CHARTER LEGISLATION - - PROPOSED ADMINISTRATION POSITION CONCERNNG COLLECTION OF POSITIVE FOREIGN INTELLIGENCE FROM U.S. PERSONS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81B00401R001400170001-1
• Release Decision: RIPPUB
• Original Classification: S
• Document Page Count: 16
• Document Creation Date: December 19, 2016
• Document Release Date: September 13, 2005
• Sequence Number: 1
• Publication Date: May 14, 1979
• Content Type: MF

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OGC 79-04478
14 May 1979
MEMORANDUM FOR: Director of Central Intelligence
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Deputy Director of Central Intelligence
25X1 THROUGH
ding Generai ounse
25X1 FROM
SUBJECT , Charter Legislation--Proposed Administration
Position Concerning Collection of Positive
Foreign Intelligence from U.S. Persons
1. Action Requested: It is requested you review and
consider this memorandum, which Tony Lapham agreed to provide
you, prior to determining whether to present your views on
the proposed charter authority to collect foreign intelligence
from U.S. persons to the SCC at its 15 May meeting on
.r..?'' intelligence charter legislation.
2. Background: You have expressed personal concern
and discomfort on several occasions as to the advisability
of and justification for the position approved by both the
SCC and the President regarding charter legislation authority
to collect foreign intelligence from U.S. persons. You and
Tony Lapham discussed this concern during your luncheon
meeting with him on 8 May, his last day at the Agency, and
he promised to furnish you with a paper repeating and
elaborating upon the matters addressed during that con-
versation. This paper attempts to explain in summary
fashion what the Administration position is, how it came to
be adopted, what may and has been said for and against it,
and what course you should consider following at the 15 May
SCC meeting if you continue to have strong concerns in this
regard.
I. The Administration Position
3. Under the proposal approved by both the SCC and the
President and furnished to the SSCI, intrusive collection
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techniques (i.e., electronic surveillance and pjLyZic~Ll
earth would be available to collect foreign intelligence
from U.S. persons outside the U.S. based essentially upon a
determination that theinforma on sought has ,special value
to the U.S. from a nat l security. standpol-n A cou'r't'
order from the Special Court created under the Foreign
Intelligence Surveillance Act w. ham rcqutred in each case
and would be based on a judicial finding that, in summary:
a. A senior official has certified the foreign
intelligence sought is of a type determined by
the NSC to be essential to the conductof IT- .
foreign relatlQng or protection of U.S. national
security, and such information is likely to be
obtained through the use of the technique as
proposed.
b. There is probable cause to believe the target
is in possession of such information.
c. Less intrusive techniques are inadequate.
d. Appropriate minimization procedures will be
applied to the information obtained.
Based on these findings, the court could authorize electronic
N?rl surveillance of a U.S. person abroad for up to 90 days (with
extension available on the same basis), or ]Le' physical
search directed against U.S. persons or their property
(including mail) abroad. There is provision for an Attorney
General gert; fi rat i un to be substituted for the element- off"-'
tFie court rt finding described in subsection b. above, where
disclosure of the information necessary to support that
element would confirm the existence of a cooperative or
liaison relationship with any nre'gn government or component.
4. Obtaining foreign intelligence from U.S. persons by
means of "placing employees" in any organization in the
U.S., or substantially composed of U.S. persons outside the
U.S., without disclosure of intelligence affiliation would
require approval of the Att--orney General based on a finding
that:
A senior official has certified-the foreign
intelligence sought is of a type determined by the
NSC to be essential to the conduct of U.S. foreign
relations or protection of U.S. national security.
There is probable cause to believe such information
is likely to be obtained through the proposed
activity.
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c. Less intrusive techniques are inadequate.
d. Appropriate minimization procedures will be applied
to the information obtained.
e. The activity will not exceed 90 days (with extensions
available on the same basis).
f. The activity is not initiated to interfere with
the exercise of legal and constitutional rights.
In the U.S., this type of activity could only be conducted
by the FBI, or by the military as to military personnel.
5. Collecting foreign intelligence information from
U.S.-persons through use of ma i_1 cover-. nrvsiccal surveillance,
and clandestine human sources outside the context of U.S.
organizations would require approval of a designated agency
officia.L based on a finding that:
a. The foreign intelligence sought is of a type
determined by the NSC to be important to the
conduct of U.S. foreign relations or protection of
U.S. national security.
b. Less intrusive techniques are inadequate.
In the U.S., these types of activities could only be conducted
by the FBI, or by the military as to military personnel.
6. The collection of nonpublic foreign intelligence
from unconsenting U.S. persons by any other means would be
regulated by procedures approved by the At-ta npy en r 1.
II. Development of the Administration Position
7. As you know, last November the Charter Legislation
Working Group, chaired by Tony Lapham, submitted to the SCC
a detailed Issues Paper and a set of draft statutory provisions
that represented one of the alternative approaches to
revising the restrictions portion (Title II) of the charter
legislation (S. 2525). The main standard around which the
Working Group had constructed authority to collect foreign
intelligence from U.S. persons in its draft required a
showing that "facts and circumstances indicate that the
United States person is an agent of orpi9n 12 ewer" and
that the information sought is "significant" foreign intelligence.
Similarly, the use of electronic surveillance lance to gather
foreign intelligence from a U.S. person abroad, while permitted
to be authorized by the Attorney General or the Special
Court, depending upon the circumstances, would have required
,%.,.--a finding of, among other things, probable cause to believe
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the target is an "agent of a foreign power." Other types of
collection would have been governed by procedures approved
by the Attorney General.
8. The Working Group had adopted the "agent of a
foreign power" standard as an alternative to the S.2525
requirement that collection of foreign intelligence from or
concerning a U.S. person be permitted only where there could
be shown to be some relation to a violation of U.S. criminal
law because (a) such a criminal standard bears no rational
relationship to the just' abort -or purpose for c-ollectiQn
0 foreign intelligence, (b) the "agent of a power standard"
is the basis for use of intrusive techniques under E.0 12036
and existing procedures, and (c) that standard seemed a
reasonable one that could be made more or less expansive by
enlarging or contracting the definition of "agent of a
foreign power" so as to include greater or fewer categories
of U.S. persons.
9. As you also know, the SCC, at the urging of the
Vice President and the Attorney General, determined not to
adopt or address the Working Group's product at that time
(November 1978). While there may have been many reasons for
this development, one apparent cause of the Vice President's
dissatisfaction was the belief that the papers were skewed
toward allowing greater flexibility to the intelligence
Nftwl entities at the expense of individual liberties. In any
event it was determined the task of developing an Administration
position should fall to a sub-SCC group chaired by David
Aaron.
10. At a 9 January meeting of this group, David Aaron
pointed out that the principal impediment to progress in the
restrictions portions of the charter was the issue of whether
and to what extent collection should be authorized as to
foreign intelligence that also relates to the activities of
U.S. persons. An SCC meeting was held on 24 January to
address this issue based upon an Issues Paper prepared by
DOJ with input from CIA and NSA. The 22 January 1979 OGC
memorandum provided you and the DDCI in preparation for that
meeting stated, in the context of a discussion of available
options relating to clandestine collection:
The intrusive techniques must be distinguished
here since it is illusory to believe that existing
-standards governing their use may be relaxed to
any significant degree.... The prevailing wisdom
concerning the extent to which existing law and
precedent permits these techniques to be used
abroad for the collection of foreign intelligence
where an American is involved indicates they will
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be available, except for emergency situations,
only where the American may be established to be
an "agent of a foreign power." However that term
may ultimately be defined in any proposed charter
legislation, it inherently and logically would
seem to require some form of association with a
foreign entity and would not include persons who
are merely in possession of information or engaged
in activities of interest, however significant, to
the U.S. Government. Thus, what is truly at stake
here is whether, and to what extent, under what
sort of procedural limitations, the other, "less
intrusive" covert techniques may be used to
collect foreign intelligence which concerns
Americans. (S)
That memorandum ultimately recommended the Agency position
at the SCC meeting favor a system of:
heightened approval standards and procedures which
would be tailored to particular circumstances and
techniques. For example, electronic surveillance
would continue to be available only in limited
instances and subject to high level approvals.
11. The SCC Issues Paper pointed out that there were
~- responsible advocates of the proposition that the Government
should "never collect foreign intelligence from law-abiding
Americans without their informed, voluntary consent." That
Paper also stated, in essentially the only direct reference
to electronic surveillance:
It should be remembered in considering the appro-
priate authorities and limitations which should be
imposed upon the acquisition of intelligence
information about U.S. persons by CIA through
covert means that, in all but serious national
emergency situations, the most intrusive collection
techniques such as electronic surveillance and
physical searches are not likely to be available
under existing law unless it may be established
that the American involved is an "agent of a
foreign power." Unless we seek statutory authority
to go further, the issue of whether to lessen,
retain, or heighten existing limitations and
procedural requirements for the purposes of intel-
ligence charter legislation relates largely only
to techniques not considered to be intrusive,
i.e., physical surveillance, pretext interviews,
and the use of information assets or "informants."
(Emphasis added.)
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There then followed a description of the general usefulness
in the past of clandestine collection techniques where U.S.
persons have been involved, and a discussion of current NSA
practices and limitations (relating to, but not mentioning,
the "agent of a foreign power" standard). The options
presented in the Issues Paper were limited to, (1) barring
any clandestine collection of foreign intelligence from
U.S. persons, (2) allowing such collection only in highly
extraordinary circumstances and under stringent procedural
requirements, and (3) allowing such collection limited by
procedures and standards, such as requiring a showing of
"agent of a foreign power," some "relationship" with a foreign
power, a violation of criminal law, etc.
12. Thus, preceding the 24 January SCC meeting, it
had been presumed that there was not likely to be any
dramatic retreat from existing standards for targetting U.S.
persons, at least as to the intrusive techniques. Indeed,
NSA was concerned that current standards for use of intrusive
techniques (i.e., "agent of a foreign power") might even be
tightened. While there was language in the Issues Paper that
hinted at adopting standards different from those now
governing collection as to U.S. persons, this seemed to be
intended to allow for such a change primarily as to the less
intrusive techniques. These assumptions were supported by
the November SCC debacle involving the-Working Group papers.
13. The precise course of events at the 24 January SCC
meeting remains unclear. The DDCI attended and was prepared
to defend current practice against any effort to tighten
existing strictures. Shortly after the meeting began,
David Aaron cleared the room of all but principals. The
decisions that emerged, although it is unclear how they were
reached or by whom they were proposed, were that, (1) there
should be no "criminal" or "agent of a foreign pow(nr"
standard for use o ec ni ues against U.S.
persons abroad rather a court or er should be required
based on the ualit of informaio" on sought, and (2) use of
other techniques would require entity head findings based
on the quality of intelligence sought. Apparently, the Vice
President himself acknowledged that U.S. persons abroad may
lose some of their protection from governmental action.
Subsequently there were hints in news reports that the Attorney
General had claimed responsibility for these proposals. Justice
was commissioned to draft provisions to implement the SCC
decisions. (S)
14. Justice required further guidance, however, and a
second SCC meeting was held on 13 February. It was in the
DOJ paper prepared for discussion at that meeting that the
notion of "mss&errti-a -foreign intelligence" was introduced as
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a standard for judicial authorization of use of intrusive
~...r techniques. At the SCC meeting it was determined this
standard was acceptable as to those techniques and would
be required also with regard to requiring Attorney General
approval of "placing agents" in U.S. organizations for these
purposes, and that an "important" standard was agreeable as
to use of other collection techniques. (C)
15. The Working Group was revived to draft statutory
provisions in conformity with those decisions. This was
completed by 7 March, and the proposal was circulated for
comment to SCC members on 14 March. Your 21 March memoran-
dum for David Aaron addressed several lesser points and
concluded by stating:
I also believe it would be a mistake to adopt a
piecemeal apprroach and present to the President
and then the SSCI the various sets of proposed
statutory provisions concerning each issue area
treated by the SCC as they are developed and
finalized, rather than combining them in a unified
statutory proposal. The piecemeal approach could
make it much more difficult to gauge the total
effect of the restrictions package or to modify
positions on various issues that may require
change as a result of subsequent deliberations in
other areas.
Nonetheless, the Administration's foreign intelligence proposal
was sent to and approved by the President and furnished to
the SSCI on or about 20 April. In the course of approving
these provisions, the President rejected suggestions that
the judicial warrant requirement should be extended to
"placing agents" in U.S. organizations and that U.S.
"political organizations" should be insulated completely
from this type of activity.
III. Pros and Cons
16. As you know, the Administration position already
has been the subject of criticism from civil libertarian
groups and has resulted in several news accounts describing
it and its perceived dangers. A sampling of these reports
is attached for your information. It is true the authority
that would be created by the SCC decisions would be far
bro r tl urren -.autl -ity for the use of intrusive
to h directed against U.S. persons abroad, and wou d
be significantly greater than, and stand in marked contrast
to, the authority provided under the Foreign Intelligenne
Surveillance Act-,for use of these techniques against U.S.
persons in the U.S. Similarly, the use of physical st~r~rei] 1anpe,
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concerning U.S. persons would depend on the c ,ality of the
ia:EoxmaLen---rpought rather than, as is largely the case -under
E.O. 12036, on the conduct of the U.S. person involved
(e.g., acting on behalf of a foreign power, endangering
sources or methods).
17. It is also true that, because these authorities
are so different from those on which current or past practices
have been grounded, it may ill be difficult to demonstrate a
convincing or compelling need for statutory provisions that
would for the first time expose U.S. persons to intelligence
collection activities solely on the ground that they possess
foreign intelligence information desired by the government.
Despite our protracted efforts over the past several months,
we have been unable to substantiate, by reference to more
than a very limited number of actual circumstances, the
claim that the Agency has been deprived of valuable foreign
intelligence information because of the absence of such
broad authority. As a result, any effort to justify this
proposal is likely to rely heavily on hypothetical cases,
both past and future, where the government might benefit
from an entity to collect information more readily from U.S.
persons. By contrast, the perceived threats to privacy
interests of U.S. persons may be made to appear obvious and
tangible by those who will oppose broader authority, with
%?w historical precedent provided by activities such as the
CHAOS and COINTELPRO programs.
18. On the other hand, the Administration proposal is
not without redeeming value. It preserves and promotes the
necessary distinction between the intelligence activities
and the law enforcement activities of the U.S. Government, a
distinction that has become increasingly blurred in the
minds of segments of the public, the press, and the drafters
of S. 2525. The proposal, for the first time, would require
a judicial warrant for the use of intrusive techniques
abroad, neither an insignificant concession by the intelligence
entities nor a safeguard that can be easily brushed aside by
those who may oppose the proposal. The proposal also will
regularize the collection process and accountability for
decisions to utilize these authorities. TheNSC would-bp-
responsible for i essentiality - a high standard
n a -literal sense - and various officials down the line
will be responsible for their actions, again not an insignificant
feature since the charter may include specific civil and
criminal remedies, depending upon the SCC's decisions on
15 May, for certain types of violations. Attorney General
approval and findings would be required for "infiltrating"
U.S. organizations to collect foreign intelligence, use of
other somewhat-intrusive techniques would require specific
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approval based on specific findings of the importance of the
information, and both types of activity would be limited to
the FBI in the U.S. - all additional "firsts" of some significance.
Other collection techniques would continue to be regulated
by procedures approved by the Attorney General.
19. Furthermore, it cannot be argued in opposition to
this proposal that there will not be situations in the
future where vital, perhaps even critical, information would
be unavailable to the U.S. unless such authority is provided
in the statute. It may not be stretching the point to say
that flexibility, the ability to adapt activities to existing
circumstances, is the most essential element of the collection
business. In the areas of nuclear technology, energy and
oil, and international economic activities, for example,
there may develop instances where U.S. persons are in posses-
sion of information they choose not to share with the govern-
ment that may truly be deemed "essential" to U.S. national
security. While there is always the possibility that this
authority could be misused to suit a disorted view of U.S.
national security interests, it must be presumed that high
level officials will act responsibly, especially when held
accountable, or any statutory scheme that may be devised
will be unworkable. As to the most sensitive types of
activities, the involvement of an impartial judicial autho-
rity will serve to prevent gross distortion.
IV. Your Course of Action
20. This proposal is likely to remain controversial
and difficult to explain. It can be expected that criticism
will heighten as the public debate proceeds. It is our
understanding that Senators Huddleston, Bayh, and Mathias
met with and informed the Vice President recently that the
Administration position on this issue is unacceptable to
them. Although it is our further understanding that the
Vice President registered his support for the proposal
at that meeting, and that the Attorney General may be
designated as chief spokesman on these issues, it is
certain that your views will be solicited and that the
Administration will expect you to shoulder a major responsibility
for defending its charter position.
21. While you may be experiencing some justifiable
anxiety at the prospect of defending the Administration
proposal,. you should consider carefully whether this is
the most gpnnrt i times to make your feelings known, even
within the Administration. The Administration position is
the product of an arduous, time-consuming process, has been
explicitly sanctioned by the President, and has already been
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provided to the SSCI. Consequently, it would be very painful
for the SCC to even consider retreating from that position
until it becomes more evident that a compromise is necessary.
Also, any move on your part to force reconsideration of the
position on foreign intelligence collection may result in a
collapse of the fragile Administration consensus that
surrounds not just that position but all the Administration
decisions reached thus far. The result may be damaging to
our interests in other areas, such as special activities
where the Administration position is clearly defensible. A
further substantial delay in the Administration's efforts to
develop a charter could result, and it would probably not be
long before word reached the news media that you were the
cause.
22. It should be kept in mind that the enactment of
charter legislation is nowhere near imminent and that much
negotiation and compromise is yet to occur. Since the
legislative process is-inevitably one of presenting a most
favorable position and then falling back to more agreeable
provisions, it would be unrealistic to expect to begin with
a final proposal and it is to be expected that the current
Administration position will be subject to further discussion
and modification. What this means is that there are likely
to be other, more propitious circumstances ahead in which an
expression of your position may not only be more appropriate
but also better received.
23. Further, it is not unreasonable to argue that you
should do your utmost to defend the Administration proposal,
so long as it is not outrageous (which this position is
not), despite any personal reservations you may have. This
is especially so here since a weak DCI or CIA showing in
favor of greater flexibility in this area is likely to
substantially weaken our ability, both within the Administration
and before the Congress, and not only as to foreign intelligence
collection but also as to the other Administration positions,
to object to alternative proposals that may do real damage
to U.S. intelligence capabilities. For example, we understand
that one SSCI counterproposal under serious consideration
may be to require a judicial warrant for any and all collection
of ffrrP gn intelliaence from in ivi ua U.S. persons,
regardless of the technique to be used. In a functional
sense, also because of your position as DCI, you bear primary
responsibility for ensuring that a statutory charter provides
sufficient authority to meet U.S. intelligence requirements,
and the intelligence community entities will naturally
expect you to articulate their desire for greater flexibility
and to advocate their need for some loosening of current
restrictions.
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24. If, nonetheless, your concerns are of sufficient
magnitude to eclipse these considerations and you believe
you must take action now to prevent more serious damage
later, you may wish to begin by ensuring the SCC members,
and perhaps even the President, are aware of your feelings
in order that they will not be surprised subsequently
should you voice them. One vehicle for doing this would be
to suggest at the end of the 15 May SCC meeting, if such a
suggestion is not made by one of the other SCC members, that
there be a "final" meetina of thatq,:_p, as was proposed in
your March letter to David Aaron, to assess what has been
done, to ensure the Administration is fully committed to its
proposals, and to discuss how the Administration intends to
proceed from here. Practically speaking, it can be expected
that your position may be used to your disadvantage no
matter what you say if not carefully framed and you may find
yourself being attacked for, at the same time, seeking too
much authority or for not supporting sufficient authority.
Any presentation you may feel compelled to make to the SCC,
accordingly, should be carefully measured to avoid the
appearance of indecision, weakness, or timidity, and to
avoid an overreaction that could result in the entire charter
structure being pulled down around you and the Agency. As
noted above, such a result could be truly adverse in that
your views and those of the Agency could be discounted on
this and other issues in the future. Therefore, your
'objectives in making any statement along these lines to the
SCC should be to ensure that (i) the Administration is
serious about presenting and defending this proposal, (ii)
these are commitments on all sides to share in that defense,
(iii) there is some clear definition of the roles you
and others are to be expected to play in this process,
and (iv) the SCC members understand that, while the Administration
position on foreign intelligence collection is far from an
irresponsible effort to destroy individual liberty, the
justification may not be overwhelming in the face of the
case that is likely to be presented on the other side to
demonstrate a threat to the privacy interests of Americans.
25. Looking ahead, and concerning an area that you will
surely wish to discuss with Fred Hitz in greater detail
when the appropriate time comes, is the problem of what course
will be open to you if you feel the current Administration
position, or a substitute position that may be developed
later, is unpalatable and you cannot wholeheartedly support
it should it survive to the point where public comment and
testimony is required of you. This situation could arise
if you choose now to say nothing and allow events to develop,
or if you decide you must request a "final" SCC meeting and
assessment but such an SCC review results in a decision to
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proceed with this proposal, or if such a review or the
legislative process result in a different approach that is
still not satisfactory to you. To oppose the Administration
position publicly could be calamitous, and half-hearted
support may be easily perceived to be just that.
26. Should such a situation develop, one approach that
you may wish to consider would be to attempt to avoid
addressing the position as "right" or "wrong" but to present
only your best assessment of the inta11ig nne gain o loss
that could be expected to result. The supportive roles of
of er Administration officials should be clear by then and
it should not be expected, if the Administration is serious
about its proposals, that you will be responsible alone for
defending its charter provisions on all fronts. You should
not be required to answer, for example, the inevitable
question of whether it is "good" or "bad" to seek to collect
information from Americans who have "done nothing wrong."
That question should be left to others to debate and your
function as DCI should be to arrive at and present intelligence,
not moral, legal, political, or philosophical judgments.
Those areas are more properly the concerns of the Attorney
General, the President and Vice President, and the members
of the Congress themselves. Such a posture has its dangers
of course and may quickly prove to be one that others will
not allow you to maintain for long. It is an approach,
also, that will be easily susceptible to misunderstanding
and, as you know, treading a middle ground in a spirited
public debate is not only difficult but is not likely to win
you the gratitude of either side. It is presented here,
admittedly prematurely, only for the purpose of rounding out
this discussion of the problems you may face in dealing with
this small aspect of charter legislation. Another alternative,
in such a situation, would be to prepare and advocate provisions
with which you can be comfortable on a personal basis, while
also accommodating real intelligence needs. The difficulties
of proposing alternatives to an Administration bill are
obvious.
27. Recommendation: If you conclude, after considering
the details of the Administration position concerning foreign
intelligence collection as described in this paper, that it
would be beneficial from an intelligence, tactical, and
political point of view to proceed with it at this time, you
should not oppose it now. If, on the other hand, you
have very strong personal reservations concerning the
wisdom of the Administration position that you believe
override any such beneficial aspects and the risks of
expressing yourself now, you should make those feelings
known to the SCC on Tuesday. In any event, there is something
to be said for suggesting to the SCC that there be a "final"
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SCC meeting to assess what has been done, determine the course
to be pursued from here on, and define your role in it
more clearly.
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BACKGROUND MATERIALS FOR 1(May 1979 1400-10D
SPECIAL COORDINATION COMMITTEE MEETING CONCERNING
INTELLIGENCE CHARTER ISSUES
PART I: USE OF PARTICULAR TYPES OF PERSON AND ORGANIZATIONS
FOR INTELLIGENCE PURPOSES
1. OGC Memorandum and Recommendations
2. Tab A: SCC Issues Paper
3. Tab B: (i) 0 provisions governing relations
with
- U.S. News Media Organizations
- Clergy and Missionaries
- Acade ics
(ii) governing operational
use of certain categories of
individuals, including
- Fulbriaht grantees (page 5)
- Employees of other federal acrenr.ies
- Media , representatives (page 9)
- Academics (pages 12-13)
- U.S. persons abroad in general
(page 12 and book cable attached
to DOI)
(iii) Katzenbach Report and Presidential
directive 12agging support of
U.S. educational or private
voluntary organizations
4. Tab C: Views of the Chief, DDO/Covert Action
Staff and the Coordinator, NFAC/
Academic Relations
5. Tab D: OGC Background Papers
(i) Undisclosed Participation for
Recruitment of Foreign Persons
in the U.S.
(ii) Undisclosed Participation in U.S.
Organizations Generally
6. DDO MATRIX of Issues and Current Regulations
PART II: REMEDIES
1. OGC Memorandum and Recommendations
2. Tab A. Issues paper
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