charters for: NSA, DIA, others(?)
Domestic jurisdiction of: FBI, CIA, DOD
? Secrecy and protection of sources and methods
3) Catalog areas where legislative or administrative
action may be needed (see draft attached - Tab A).
4) Develop decision papers.
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Problem areas by function (1) Collection of intelligence information -- 4th amend.,
privacy problems -- What sorts of protections are
needed to ensure that U.S. citizen's/resident's
privacy is not unduly invaded by intelligence gather-
ing techniques?
(A) abroad
(B) in U.S. -- warrants
(2) Dissemination and use of intelligence information --
What sorts of protections are needed to ensure that
information gathered, abroad and in U.S., is employed
solely for legitimate governmental purposes,-to pre-
vent abuse for partisan or otherwise illegitimate
reasons?.
(3) Covert operations -- What sorts of protections are
needed to ensure that covert operations are both neces-
sary to legitimate governmental interests and ethically
responsible?
(A) with respect to foreign governments, organizations,
activities;
(B) in U.S.
Problem areas of organization --
(1) Division of function, for foreign intelligence gather-
ing and operations, between Defense/CIA and FBI.
(2) Division of function between foreign intelligence
gathering/counterintelligence and domestic law enforce-
ment -- is it possible or wise?
Problems of protection/accountability --
(1) What sanctions or other devices are necessary to
ensure that confidential materials will not be dis-
closed by individuals -- officials or others -- without
authorization?
(2) What sorts of changes in responsibility for and structure
of classification system to identify materials that
must remain confidential, and only those? Who should
formulate/apply standards?
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(3) To what extent and to whom can intelligence budgets
be disclosed without endangering functions?
(4) What form and degree of Congressional oversight and
review is both consistent with Congress' constitu--
tional responsibility and the integrity of the
Executive, and, at the same time, not injurious
vital intelligence functions?
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