ISSUES FOR DISCUSSION AT THE 24 JANUARY MEETING OF THE NATIONAL SECURITY COUNCIL'S SPECIAL COORDINATION COMMITTEE (SCC) CONCERNING INTELLIGENCE CHARTER LEGISLATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81B00401R001400170016-5
• Release Decision: RIPPUB
• Original Classification: T
• Document Page Count: 9
• Document Creation Date: December 19, 2016
• Document Release Date: September 13, 2005
• Sequence Number: 16
• Publication Date: January 22, 1979
• Content Type: MF

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22 January 1979
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MEMORANDUM FOR : Director of Central Intelligence
THROUGH Deputy Director of Central Intelligence
FROM Anthony A. Lapham
General Counsel
SUBJECT Issues for Discussion at the 24 January
Meeting of the National Security Council's
Special Coordination Committee (SCC)
Concerning Intelligence Charter Legislation
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1. Action Requested: It is requested that you review
this memorandum and the attached issues paper which has been
prepared jointly by Justice, CIA and Defense in connection
with the SCC meeting now scheduled for Wednesday, 24 January.
The purpose of that meeting is to discuss and determine, to
the extent possible at this stage, the general nature of the
position the Administration should take with regard to
statutory authorities and limitations pertaining to collec-
tion of information that may constitute foreign intelligence
but that also concerns Americans in one way or another. In
addition to the issues paper, attached for your information
are copies of a recently prepared overview of existing
practice and authority in this area and the most recent
position paper produced by the staff of the Senate Select
Committee on ~ntelliCfQnce (SSCI) which discusses this area
on pages 5-7.
2. Background: As you know, the development of Admin-
istration positions as to the proposed charter legislation
has become the responsibility of a group chaired by David
Aaron. At the most recent meeting of tlt group, on 9 January,
it was determined, largely at David Aaron's urging, that the
principal impediment to real progress in the resolution of
the issues relating to Title II of S.2525 is the question of
the extent, if any, to which the intelligence agencies
should be allowed to collect foreign intelligence informa-
tion that also relates to the activities of Americans. In
order to obtain high-level guidance as to the preferred
Administration position in this regard, the attached issues
paper has been prepared for SCC considerat.on at its 24
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paper points out, the issues presented relate only to the
3. Scope of the Question Presented: A f the attached
CLASSIFIED ECRET HE SERA 1/ 3 6A ATTACH.
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Collection of counterintelligence information, or-
informa-tion relating to Dotential source or to security matters,
has been put aside for the moment since there appears to be
no basic philosophical dispute among those involved in the
charter process at this time but that such information
should and may be collected whether or not it concerns
Americans. Issues regarding the appropriate circumstances,
techniques, and limitations of such collection will be dealt
with at a later date.
4. Thus, the focus here is on the collection of foreign
intelligence viewed in theoretical isolation from all other
collection activities. The term "foreign intelligence"
should be understood to apply broadly in the context of this
discussion to not only information concerning the capabilities,
intentions, and activities of foreign persons or entities
which is in the possession of an American, but also to
information concerning activities cf Amer__=icans that may
influence developmentslabad or that may be useful in
determining the most appropriateic~_to be pursued by the
U.S. in a particular area abroad. In addition, the discussion
is drawn in larger terms to involve both collection of such
information from Americans whether or not it directly "concerns"
'..'them, and collection of such information concerning Americans
whether or not it is acquired directly "from" them. Further,
it must be remembered that "Americans" as here defined
includes not only natural-born U.S. citizens, but also
entities incorporated in the U ., naturalized citizens,
dual nationals, persons with permanent resident alien status,
and organizations substant is y composed of individuals in
any of these categories. Finally, to simplify the issues as
much as possible, and to accommodate differing views within
the Aaron group as to this point, no distinction has been
made between, col. ct Qnaetivities that Qccur in the U.S.
and those that occur abroad although it seems tone such a
distinction may be perfectly reasonable in various circumstances
and as to use of certain techniques.
5. There is sharp divergence of views between and
among the Administration and Senate representatives involved
in the consideration of the proposed charters as to the
fundamental question of whether collection of positive
foreign intelligence consisting in part of information which
concerns Americans should be authorized at all and, if so,
in what circumstances and by what methods, and under what
procedures.
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6. Issues: For the purposes of discussion, the issues
and options have been organized somewhat artificially under
four basic forms of collection: (a) voluntary or consensual
provision of information; (b) interviews with third parties
who are aware they are providing the U.S. Government with
information which concerns Americans and which has been
disclosed to them by American friends, relatives, or acquaint-
ances; (c) incr;c1 nfa1 a qui sin of information which
concerns Americans in the course of intelligence activities
directed at foreign targets; and (d) the use of covert
methods with the intent and for the purpose of acquiring
information which concerns Americans.
a. Voluntary, Consensual Provision of Information:
There appears to be no dispute but that the government
should be entitled to accept and utilize information
that concerns Americans but that is provided voluntarily
by, or with the consent of, the Americans who are
involved. This agreement tends to blur around the edges
and overlap with third party or covert collection
considerations, however, in some circumstances, as, for
example, where the providers are acting voluntarily in
furnishing information as to their own activities but
other Americans are intrinsically involved, or where
corporate employees are voluntarily providing informa-
tion concerning their official activities but with
which corporate interests are essentially intertwined.
Despite this sort of definitional problem, continuing
authority to accept information offered on this basis
should no dissent or require much dis-
cussion.
b. Third Party Interviews: This area involves
only circumstances where persons ("third parties") are
aware t r contact-w th an official of the
rmm~t and provide information previously disclosed
to them by an American who may not be aware it is being
passed on to the government. This type of collection
would n t?~ n, chide situations where third parties are
requested or " sked" to obtain the initial, or addi-
tional, information as that would alter the character
of this activity and require it to be treated as a
form of covert collection. The need for third party
collection could arise either where the American involved
has been approached and has refused to provide the
desired information to the government, or where the
American has not been approached at all because of
security or other reasons as, for example, where the
government is not previously aware of the fact that the
American concerned is in possession of useful information.
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As is indicated in the portion of the attached
issues paper concerned with third party interviews,
this type of collection would include not only instances
where CIA case officers might solicit or receive infor-
mation concerning Americans which is already known to
foreign or American information assets, but also a
large portion of the activities
As ik arspinuicaL in -clie
issues paper, this form of collection appears to be
u-P nd may produce very significant infor-
mation.
There is not apt to be great discussion or dis-
agreement concerning continued authority for this form
of collection. For your information, except for its
most recent position paper which did not appear to be
well-considered and would have required a Presidential
waiver and Attorney General procedures for such collec-
tion, even the SSCI staff has been prepared to accept
this d
type o a _ 2 ave authorize
it sPecixf icall .
Basically, "Option A" represents current practice
and should be supported. As a general proposition,
individuals who have disclosed personal information to
third parties have essentially waived their privacy
interests in that information, even where they have
requested confidentiality and the collection of the
information therefore does not intrude on such interests.
Limiting this type of collection further by special
procedures or by requiring a relation with a foreign
power as is proposed in Option B could deprive the U.S.
of information concerning economic and other activities
of Americans which might have significant effects upon
developments abroad.
c. Incidental and Unintentional Collection: This
form of collection, also not likely to be the subject
of substantial debate or disagreement, involves situa-
tions where information that concerns Americans is
acquired in the course of activities directed at foreign
targets. Such collection occurs in connection with CIA
human intelligence activities, where it is truly incidental,
and____N.SA aid CIA signals intelligence activities, where
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Collection by CIA would occur, for instance, where
a case officer who is required to maintain a cover
status meets and engages in conversation with an American
who has traveled or been active abroad and who relates
significant details of that experience without being
aware of the case officer's true affiliation. To a
great degree the American, albeit uninformed, has
waived any privacy interest in the information by
disclosing it to the CIA officer or asset in much the
same manner as is the case in the context of third
party interviews. The opportunity for this type of
collection develops somewhat frequently, but because of
its fortuitous and open nature it cannot be depended
upon to any great extent as a source of significant
information.
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SUBJECT: Issues for Discussion at the 24 January Meeting
of the National Security Council's Special
Coordination Committee (SCC) Concering
Intelligence Charter Legislation
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Distribution:
Cy
1 -
DCI
Cy
2 -
DDCI
Cy
3 -
ER
Cy
4 -
D/DCI/CT
Cy
5 -
DDO
Cy
6 -
DDS&T
Cy
7 -
NFAC
Cy
8 -
OGC Subj
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 Approved For Release 2005/11/23 : CIA-RDP81 B00401 R001 400170016-5
WEDNESDAY
24 JANUARY 1979
1400-1530
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