OPINIONS OF THE OFFICE OF GENERAL COUNSEL

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP84-00709R000300090001-0
• Release Decision: RIPPUB
• Original Classification: S
• Document Page Count: 318
• Document Creation Date: December 14, 2016
• Document Release Date: May 12, 2003
• Sequence Number: 1
• Publication Date: June 1, 1974
• Content Type: BOOK

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!f A 3LI INTELLIGENCE AGENCY
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F GENL,-.i ~'X,. COUNSEL,
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KGRET
LEGISLATIVE HISTORY
of the
CENTRAL INTELLIGENCE AGENCY
NATIONAL SECURITY ACT OF 1947
Prepared by
25 July 1967
SECRET
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TABLE OF CONTENTS
INTRODUCTION ..................................................
CHAPTER I: EXECUTIVE DEVELOPMENT ......................... 5
Initiative ............................................ 5
Coordinator of Information ............................ 6
Office of Strategic Services ........................... 7
OSS Authorities ...................................... 8
Central Intelligence Group .............. ............ 11
Background "Principles" .............................. 12
"Plan" .............................................. 13
Joint Chiefs' Consideration ............................ 14
Secretaries of State, War, and Navy Consideration....... 16
Secretary of Navy .................................... 16
Secretary of War ..................................... 17
Secretary of State..... ............................. 17
Recommendations to the President......... ............. 18
Presidential Directive ................................ 19
Achievement through Executive Action ................... 22
CHAPTER II: LEGISLATIVE PROPOSALS - EXECUTIVE BRANCH.... 23
CIG Consideration ................................... 23
Presidential Recommendation to Congress ............. 30
CHAPTER III: CONGRESSIONAL CONSIDERATION OF THE
NATIvNAL SECURITY ACT OF 1947 .................. 33
Background ........................................ 33
Legislative Processing .............................. 36
Legislative Record on CIA ........................... 37
CHAPTER IV: NEED FOR CENTRAL INTELLIGENCE ............... 40
Senate Armed Services Committee .................... 41
House Committee ................................... 45
Committee Reports ................................. 46
Floor Discussion ....47
CHAPTER V: POSITION WITHIN EXECUTIVE BRANCH .............. 52
NSC Relationship .................................... 53
Relationship with Intelligence Community .............. 58
DCI Relationship with NSC ............................ 63
Summary ........................................ 65
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CHAPTER VI:
FUNCTIONS .......................................
67
Senate ............................................
--68
House Committee ...................................
69
Summary .........................................
73
CHAPTER VII:.
COLLECTION ................................... _ .
75
Background .......................................
75
House Committee ..................................
75
Summary ......................... ........ ..
81
CHAPTER VIII:
CIVILIAN STATUS OF DCI .........................
82
Background ......................................
82
Senate ...........................................
84
House Committee .................................
85
House Floor ......................................
91
Conference Committee ............................
99
Summary ........................................
1G1
CHAPTER IX:
INTERNAL SECURITY ..............................
103
House Committee Executive Session .................
104
House Published Hearings ........................
113
House Floor .......................................
115
The Federal Bureau of Investigation ...................
116
Conferees .........................................
122
Summary ..........................................
123
CHAPTER X: NATIONAL SECURITY ACT of 1947 ...................
124
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This legislative history of the Central Intelligence Agency has
been compiled in the interest of providing a better understanding of
the structure and functions of the Central Intelligence Agency.I
As a function of Government, foreign intelligence lies within
the province of both the Legislative and Executive Branches. Not only
does Congress possess the power of the purse but it has the power and
responsibility to provide "...for the common Defense and general Wel-
fare of the United States... Roots of relationship are even found in
the power to declare war since "... the surest means of avoiding war
is to be prepared for it in peace... "3
Equally clear is the responsibility of the Chief Executive to take
executive action, not barred by the Constitution or other valid law of
the land, which he deems necessary for the protection of the nation's
security.
As a matter of fact, the Central Intelligence Agency is a product
of both Executive and Legislative action. This partnership of action
is seen in the major evolutionary stages that occured during the period
1941 through 1949:
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Executive Action
11 June 1941
Forerunner of national intelligence service established by
Presidential Order (6 Fed. Reg. 3422). (Key Elements:
Office of Coordinator of Information; Government-wide
collection of information bearing on national security; direct
reporting to the President; inter-departmental committee
system. )
23 July 1941
Coordinator of Information authorized to expend funds for
certain limited purposes by Presidential letter.
13 June 1942
Office of Coordinator of Information redesignated as Office
of Strategic Services and its functions (exclusive of certain
foreign information activities transferred to Office of War
Information) transferred to Office of Strategic Services
(16 Fed. Reg. 3422). (Key Elements: Joint Chiefs of Staff
jurisdiction; Director of Strategic Services appointed by the
President.)
1 September 1942
Certain contracting latitude ''. . . without regard to provisions
of law... granted to Director, Office of Strategic Services
(Executive Order 9241).
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22 January 1946
First Government-wide foreign intelligence service estab-
lished by Presidential directive. (Key Elements: National
Intelligence Authority at Secretary-of-Department level;
participation by personal representative of the President;
the office of the Director of Central Intelligence (appointed
by the President) Central Intelligence Group; within limits
of appropriations available to Secretaries of State, War,
Navy; precursor of Central Intelligence responsibilities
and authorities later enacted into law. )
Legislative Action
28 June 1944
First independent appropriations for Office of Strategic
Services (National War Agency Appropriations Act of 1945).
(Key Elements: Appropriations in Title I covering the Executive
office of the President; expenditures "for objects of a
confidential nature;" certain accounting by certificate of
Director of Strategic Services.
26 July 1947
Statutory basis for centralized foreign intelligence service
prescribed by the National Security Act of 1947. (Key
Elements: National Security Council, Office of-the Director
of Central Intelligence; the Central Intelligence Agency; foreign
intelligence service on a Government-wide basis.)
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20 June 1949
Statutory basis for the administration of the CIA prescribed
by the Central Intelligence Agency Act of 1949. (Key Elements:
Enabling authorities for the administration of the CIA on an
independent basis. )
Ececutive correspondence and orders and Congressional material,
including hearings and reports and Congressional Record reporting
of floor discussions on bills specifically relating to CIA are the primary
sources of material used for this paper. Secondary source material
and other comment are used for continuity and completeness.
In -connection with past and on-going efforts to commit the
Agency's history to writing, this paper provides a chronology and
bibliography of legislative actions affecting the Agency, and collects the
issues concerning central intelligence which were put before Congress
for resolution; the alternatives considered by Congress in resolving
them; and the reasons or rationale for the choices or compromises
Congress ultimately approved.
It is recommended that the existing CIA publication on statutes
specifically relating to CIA (in text and explanation form) be reviewed
in connection with this work.
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CHAPTER I. EXECUTIVE DEVELOPMENT
Interest in the structure of the nation's foreign intelligence effort
was of primary interest to the Executive Branch during the 1941 to 1946
period. In response to the pre-war, war, and post-war events spanning
this period, the Roosevelt and Truman Administrations saw the establish-
ment of the Coordinator of Information, the Strategic Services, and
finally the Central Intelligence Group. Each served as a building block
for its successor organization.
Initiative
The deteriorating international situation in the late 1930's sur-
faced a number of problems outside of the responsibilities of any one
department. Yet, it was becoming increasingly urgent that the Presi-
dent receive coordinated information.
The Reorganization Act of 1939 provided a basis for handling both
of these problems.4 Under it, the Executive Office of the President was
established. 5
The Executive Office, as a central staff, was organized into six
principal divisions. One was reserved for emergency management
"... in the event of a national emergency or threat of a national emer-
gency. "6 This was in September of 1939. Eight months later and under
a "threatened national emergency, " the Office of Emergency Management
(OEM) was established.
OEM was concerned with clearing information and securing
maximtun "utilization and coordination of agencies and facilities...
SECRET
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In keeping with its duties to "... advise and assist the President in
the discharge of extraordinary responsibilities imposed upon him by
an emergency arising out of war, the threat of war, (or) imminence
8
of war... ", the functions of OEM were further refined in January
of 1941. Clearly, the events which foretold the advent of the Second
World War were also propelling the organization of foreign intelli-
gence on a Government-wide basis.
Coordinator of Information
The responsibilities of a Government-wide informational
channel to the President became more, explicit on 11 July 1941 when
the Office of Coordinator of Information (COI) was added to the Execu-
tive Office. Colonel. William J. Donovan was named to the position,
The functions prescribed for the COI and those eventually enacted
as duties of the Central Intelligence Agency were quite similar:
"Collect and analyze all information and data, which may bear
upon national security; to correlate such information and
data, and to make such information and data available to the
President and to such departments and agencies as the Presi-
dent may determine and to carry out, when requested by
the President, such supplementary activities as may facilitate
the securing of information important for national security
not now available to the Government. "9
Authority to fulfill this commission included the right of access
to information and data within various departments and agencies as
long as the duties and responsibilities of the President's regular mili-
tary and naval advisers were not impaired. 10 The COI was also
empowered to obtain assistance through the appointment of various
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office, transportation, subsistence, and other incidental expenses
were authorized. 11 Operating expenses were funded out of the Presi-
dent's Emergency Fund. Under this simple but broad mandate,
Colonel Donovan began building a foreign intelligence service.
Office of Strategic Services
Following the Declarations of War against the AXIS powers,
Congress enacted the First War Powers Act, 1941, (P. L. 77-354) and
conferred upon the President the authority ". . . urgently needed in order
to put the Government of the United States on an immediate war footing. "12
Title I of the Act authorized redistribution of the functions of the
various agencies to facilitate the prosecution of the war effort.
With the nation on a "war footing, " it was clearly desirable to
provide a closer link between the tested and developing capabilities of
COI and the Armed Forces. On 13 June 1942 the President, as Commander
in Chief, issued a military order re-designating the COI as the Office
of Strategic Services (OSS) under the jurisdiction of the Joint Chiefs. 1.3
(Foreign information activities of COI were transferred to the newly
created Office of War Information. 14) The charge for OSS was to.,
"a. Collect and analyze such strategic information as may be
C required by the United States Joint Chiefs of Staff. "
Plan and operate such special services as may be directed
by the United States Joint Chiefs of Staff. ".
The President appointed Colonel Donovan as Director of Strategic
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Services "... under the direction and supervision of the United States
Joint Chiefs of Staff."
OSS Authorities
OSS was forced to adjust to a number of problems which had not
faced COI. COI had received secure support in the form of funding,
contracting and other services from the Executive Office. This arrange-
ment could not be continued indefinitely. Consequently, OSS needed
and was granted certain specific authority.
The President extended to OSS the same privilege to enter into
contracts "... without regard to the provisions of law relating to the
marking, performance, amendment, or modification of contracts...
as had been earlier granted to the War Department, the Navy Department,
and the United States Maritime Commission under the First War Powers
Act of 1941. 15
During the first Fiscal year of operation (194Z-43), OSS was
supported out of allocations from the President's Emergency Fund.
Significantly, and to the extent determined by the President, these Funds
could be expended "... without regard to the provisions of law regarding
the expenditure of Government funds or the employment of persons in
the Government service... " In addition, the President. could authorize
certain expenditures "... for objects of a confidential nature and in any
such case the certificate of the expending agency as to the amount of the
I
expenditure and that it is dcterminded inadvisable to specify the nature
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thereof shall be deemed a sufficient voucher for the sum therein
expressed to have been expended. x+16
OSS became independent of the President's Emergency Fund during
the second fiscal year of its operation (1943-44). The National War
Agencies Appropriation Act of 1944, 17 as it pertained to OSS, read as
follows:
OFFICE OF STRATEGIC SERVICES
Salaries and expenses: For all expenses necessary
to enable the Office of Strategic Services to carry out its functions
and activities, including salaries of a Director at $10, 000 per
annum, one assistant director and one deputy director at $9, 000
per annum each; utilization of voluntary and uncompensated
services; procurement of necessary services, supplies and
equipment without regard to section 3709, Revised Statutes;
travel expenses, including (1) expenses of attendance at meetings
of organizations concerned with the work of the Office of
Strategic Services, (2) actual transportation and other neces-
sary expenses and not to exceed $10 per diem in lieu of sub-
sistence of persons serving while away from their homes without
other compensation from the United States in an advisory capa-
city, and (3) expenses outside the United States without regard to
the Standardized Government Travel Regulations and the Sub-
sistence Expense Act of 1926, as amended (5 U. S. C. 821-833),
and section 901 of the Act of June 29, 1936 (46 U. S. C. 1241);
preparation and transportation of the remains of officers and
employees who die abroad or in transit, while in the dispatch of
their official duties, to their former homes in this country or
to a place not more distant for interment, and for the ordinary
expenses of such interment; purchase and exchange of lawbooks
and books of reference; rental of news-reporting services; pur-
chase or rental and operation of photographic, reproduction,
duplicating and printing machines, equipa-ient, and devices and
radio-receiving and radio-sending equipment and devices;
maintenance, operation, repair, and hire of motor-propelled
or horse-drawn passenger-carrying vehicles and vessels of
all kinds; printing and binding; payment of living and quarters
allowances to employees with official headquarters located
abroad in accordance with regulations approved by the President
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on December 30, 1942; exchange of funds without regard to
section 3651. Revised Statutes (31 U. S. C. 543); purchase and
free distribution of firearms, guard uniforms, special clothing,
and other personal equipment; the use of and payment for
compartments or other superior accommodations considered
necessary by the Director of Strategic Services or his desig-
nated representatives for security reasons or the protection
of highly technical and valuable equipment; $35, 000, 000 of
which amount such sums as may be authorized by the Director
of the Bureau of the Budget may be transferred to other depart-
ments or agencies of the Government, either as advance pay-
ment or reimbursement of appropriation, for the performance
of any of the functions or activities for which this appropriation
is made: Provided, That $23, 000, 000 of this appropriation may
be expended without regard to the provisions of law and regula-
tions relating to the expenditure of Government funds or the
employment of persons in the Government service, and $21, 000, 000
of such $23, 000, 000 may be expended for objects of a confiden-
tial nature, such expenditures to be accounted for solely on the
certificate of the Director of the Office of Strategic Services
and every such certificate shall be deemed a sufficient voucher for
the amount therein certified.
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From its inception, OSS operated under two unusual rules
relating to the expenditure of Government monies. One permitted
latitude concerning the purpose for which funds could be expended.
The other protected against the unauthorized disclosure of the pur-
pose and details of certain expenditures. The Director of OSS enjoyed
the confidence of Congress in the exercise of this broad grant of
authority and this confidence in him was sustained in subsequent
appropriation acts. 18
Central Intelligence Group
While the Office of the Coordinator of Information and the
Office of Strategic Services were forerunners of a Government-
wide foreign intelligence service, the Presidential Directive of 22
January 1946 was the capstone of Executive action. It established
the National Intelligence Authority, the Central Intelligence Group,
and the position of the Director of Central Intelligence.
Nearly two years of study and discussion preceded the issu-
ance of the Directive. While a number of different approaches were
advocated, the need for a fully coordinated intelligence system was
never questioned.
The influence of the Presidential Directive of 22 January 1946
on what was eventually enacted in the foreign intelligcnce section of
the National Security Act of 1947 cannot be overemphasized.
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Background "Principles"
In October of 1944 Donovan, by now a General, presented
President Roosevelt with a document entitled "The Basis for a
Permanent United States Foreign Intelligence Service. " The need,
as seen by General Donovan, was an organization "which will procure
intelligence both by overt and covert methods and will at the same
time provide intelligence guidance, determine national intelligence
objectives, and correlate the intelligence material collected by all
Government agencies. "19 General Donovan formulated ten governing
principles in this presentation:
"That there should be a central, overall Foreign
Intelligence Service which (except for specialized intelli-
gence pertinent to the operations of the armed services
and certain other Government agencies) could serve
objectively and impartially the needs of the diplomatic,
military, economic, and propaganda service of the
Government.
"That such a Service should not operate clandes-
tine intelligence within the United States.
"That it should have no policy function and should
not be identified with any law-enforcing agency either at
home or abroad.
"That the operations of such a Service should be
primarily the collection, analysis, and dissemination of
intelligence on the policy or strategy level.
"That such a Service should be under a highly
qualified Director, appointed by the President, and be
administered under Presidential direction.
"That, subject to the approval of the President,
the policy of such a Service should be determined by the
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Director, with the advice and assistance of a board on
which the Department of State and the Armed Services
should be represented.
"That such a Service, charged with collecting
intelligence affecting national interests and defense,
should have its own means of communication and should
be responsible for all secret activities, such as:
(a) Secret intelligence
(b) Counter-espionage
(c) Crypto-analysis
(d) Clandestine subversive
operations
"That such a Service be operated on both vouchered
and unvouchered funds.
"That such a Service have a staff of specialists,
professionally trained in analysis of intelligence and
possessing a high degree of linguistic, regional, or
functional competence to evaluate incoming intelligence,
to make special reports, and to provide guidance for the
collecting branches of the Agency.
"It is not necessary to create a new agency. The
nucleus of such an organization already exists in the
Office of Strategic Services. "
The document was returned to General Donovan on 31 October 1944
with a comment that an adviser had informed the President that a
better and cheaper intelligence system was possible. However,
there was also an accompanying request that General Donovan con-
tinue his work on a post-war intelligence organization.
In keeping xith the President's request, General Donovan
submitted a more detailed plan to the President. In transmittal,
Donovan recommended that "... intelligence control be returned to
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the supervision of the President (with a) central authority reporting
directly to you (the President), with responsibility to frame intelli-
gence objectives and to collect and coordinate the intelligence
material required by the Executive Branch in planning and carrying
out national policy and strategy. "20
The plan took the form of a draft directive and incorporated
the principles General Donovan had earlier prescribed and several
additional functions and duties including: "Coordination of the functions
of all intelligence agencies of the Government... ; collection, either
directly or through existing Government departments and agencies,
of pertinent information... ; procurement, training, and supervision
of its intelligence personnel; subversive operations abroad, and
determination of policies for and coordination of facilities essential
to the collection of information. ?21
Certain administrative authorities were also included in the
Donovan Plan, "to employ necessary personnel and make provision
for necessary supplies, facilities, and services ' (and) to provide for
the (Agency's) internal organization and management... in such man-
ner as its Director may determine. " 22
Joint Chiefs' Consideration
The Donovan plan of 18 November 1944 was distributed to
various Cabinet officials and the Joint Chiefs. On 24 January 1945,
the Donovan plan and an alternate proposal by the Joint Intelligence
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Committee were covered in a report of the Joint Strategic Survey
Committee to the Joint Chiefs. 23
Approximately a month after the war had ended, the recom-
mendations in that report were incorporated into a Joint Chiefs of
Staff report. 24
The Joint Chiefs disagreed with Donovan's concept that the
centralized service should exist under the direct supervision of the
President. They felt that this would "over-centralize the National
Intelligence Service and place it at such a level that it would control
the operation of departmental intelligence agencies without responsi-
bility, either individually or collectively to the heads of departments
concerned."25
The structure recommended by the Joint Chiefs included a
National Intelligence Authority (NIA) composed of the Secretaries of
State, War, and Navy and a representative of the Joint Chiefs of Staff.
The Authority was to he responsible for overall intelligence planning
and development as well as the inspection and coordination of all
Federal intelligence activities. It was to assure the most effective
accomplishment of the intelligence mission as it relates to national
security. A Central Intcilir once Agency with a Director appointed by
the President was to be responsible to the NIA and assist in its mission.
An Intelligence Advisory Board made up of the heads of the principal
military and civilian agencies having functions related to the national
security was to advise the Director of Central Intelligence.
Sf, ell
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With one exception, an independent budget for the National
Intelligence Authority, the substance of the Joint Chiefs' report
was to be eventually recommended to the President by the Secretaries
of State, War, and Navy.
Secretaries of State, War, and Navy Consideration
To General Donovan the task of central intelligence was to
assure that "... the formulation of national policy both in its political
and military aspects is influenced and determined by knowledge (or
ignorance) of the aims, capabilities, intentions, and policies of
other nations. '26 Consideration by the customers, the Secretaries
of State, War, and Navy, was needed before further progress could
be made.
Secretary of Navy
Following the release of the Joint Chiefs' report, Secretary of
the Navy, James Forrestal, in a memorandum to the Secretary of War,
dated 13 October 1945, commented upon subjects of mutual interest
including: "Joint Intetligence. The Joint Chiefs of Staff, as you know,
made a recommendation to the President for a national intelligence
organization, the general outline of which provides for intelligence
supervision by the War, State, and Navy Departments, with a director
charged with the working responsibility functioning under these indi-
viduals as a group. I think this is a subject which should have our close
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attention. The Joint Chiefs of Staff paper seerris to me soundly con-
ceived and, if you agree, I think we should push it vigorously at the
White House. "
Secretary of War
Assistant Secretary Robert Lovett was placed in charge of a
committee in the War Department to study the matter. After consider-
ing the opinions of a number of people experienced in wartime intelli-
gence, 27 the Lovett Committee submitted a report 28 to the Secretary
of War for a centralized national intelligence organization similar
to that which had been recommended by the Joint Chiefs six weeks
previously.
Secretary of State
As a parallel development and in keeping with his preeminence
in the field of foreign affairs, the Secretary of State was directed by
the President to "take the lead in developing the comprehensive and
coordinated foreign intelligence program for all Federal agencies
concerned with that type of activity. . . through the creation of an inter-
departmental group, which would formulate plans for (the President's)
approval. "29 The Secretary of State submitted his plan to the. Secretaries
of War and Navy on 10 December 1945. 30
The State plan provided for a National Intelligence Authority
consisting of the Secretary of State (Chairman) and the Secretaries of
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War and Navy. I-leads of other departments and agencies would be
subject to call to participate in matters of special interest to them.
While the State plan did not preclude "centralized intelligence
operations" its primary emphasis was on interdepartmental committees
and organization. It did not envisage an independent agency with a
separate budget. This approach was advanced as one which would
". . . avoid publicity and... reduce competition among the central agency
31
and the intelligence organizations of existing departments and agencies."
The State plan fitted a group, not an agency, concept. Under
it, if the Authority determined that a centralized intelligence opera-
tion was necessary the Authority would appoint an executive and hold
him responsible for the effective conduct of the operation. Operational
support would be shared with ".. , personnel (including the Executive),
funds and facilities... provided by the departments and agencies par-
ticipating in the operation, in amounts and proportions agreed by
them and approved by the Authority, based upon the relative respon-
,,32
sibilities and capabilities of the participating departments and agencies.
Recommendations to the President
On 7 January 194( the Secretaries of State, War, and Navy
jointly recommended that the President establish a National Intelligence
Authority and a Central Intelligence Group. 33 The recommendation
was identical to the Joint Strategic Survey Committee report which had
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 been submitted almost a year earlier to the Joint Chiefs with one
major exception: the Secretaries did not recommend an independent
budget. While an independent budget had been basic to the proposals
advocated by the Secretary of War and Navy, the apprehensions
advanced by the Department of State prevailed and "it seemed to be
the consensus... of the three Secretaries that an independent budget
should be avoided for security reasons. 34 Funds for the National
Intelligence Authority were to be provided by the participating
departments in: amounts and proportion agreed upon by the members
of the Authority. Within the limits of funds made available, the
Director of Central Intelligence was to "employ necessary personnel
and make provisions for necessary supplies, facilities and services. 1135
Presidential Directive
The National Intelligence Authority, the office of the Director
of Central Intelligence and the Central Intelligence Group were
established by Presidential Directive on 22 January 1946. The Direc-
tive was substantially similar to the Secretaries' proposal although
it contained no specific reference to the collection of intelligence by
the Director. It has been suggested that this function was omitted
solely to avoid mention of intelligence collection in a published docu_
ment. 36
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?ic.~J~11...
COPY
THE WI-IITE HOUSE WASIIINGTON January 22, 1946
To The Secretary of State,
The Secretary of War, and
The Secretary of the Navy.
1. It is my desire, and I hereby direct, that all. Federal foreign
intelligence activities be planned, developed and coordinated so as to
assure the most effective accomplishment of the intelligence mission
related to the national security. I hereby designate you, together with
another person to be named by me as my personal representative, as
the National Intelligence Authority to accomplish this purpose.
2. Within the limits of available appropriations, you shall each
from time to time assign persons and facilities from your respective
Departments, which persons shall collectively form a Central Intelli-
gence Group and shall, under the direction of a Director of Central
Intelligence, assist the National Intelligence Authority. The Director
of Central Intelligence shall be designated by me, shall be responsible
to the National Intelligence Authority, and shall sit as a non-voting
member thereof.
3. Subject to the existing law, and to the direction and control
of the National Intelligence Authority, the Director of Central Intelli-
gence shall:
a. Accomplish the correlation and evaluation of
intelligence relating to the national security, and the
appropriate dissemination within the Government of the
resulting strategic and national policy intelligence. In
so doing, full use shall be made of the staff and facilities
of the intelligence agencies of your Departments.
b. Plan for the coordination of such of the activities
of the intelligence agencies of your Departments as relate
to the national security and recommend to the National
Intelligence Authority the establish-iient of such over-all
policies and objectives as will assure the most effective
accomplishment of the national intelligence mission.
c. Perform, for the benefit of said intelligence
agencies, such services of common concern as the National
Intelligence Authority determines can be more efficiently
accompli shed centrally.
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d. Perform such other functions and duties related
to intelligence affecting the national security as the Presi-
dent and the National Intelligence Authority may from time
to time direct.
4. No police, law enforcement or internal security functions
shall be exercised under`'his directive.
5. Such intelligence received by the intelligence agencies of
your Departments as may be designated by the National Intelligence
Authority shall be freely available to the Director of Central Intelli-
gence for correlation, evaluation or dissemination. To the extent
approved by the National Intelligence Authority, the operations of
said intelligence agencies shall be open to inspection by the Director
of Central Intelligence in connection with planning functions.
6. The existing intelligence agencies of your Departments
shall continue to collect, evaluate, correlate and disseminate depart-
mental intelligence.
7. The Director of Central Intelligence shall be advised by
an Intelligence Advisory Board consisting of the heads (or their
representatives) of the principal military and civilian intelligence
agencies of the Government having functions related to national
security, as determined by the National Intelligence Authority.
8. Within the scope of existing law and Presidential direc-
tives, other departments and agencies of the executive branch of
the Federal Government shall furnish such intelligence information
relating to the national security as is in their possession, and as
the Director of Central Intelligence may from time to time request
pursuant to regulations of the National Intelligence Authority.
9. Nothing herein shall be construed to authorize the making
of investigations inside the continental limits of the United States and
its possessions, except as provided by law and Presidential directives.
10. In the conduct of their activities the National Intelligence
Authority and the Director of Central Intelligence shall be responsible
for fully protecting intelligence sources and methods.
Sincerely yours,
Is/ Harry Truman
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Achievement through Executive Action
The 22 January 1946 Directive was a major breakthrough for
the concept of a Government-wide foreign intelligence system. Respon-
sibility for national intelligence had been clearly fixed on the office
of the Director of Central Intelligence. It provided for direction and
control from the President's chief advisers in international and mili-
tary affairs. It provided a focal point for the correlation of foreign
intelligence, its proper coordination and dissemination, and for all
other needs affecting national intelligence. Clearly, central intelli-
gence as an entity now existed.
The Directive was a compromise of diverse views which had
been articulated for two rears within the Executive branch. While the
fledgling organization was deprived of certain attributes of independence,
i. e. independent budget and authority to hire personnel, its charter
was sufficiently flexible to permit it to "feel its evolutionary way and
handle obstacles only in such order as it deemed best. "37 The details
of the organization were to be worked out in the first instance by the
officials responsible for its performance. 38
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CHAPTER II. LEGISLATIVE PROPOSALS - EXECUTIVE BRANCH
As early as 1944, legislation for a permanent post-war intelligence
organization was seen as desirable. 39 In 1946 the Secretaries of State,
War, and Navy believed that the preparation of organizational plans to
"include drafts of all necessary legislation"40 should be the first order
of business following the establishment of central intelligence by Executive
action.
GIG Consideration
Six months following the Presidential directive, Clark M. Clifford,
Special Assistant to the President, was reviewing draft enabling legisla-
tion for a proposed Central Intelligence Agency (CIA). General Hoyt S.
Vandenberg, USAAF, then the Director of Central Intelligence, in trans-
mitting a revision of the draft to Mr. Clifford, wrote that the "current
draft has been expanded in the light of the experiences of the last ten
months and the administrative facilities available. However, it does not
materially change interdepartmental relationships conceived in the original
Presidential letter of January 22, 1946. ?41
The CIG's coi-aprehensive legislation proposal contained a state-
ment of policy that "foreign intelligence activities, functions, and
services of the Government be fully coordinated, and, when determined
in accordance with the provisions of this act, be operated centrally for
the accomplishment of the national intelligence mission of the United
 ?1 r-'
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States. " The GIG proposal referred to programs for collecting;
"... foreign intelligence information by any and all means deemed
effective, " disseminating "... to the President and the appropriate
departments and agencies of the Federal Government of the intelli-
gence produced, " and for planning and development ". . . of all
foreign intelligence activities of the Federal Government.
Further, the National Intelligence Authority was to be statutorily
prescribed and the Director of Central Intelligence was to sit as a
non-voting member. The CIA was to provide the Secretariat. This
followed the structural relationships established under the 22 January
1946 Directive.
The GIG proposal also sought administrative authority sufficient
to the autonomy envisaged. The authority to hire personnel directly
and an independent budget had been denied CIG. These were important
deficiencies to be overcome. 42 Other key elements were:
a. appointment of the Director from either civilian or military
life at $15, 000 per annum (equivalent to the salary estab-
lished by the Atomic Energy Act of 1946 for the Comnisioners).
b. a Deputy Director who "shall be authorized to sign such
letters, papers, and documents, and to perform such
other duties as may be directed by the Director... and to
act as Director in the Director's absence..:
c. authority to employ personnel including retired personnel
of the Armed Forces.
Jtwvf ~,.~ ,
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t~Vzit_;
d. authority for the DCl "in his absolute discretion to,
notwithstanding the provisions of other law, -terminate
the employment of personnel in the interest of the United
State... " (The latter was in keeping with a similar
provision in the Department of State- Appropriation Act
of 1947, also 50 USC 1156, 1940, Secretaries of War and
Navy, P. L. 79-470.)
e. control of information in line with Section 10 of the Atomic
Energy Act of 1946. (At the time the Department of
Justice was also reviewing a proposal to revise the
espionage laws as recommended by the War and Navy
Departments and the FBI. )
f. appropriations authority.
The proposed draft was fully representative of a permanent authoriza-
tion for a Central. Intelligence Agency. As events transpired, provisions
relating to CIA's functional responsibility as well as its structural
relationship within the Executive Branch would be enacted in 1947, while
administrative authorities, for the most part, would be enacted in
1949.
Comprehensive enabling legislation for a Central Intelligence
Agency was subordinated iu early 1947 to the more pressing need of
obtaining unification of the military departments. Unification legislation
vas accorded the highest priority within the Executive Branch.
 e i-
T'=
26
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The concept of central intelligence was not overlooked in the
unification proposals, however. President Truman's second plan for
military unification envisioned a single defense establishment served
by a number of coordinating agencies, some for inter-military
departmental coordination and others for military-civilian coordination. 43
The existing National Intelligence Authority was seen as the mechanism
for linking military and foreign policy and it followed that its subordi-
nate agency, CIG, would serve as mechanism for coordinating civilian-
military intelligence.
A team for drafting the National Security Act of 1947 was
assembled within the White I-louse. It included Mr. Clark M. Clifford
(Special Counsel to the President), Mr. Charles S. Murphy (Adminis-
trative Assistant to the President), Vice Admiral Forrest P. Sherman
(Deputy Chief for Naval Operations), and Major General Lauris
Norstad (Director of Plans and Operations, War Department General
Staff). The team's prime objective was unification. While there was
support for prescribing the Central Intelligence Agency in the National
Security Act, it was felt the administrative authorities for the Agency
should be dealt with in separate legislation.
The second White House draft of the proposed National Security
Act of 1947, dated 25 January 19417, covered the CIA as follows:
"SEC. 302 (a) There is hereby established under the
National Security Council a Central Intelligence Agency with a
Director of Central Intelligence, who shall be the head thereof,
to be appointed from civilian or military life by the President,
 Approved For Release 2003/05/27': bleu- $tP64-00709R000300090001-0
by and with the advice and consent of the Senate. The
Director shall receive compensation at the rate of
$15, 000 per annum.
(b) Subject to existing law, and to the direction
and control of the National Security Council, the Central
Intelligence Agency shall perform foreign intelligence
functions related to the national security. 44
(c) Effective when the Director first appointed
under subsection (a) has taken office -
(1) The functions of the National Intelligence
Authority (established by Directive of the President,
dated January 22, 1946) are transferred to the
National Security Council, and such Authority shall
cease to exist.
(2) The functions of the Director of Central
Intelligence, and the functions, personnel, property,
and records of the Central Intelligence Group,
established under such directive are transferred to
the Director of Central Intelligence appointed under
this Act and to the Central Intelligence Agency, and
such Group shall cease to exist. Any unexpended
balances of appropriations, allocations, or other
funds available or authorized to be made available
in like manner for expenditure by the Agency. "
In a 28 January 1947 memorandum to Mr. Clark M. Clifford,
General Vandenberg summarized earlier exchanges of views on
language for CIA in the National Security Act as "(a) setting forth a
working basis for a Central Intelligence Agency to the merger; and
(b) eliminating from the proposed National Security Act any and all
controversial material insofar as it referred to central intelligence
which might in any way hamper the successful passage of the Act. "
While deferring to the higher priority of military unification,
General Vandenberg urged the incorporation of three additional
provisions in the final draft. First, "... the DCI shall serve as the
JEVf fit-
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adviser to the Council on all matters pertaining to national intelligence
and in this capacity, will attend meetings of the Council at its discretion
but shall take no part in the decisions thereof. (It is recalled that
the 22 January 1946 Directive provided that the Director sit as a
non-voting member of the National Intelligence Authority.) Second,
rather than merely transferring the functions of the DCI and CIG under
the Presidential Directive to the DCI and CIA under the proposed
legislation through incorporation by reference, General Vandenberg
recommended making at least a specific statement on CIA's functions
such as: "... the CIA shall coordinate the Nation's foreign intelligence
functions which can be efficiently performed centrally. " An earlier
draft had included a provision that CIA "... subject to existing law...
shall perform foreign intelligence functions related to the national
security. " However, this provision was dropped because of the
confusion surrounding the meaning of the introductory qualification
"subject to existing law.
Third, General Vandenberg wanted a Deputy Director of Central
Intelligence to be appointed from civilian or military life by the
President and with the advice and consent of the Senate "... to provide
continuity of action in the absence of the Director or should there be a
vacancy in that office. The Deputy Director should be a man of such
caliber and stature as adequately to serve as operations deputy to
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While General Vandenberg's recommendations were not included
in the proposed "National Security Act of 1947, " the points were
discussed. Excerpts follow from a memorandum45 covering the
discussion at the time:
DCI as Intelligence Adviser
In a CIG conference preceding the first meeting
with the White House drafters--
"... the Director also indicated his desire to have
included a provision that he would serve as the adviser to
the Council on National Dcfense (later changed to National
Security Council) on matters pertaining to intelligence,
and that in this capacity he would attend all meetings of
the Council. It was agreed that the Director should take
no part in the decisions of the Council as this was a policy-
making body, and it had long been agreed that central
intelligence should not be involved in policy making.
At the White I-louse meeting with the drafters--
"... General Vandenberg stated that he was strongly
opposed to the Central Intelligence Agency or its director
participating in policy decisions on any matter. However,
he felt that he should be present at meetings of the Council.
To this General Norstad voiced serious exceptions, as he
felt that the Council was already too big. He thought that
the Director should not even be present as an observer,
as this had proven to be cumbersome and unworkable at
meetings of the Joint Chiefs of Staff. Admiral Sherman
suggested, however, that the Director should normally
be present at meetings of the Council, in its discretion.
General Vandenberg concurred in this, as did General
Norstad, and it was accepted with the additional proviso
that the joint Chiefs of Staff would also attend meetings
at the discretion of the Council. " -
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".. the Army-Navy conferees felt that the position
of the Director as the Ingelligence Adviser was inherent
in the position itself, and that it would not be proper-to
provide by law that the head of an agency under the Council
should sit on the Council. "
Specific Statement of Functions of CIA
"... General Vandenberg indicated the difficulties
which he had had in having to go to the N. I. A. on so many
problems. He felt that the difficulties of his position would
be multiplied, as he would have to ask policy guidance and
direction from the Council on National Defense, which
consists of many more members than the N. I. A. He was
assured that the intent of the act was that the CIA would
operate independently and come under the Council only
on such specific measures as the Council may, from time
to tinge, desire to direct. It would not be necessary for
the Agency to ask continual approval from the Council.
"...It was the final sense of the meeting that the Director
of Central Intelligence should report to the Council on
National Defense. As General Vandenberg indicated it would
be necessary to report somewhere; that neither the
President nor he was anxious to have another agency
"free wheeling" around the Government. However, it was
thought that the agency should have sufficient power to
perform its own functions without it being necessary to
have specific approval from the Council on each action. "
Presidential Recommenclation to Congress
it read as follows:
Title II - coordination for National Security as it pertained to CIA -
Congress a draft entitled "National Security Act of 1947. " Under
On February 26, 1947, President Truman submitted to the
"SF.C. 202. (a) There is hereby established under the National
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Security Council a Central Intelligence Agency, with a
Director of Central Intelligence, who shall be the head
thereof, to be appointed by the President. The D6ector
shall receive compensation at the rate of $14, 000 a year.
(b) Any commissioned officer of the United States
Army, the United States Navy, or the United States Air
Force may be appointed to the office of Director; and his
appointment to, acceptance of, and service in, such office
shall in no way affect any status, office, rank, or grade
he may occupy or hold in the United States Army, the
United States Navy, or the United States Air Force, or
any emolument, perquisite, right, privilege, or benefit
incident to or arising out of any such status, office, rank,
or grade. Any such commissioned officer on the active
list shall, while serving in the office of Director, receive
the military pay and allowances payable to a commissioned
officer of his grade and length of service and shall be paid,
from any funds available to defray the expenses of the Agency,
annual compensation at a rate equal to the amount by which
$14, 000 exceeds the amount of his annual military pay and
allowances.
(c) Effective when the Director first appointed under
subsection (a) has taken office-
(1) The functions of the National Intelligence
Authority (11 Fed. Reg. 1337, 1339, February 5, 1946)
are transferred to the National Security Council, and
such Authority shall cease to exist.
(2) The functions of the Director of Central
Intelligence and the functions, personnel, property,
and records of the Central Intelligence Group are
transferred to the Director of Central Intelligence
appointed under this Act and to the Central Intelligence
Agency respectively, and such Group shall cease to
exist. Any unexpended balances of appropriations,
allocations, or other funds available are authorized
to be made available in like manner for expenditure
by the Agency. "
In retrospect, it is recalled that the White House drafting
committee's prime concern was the unification aspects of the legislation.
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In this connection, there was a general feeling that any unnecessary
enlargement of the CIA provision would lead to controversy and
would affect the legislative processing of the National Security Act
of 1947. In addition, it was believed that detailed administrative
provisions for CIA could not be adequately presented as part of the
National Security Act of 1947, simply because of the lack of time.
As events transpired, however, Congress was to delve into
the CIA provisions at some length. In fact, during the floor discussion
of the bill in the I-louse chamber, Mr. Carter Manasco, (D. , Alabama),
a member of the House Committee which marked up the bill, said:
This section on central intelligence was given more study by our
43
Subcommittee and the Full Committee than any other section of the bill. "
vL'Ui L
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CHAPTER III. CONGRESSIONAL CONSIDERATION OF THE
NATIONAL SECURITY ACT OF 1947
Background
On 26 February 1947 the President transmitted a draft bill
entitled "National Security Act of 1947" to the President of the Senate pro
te.npore and the Speaker of the House of Representatives and recommended
its enactment by the 80th Congress. Prior to this date consideration
had been given in both Houses to the need for a Government-wide
foreign intelligence service and the structure it should take.
House: During the 79th Congress, the House Committee on
Military Affairs had issued "A report on the System Currently Employed
in the Collection, Evalua`ion, and Dissemination of Intelligence
Affecting the War Potential of the United States. "49 The report
recognized the need for strong intelligence as the "nation's final line
of defense, " and made nine very specific reco.nmendations:
Recom-nendation 1: That the National Intelligence Authority,
established on January 22, 1946, by Presidential directive,
be authorized by act of Congress.
Recommendation 2: That the National Intelligence Authority
shall consist of the Secretaries of State, War, and the Navy,
or deputies for intelligence.
Recommendation 3: That the Central Intelligence Group receive
its appropriations direct from the Congress.
Recommendation 4: That the Central Intelligence Group has
complete control over its own personnel.
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v! ,
Recommendation 5: That the Director of the Central
Intelligence Group be a civilian appointed for a preliminary
term of two years and a permanent term of 10 years,
at a salary of at least $12, 000 a year.
Recommendation 6: That the Director of the Central
Intelligence Group be appointed by the President, by
and with the consent of.the Senate.
Recommendation 7: That the Director of Central Intelli-
gence shall (1) accomplish the correlation and evaluation
of intelligence relating to the national security, and the
appropriate dissemination within the Government of the
resulting strategic and national policy intelligence, and
in so doing making full use of the staff and facilities of
the intelligence agencies already existing in the various
Government departments; (2) plan for the coordination
of such of the activities of the intelligence agencies of
the various Government departments as relate to the
national security and recommend to the National Intelli-
gence Authority the. establishment of such over-all
policies and objectives as will assure the most effective
accomplishment of the national intelligence mission;
(3) perform, for the benefit of said intelligence agencies,
such services of common concern related directly to
coordination, correlation, evaluation, and dissemination as
the National Intelligence Authority shall determine can
be more efficiently accomplished centrally; (4) perform
such other similar functions and duties related to intelli-
gence affecting the national security as the Congress
and the National Intelligence Authority may from time to
time direct. It is specifically understood that the Director
of Central Intelligence shall not undertake operations for
the collection of intelligence. (Emphasis added)
Recommendation 8: That Paragraphs 2, 4, 5, 6, 7, 8, 9,
and 10 of the Presidential directive of January 22, 1946,
relating to the establishment of a National Intelligence
Authority be enacted into law, with such revisions in
wording as may seem necessary.
Recommendation 9: That the Army be requested sympa-
thetically to examine further the question of the establish-
ment of an Intelligence Corps for the training, development,
and assignment of especially qualified officers.
34
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Senate: In terns of legislative processing during the 79th Congress,
the Senate got further than the House. The Senate Committee on Military
Affairs reported out a bill proposing a National Security Council outside
of the national defense establishment and a Central Intelligence Agency
for the purpose of coordinating nilitary and civilian programs, policies,
50
and plans in the foreign intelligence field. This bill was introduced as
S. 2044 by Senators Lister Hill (D., Ala.), Elbert D. Thomas (D. , Utah),
and Warren R. Austin (R., Vt.) on 9 April 1946, pursuant to President
Truman's unification message of 19 December 1945.
The need for "national intelligence" was underscored by General
George C. Marshall in hearings before the Senate Committee on Military
"Intelligence relates to purpose as well as to military
capacity to carry out that purpose. The point, I think, is we
should know as much as we possibly can of the possible intent
and the capability of any other country in the world. . . Prior
to entering the war we had little more than what a military
attache could learn at a dinner, more or less, over the coffee
cups... Today I think we see clearly we must know what the
other fellow is planning to do, in our own defense... The
important point is that the necessity applies equally outside
of the arrned forces. It includes the State Department and
other functions of the Government, and it should therefore be
correlated on that level. 51
While S. 2044 was favorably acted upon by the Senate Military
Affairs Committee, the Senate Committee on Naval Affairs, which had
concurrent jurisdiction, did not report it out.
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Thus, the crucible for central intelligence was carried over
to the first session of the 80th Congress in the Presidential draft of
the National Security Act of 1947. Title I of the draft concerned the
"National Defense Establishment. " Title II, entitled "Coordination
for National Security, " provided for the National Security Council and
the Central Intelligence Agency. 52
Legislative Processing
Faced with a complicated and vital legislative task related to
the nation's future security, Congress deliberated on the National
Security Act of 1947 for nearly five months.
Senate: Introduction of a bill incorporating the President's
draft was temporarily delayed while the Senate determined which
standing committee would have jurisdiction over the bill. The Committee
on Expenditures in the Executive Departments (now the Committee on
Government Operations) questioned the decision of the President pro
tempore, Arthur Vandenburg (R., Mich.) in referring the measure
to the Armed Services Committee, 53 The Senate upheld the President
pro tempore's ruling on 3 'March 1947 and Senator Chan Gurney (R., S. D. ),
Chairman of the Senate Armed Services Committee, then introduced
the measure as S. 758. The Senate Armed Services Committee held
hearings for ten weeks, went into executive session on 20 May, and
reported out an amended version of S. 758 on 5 June. 54 The bill was
considered by the Senate on 7 and 9 July and was approved by voice vote.
 Approved For Release 2003/0~':r4 RDP84-00709R000300090001-0
House: The measure eventually reported to the House was
introduced on 28 February 1947 as H. R. 4214 by Chairman Clare
Hoffman (R. , Mich.) of the Committee on Expenditures in the Execu-
tive Departments (now the Committee on Government Operations).
This bill was the subject of hearings which commenced on 2 April
1947 and concluded on 1 July. A favorable report was issued on 16
July. On 19 July H. R. 4214 was considered by the House, amended
and passed by a voice vote. Immediately following this action,, the
House passed S. 758 after substituting the provisions of its own
Conference: S. 758 emerged from Conference Committee on
24 July 1947. The Senate accepted the Conference Report the same
day by a voice vote and the House followed suit on the 25th of July.
Legislative Record on CIA
The legislative record on CIA in the National Security Act of
1947 consists of testimony before committees, committee reports,'
floor discussions, amendments proposed and the provisions which
were ultimately adopted. Overall, this record identifies the issues
raised, the alternatives considered, and the reasons or explanations
for the choices or compromises ultimately approved.
Of the many factors having a bearing on the type of legislative
record made on CIA, two seem especially deserving of mention. First,
security inhibited the full development of the public legislative record
{ 1
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on CIA. In opposing an amendment on the floor in the House, Mr.
Manasco (D. , Ala.) underscored this handicap by revealing that
"Many witnesses appeared before our Committee. We were sworn
to secrecy, and I hesitate to even discuss this section, because I
am afraid that I may say something, because the Congressional
Record is a public record, and divulge something here that we
received in that committee that would give aid and comfort to any
55
potential enemy we have. "
Second, CIA was only one aspect of a complicated and contro-
versial legislative proposal dealing primarily with military unification.
The controversy surrounding the "National Military Establishment"
also engulfed other provisions of the Act, including CIA. This,
however, is not meant to imply the absence of independent reserva-
tions concerning the CIA.
Considering all of these factors, a fairly extensive public
record was made on the CIA section. Further, the reasons and
rationale for CIA related legislative action is, for the most part,
wrong in assuming that extensive deliberation could be avoided by
The White House drafting team was correct in estimating that
the CIA section had the potentiality for being controversial but it was
readily identifiable in the public record.
reducing the CIA section down to "minimal provisions." Congressional
interest in providing for a CIA was clearly underestimated. Probably
SECRE
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t L.
the most striking aspect of the Congressional interest in CIA was the
overwhelming support for institutionalizing the Agency In statute as a
positive step towards providing for the nation's future security.
With this introduction the legislative record on the CIA section
in the National Security Act of 1947 is developed and organized according
to the five dominant legislative themes which evolved:
(1) Need for a Central Intelligence Agency;
(2) Position of CIA within the Executive Branch;
(3) Statutory specification of functions for CIA;
(4) Civilian status of the Director of Central Intelligence; and
(5) Relationship to internal security.
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CHAPTER IV. NEED FOR CENTRAL INTELLIGENCE
The need for institutionalizing central intelligence was established
in certain committee findings during the 79th Congress and was to be
stressed again during the 80th Congress.
In anticipation of hearings on S. 758, Senator Thomas56 made a
major address to the Senate on the "President's" bill and emphasized
the need for a Central Intelligence Agency:57
"Neither the War Department nor the Navy Department
had an intelligence service adequate to our needs when the war
broke out. The intelligence agencies in each Department
operated separately for the most part, except for the exchange
of routine military and naval attache reports. There was no
real integration of intelligence at the operating level, and no
established liaison with the State Department. Though funds
were inadequate, there was much duplication of effort by the
services.
"The war brought substantial appropriations and
drastic reorganization. The Office of Strategic Services was
finally set up under the jurisdiction of the Joint Chiefs of Staff,
and acted as the central coordinating agency in intelligence
matters. Later, the Joint Intelligence Committee and its
subcommittees made further provision for the coordination
of intelligence activities. In spite of these and other changes,
however, much unnecessary duplication existed in the intelli-
gence services of the State, War, and Navy Departments.
The significance of the collection, analysis, and evaluation of
information concerning foreign countries is no less great now than.
it was during the war. The effective conduct of both foreign
policy and military policy is dependent on the possession of full,
? accurate, and skillfully analyzed information concerning foreign
countries. With our present world-wide sphere of international
responsibility and our position among the world powers, we
need the most efficient intelligence system that can be devised.
Organization, of course, is not the whole story. We do know,
however, that there is no returning to the prewar system,
where the War, Navy and State Departments went their respec-
tive ways. We have now a central intelligence agency estab-
lished by executive action. Provision for such an agency should
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be made in permanent legislation. It seems entirely logical
that such an agency should be placed in the framework of any
agency that might be set up to coordinate military and foreign
policies. "
The theme so strongly stated by Senator Thomas was reiterated
and amplified before the Senate Armed Services Committee during the
hearing on S. 758: (Excerpts follow)
Vice Admiral Forrest Sherman (member of the White House
drafting team and detailed by the Secretary of Navy to work
with the Military Affairs Committee on the Common Defense
Act of 1946): "1 consider the Central Intelligence Agency to
be a vital necessity under present world conditions, Its
necessity will increase with our greater international respon-
sibilities as the power of sudden attack is amplified by further
developments in long range weapons and weapons of mass
destruction. x158
Lt. General Hoyt S. Vandenberg (Director of Central Intelli-
gence):->9 I sincerely urge adoption of the intelligence provisions
of this bill. Section 202 will enable us to do our share in main-
taining the national security, It will form a firm basis on which
we can construct the finest intelligence service in the world.
In my opinion, a strong intelligence system is equally
if not more essential in peace than in war. Upon us has fallen
leadership in world affairs. The oceans have shrunk until
today both Europe and Asia border the United States almost as
do Canada and Mexico. The interests, intentions, and capabili-
ties of the various nations on these land masses must be fully
known to our national policy makers. We must have this
intelligence if we are to be forewarned against possible acts of
agression, and if we are to be armed aginst disaster in
an era of atomic warfare. "I think it can be said without successful challenge that
before Pearl Harbor we did not have-an intelligence service
in this country comparable to that of Great Britain or France
or Russia or Germany or Japan. We did not have one because
the people of the United States would not accept it, It was felt
that there was so:nething un-American about espionage and
even about intelligence generally. There was a feeling that
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all that was necessary to win a war-if there ever were to be
another war-was an ability to shoot straight. One of the
great prewar fallacies was the common misconception that,
if the Japanese should challenge us in the Pacific, our
armed services would be able to handle the problem in a
matter of a few months at most.
"All intelligence is not sinister, not is it an invidious
type of work. But before the Second World War, our
intelligence services had left largely untapped the great
open sources of information upon which roughly 80 percent
of intelligence should normally he based. I mean such
things as books, magazines, technical and scientific sur-
veys, photographs, commercial analyses, newspapers, and
radio broadcasts, and general information from people with
a knowledge of affairs abroad. What weakened our position
further was that those of our intelligence services which did
dabble in any of these sources failed to coordinate their
results with each other.
"The Joint Congressional Committee to Investigate
We are incorporating many of these into our present thinking...
made some very sound recommendations for its improvement..
regarding the shortcomings of our intelligence system and
the Pearl Harbor Attack reached many pertinent conclusions
"The committee showed that some very significant
efficiently be performed centrally.
field commanders. But, over and above these failures were
others, perhaps more serious, which went to the very struc-
ture of our intelligence organizations. I am talking now of the
failure to exploit obvious sources; the failure to coordinate
the collection and dissemination of intelligence; the failure
to centralize intelligence functions of common concern to more
than one department of the Government, which could more .
some of the evaluated information was not passed on to the
information had not been correctly evaluated. It found that
"In the testimony which has preceded mine in support
possibly ask the question asked by the Pearl Harbor Committee:
ization, so that no future congressional committee can
intelligence, there must be coordination and some central-
Establishment and its policies on the other. Similarly with
political policies one one hand and our National Defense
coordination between the State Department and our foreign
others- there has been shown an awareness of the need for
of this bill- by the Secretaries of War and the Navy, General
Eisenhower, Admiral Nimitz, and General Spaatz, among
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'Why, with some of the finest intelligence available in our
history - why was it possible for a Pearl Harbor to occur?'
"The committee recommended that intelligence work
have centralization of authority and clear-cut allocation of
responsibility. It found specific fault with the system of
dissemination of intelligence to those who had vital need of
it. It stated that '. . . the security of the Nation can be insured
only through continuity of service and centralization of
responsibility in those charged with handling intelligence.
"It found that there is no substitute for imagination and
resourcefulness on the part of intelligence personnel, and
that part of the failure in this respect was '... the failure
to accord to intelligence work the important and significant
role which it deserves. '
"The committee declared that '... efficient intelli-
gence services are just as essential in time of peace as in
war. '
"All of these findings and recommendations have my
hearty concurrence. In the Central Intelligence Group, and
in its successor which this bill creates, must be found the
answer to the prevention of another Pearl Harbor.
"As the United States found itself suddenly projected
into a global war, immense gaps in our knowledge became
readily apparent. The word 'intelligence' quickly took a
fashionable connotation. Each new wartime agency - as well
as many of the older departments - soon blossomed out with
intelligence staffs of their own, each producing a mass of
largely uncoordinated information. The resultant competi-
tion for funds and specialized personnel was a monumental
example of waste.
"The War and Navy Departments developed full
political and economic intelligence staffs, as did the Research
and Analysis Division of the OSS. The Board of Economic
Warfare and its successor, the Foreign Economic Adminis-
tration, also delved deeply into fields of economic intelli-
gence. Not content with staffs in Washington, they established
subsidiary staffs in London and then followed these up with
other units on the Continent.
"When, during the war, for example, officials requested
a report on the steel industry in Japan or the economic conditions
in the Netherlands East Indies, they had the reports of the
Board of Economic Warfare, G-2, ONI, and the OSS from which
to choose. Because these agencies had competed to secure the
best personnel, it was necessary for each of them to back up
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its experts by asserting that its particular reports were the
best available, and that the others might well be disregarded.
"As General Marshall stated in testifying on the uni-
fication bill before the Senate Military Affairs, Committee
last year, ' ... Prior to entering the war, we had little more
than what a military attache could learn at a dinner, more
or less over the coffee cups.
"From this start, we suddenly had intelligence
springing up everywhere. But nowhere was its collection,
production, or dissemination fully coordinated- not even in
the armed forces. General Marshall pointed this out in his
testimony when he mentioned ' ... the difficulty we had in even
developing a Joint Intelligence Committee. That would seem
to be a very simple thing to do, but it was not at all. '
"There are great masses of information available to
us in peace as in war. With our wartime experience behind us,
we know now where to look for.material, as well as for what
to look. I
"The transition from war to peace does not change
the necessity for coordination of the collection, production,
and dissemination of the increasingly vast quantities of
foreign-intelligence information that are becoming available.
This coordination the Central Intelligence Agency will supply...
"President Roosevelt established the Office of
Strategic Services for the purpose of gathering together men
of exceptional background and ability who could operate in
the field of national, rather than departmental, intelligence.
In weighing the merits of the OSS, one should remember that
it came late into the field. It was a stopgap. Overnight, it
was given a function to perform that the British, for instance,
had been developing since the days of Queen Elizabeth. When
one considers these facts, the work of the OSS was quite remark-
able and its known failures must be weighed against its successes.
Moreover, it marked a crucial turning point in the development
of United States intelligence. We are now attempting to profit
by their experiences and mistakes.
"Having attained its present international position of
importance and power in an unstable world, the United States
should not, in my opinion, find itself again confronted with the
necessity of developing its plans and policies on the basis of
intelligence collected, compiled, and interpreted by some for-
eign government. It is common knowledge that we found our-
selves in just that position at the beginning of World War II...
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"For months we had to rely blindly and trustingly
.on the superior intelligence system of the British. Our successes
prove that this trust was generally well placed. However, in
matters so vital to a Nation having the responsibilities of a.
world power, the United States should never again have to go
hat in hand, begging any foreign government for the eyes-
the foreign intelligence - with which to see, We should be
self-sufficient. The interests of others may not be our
interests...
"The need for our own coordinated intelligence pro-
gram has.been recognized in most quarters. The Pearl Harbor
disaster dramatized that need and stopgap measures were
adopted. As the war drew to a close, the President directed
the Joint Chiefs of Staff to study the problem and draft recom-
mendations for the future.
"By the assignment of primary fields of intelligence
responsibilities, we are - in the fields of collection, production,
and dissemination - preventing overlapping functions - that is,
eliminating duplicate roles and missions, and eliminating
duplicate services in carrying out these functions,"
House Committee
Testimony before the House Committee on Expenditures in the
Executive Departments provided additional insights into the need for
structuring foreign intelligence functions on a Government-wide basis.
General Carl Spaatz, Commanding General, Army Air Force:
"The bill provides the basic elements of security of which we
may mention five.... Fourth, correct intelligence. The bill
provides for enlargement of our capacity to know the capabili-
ties of our possible enemies, how they can attack us, arid
with what. Each service will retain its own technical intelli-
gence with its own trained attaches abroad. The CIA will
coordinate information from all the services, as well as
from other branches of the Government. " 0
Fleet Admiral Chester Nirnitz: "The bill will establish a Central
Intelligence Agency with the responsibility for collection of
information from all available sources, evaluation of that
information and dissemination thereof. This Agency is
intended to secure complete coverage of the wide field of
intelligence and should minimize duplication. The bill recog-
nizes that military intelligence is a coniposit of authenticated
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and evaluated information covering not only the armed forces
establishment of a possible enemy but also his industrial
capacity, racial traits, religious beliefs, and other related
aspects. "61
Secretary James V. Forrestal (Secretary of the Navy; 6Z listed
the CIA second among the essentials of the bill, after the
National Security Council): "The need for that (CIA) should be
obvious to all of us. ,, 63
Rep. W. J. Dorn (D., S.C.): "With regard to the Central
Intelligence Agency - I may be wrong, but I have always felt
that if Admiral Kimmel had had proper intelligence from
Washington the attack on Pearl Harbor would not have occurred,
or at least we would have been able to meet it better. From
your experience, do you think that this Central Intelligence
Agency -alone would warrant passage of this bill?"
Vice Admiral Arthur Radford: "Of course, I think it is most
important. Actually it is in existence now. It is already functioning. "
Committee Reports
The Senate Committee report on S. 758 concluded: "To meet
the future with confidence, we must make certain... that a Central
Intelligence Agency collects and analyzes that mass of information
without which the Government cannot either maintain peace or wage
war successfully. ,,65
The House Committee report on H. R. 4214 was equally clear
i.nd succinct in its conclusion: "The testimony received by your com-
committee discloses an urgent need for a continuous program of close
coordination between our domestic, foreign and military policies so
that we may always be able to appraise our commitments as a Nation
in the light of our resources and capabilities. This, your committee
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feels, can be accomplished by the Central Intelligence Agency...
In order that the Council (National Security Council), in its delibera-
tions and advice to the President, may have available adequate infor-
mation, there is provided a permanent organization under the Council,
66
which will furnish that information."
report were re-echoed in floor statements during the Senate's dis-
Senate: ' The Senate Armed Service Committee findings and
Floor Discussion
cussion of S. 758:
Senator Chan Gurney (R. , S. D.) (Chairman of the Armed
Services Committee): "As an important adjunct to the National
Security Council there is a provision for a Central Intelligence
Agency, which fills a long recognized demand for accurate
information upon which important deci Tons, relating to
foreign military policy can be based. "
Senator Raymond Baldwin (R. , Conn.): Under the Council
there is established a central intelligence agency to provide
coordinated, adequate intelligence for all Government agencies
concerned with national security. When one reads the record
of the past war in regard to that field it is found that there
was much to be desired in the way intelligence was covered, and
there was great conflict about it. I say nothing here in depre-
cation of the men who were engaged in the intelligence service,
because some remarkable and extremely courageous things
were done. Nevertheless, we demonstrated' from our experience
the need of a central intelligence agency.. .
Senator Lister Hill (D. , Ala. ): "It would (S. 758) provide
security measures at all times, rather than only when hostili-
ties threaten. It creates... a central intelligence agency
which is so essential for the Government to maintain peace
and without which the Government cannot wage war success-
fully. ,69
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House. The need for centralizing national intelligence drew
wide support from many members of the House during the floor
discussion of H. R. 4214:
Rep. James Wadsworth (R., N.Y.): "This (H. R. 4214 and the instru-
mentalities it establishes) links the military policy with foreign
policy, all measured by our resources and the potentialities
of other people. "70
Rep. Fred Busbey (R., Ill.) (although troubled with certain
features of the CIA section): "I am not opposed to a central intelli-
gence agency. ... You remember Pearl Harbor. They had intelli-
gence, but it was not correlated and evaluated correctly. "71
Rep. Walter Andrews (R., N. Y.): "On the next level above the
National Military Establishment there is provided the National
Security Council with the President as chairman, which will
effectively coordinate our domestic and foreign policies in the
light of sound information furnished by the Central Intelligence
Agency. "72
Rep. Robert Sikes (D., Fla. ): "During the intervening years
between wars we have never had a proper balance between our
foreign and military policies... We have never been fully informed
of the capabilities, potential or intent of likely enemies... This
is another time when we can well say, 'Remember Pearl Harbor.' 1173
Rep. Dewey Short (R., Mo.): "Mr. Chairman, on every score
and by every count we should vote adequate funds for... our
Central Intelligence - which has been lamentably weak
These (including Central Intelligence) are the things above all
others which will guarantee our security. "74
Rep. W. J. Bryan Dorn (D., S. C.): "Mr. Chairman, one of the
most important features of this bill is the Central Intelligence
Agency. I would like for you to turn back with me this afternoon
to the most terrible period preceding World War II. Why, you had
most of the newspapers and people in this country thinking that
Adolf Hitler was a comic character, that a war in Europe could
not last through the winter I remember those editorials quite
well - that Germany would not last through the winter of 1939.
I remember officers of the Navy coming back from observation
posts in the Pacific and saying that the Japanese could not
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.last 3 weeks in a war with America. The Government in
Washington was stunned and shocked beyond belief when it
suddenly realized that Paris and France would fall.
"An important Member of the other body, who is
still serving in that body, said that a few bombs on Tokyo
would knock them out of the war. What a woeful lack of
intelligence as to the potential power of our enemies.
People were saying that Mussolini would not attack; that
he was only bluffing. Around the world there was a total
lack of knowledge of those forces that were marshalling
to destroy American democracy. I tell you gentlemen of
the committee that your central intelligence agency is a
very important part of this bill. "75
Rep. Chet Holifield (D., Calif.): "I want to read to you some
of the conclusions of the Pearl Harbor Committee, as follows.
Their conclusions were: 'That'the Hawaiian Command failed
to discharge their responsibility in the light of the warnings
received from Washington, and other information possessed
by them and the principal command by mutual cooperations.
(B) They failed to integrate and coordinate their facilities
for defense, to alert properly the Army and Navy Estab-
lishments in Hawaii, particularly in the line of warning
and intelligence available to them during the period Novem-
ber 27 to December 7, 1941. They failed to effect liaison on
a basis adequately designed to acquaint each of them with
the operations of the other, which was necessary to their
joint security, and to exchange fully all significant intelli-
gence, and they also failed to appreciate and evaluate the
significance of the intelligence and other information available
to them. "'.6
Rep. Robert A. Harness (R., Ind.): "Nov a word about the
Central Intelligence Agency. When such an organization was
first proposed I confess I had some fear and doubt about it.
Along with other members of the Committee, I insisted
that the scope and authority of this Agency be carefully
defined and limited. Please bear in mind that this is a
bold departure from American tradition. This country has
never before officially resorted to the collection of secret
and strategic information in time of peace as an announced
and fixed policy. Nov, however, I am convinced that such
an Agency as we are now considering is essential to our
national security. "77
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Rep. Wadsworth (R., N.Y.): ". . . In addition, under the
Council there would be another element which is to advise
the Council, subject to regulations made by the Council,
in the field of Intelligence, in the foreign field; and there is
established a central intelligence agency subject to the
Council headed by a director. The function of that agency is
to constitute itself as a gathering point for information com-
ing from all over the world through all kinds of channels
concerning the potential strength of other nations and their
political intentions. There is nothing secret about that.
Every nation in the world is doing the same thing. But it
must be remembered that the Central Intelligence Agency is
subject to the Council and does not act independently. It
is the agency for the collecting and dissemination of informa-
tion which will help the President and the Council to adopt
wise and effective policies. So with the information of that
sort concerning other nations and information coming in
with respect,to our own resources, both of which are available
to the Council and President, we will have for the first time
in our history a piece of machinery that should work and it
is high time that we have it. We have never had it before.
During this last war all sorts of devices were resorted to,
obviously in great haste, to accomplish a thing like this.
You may remember the huge number of special committees,
organizations and agencies set up by Executive Order in an
attempt to catch up with the target. We have learned as a
result of the war that we should have some permanent organi-
zation, and that is the one proposed in this bill. rr
Rep. Manasco (D. , Ala. ): "If we had had a strong central
intelligence organization, in all probability we would never
had had the attack on Pearl Harbor; there might not have
been a World War II... I hope the committee will support
the provision in the bill, because the future security of our
country in a large measure depends upon the intelligence we
get. Most of it can be gathered without clandestine intelli-
gence, but some of it must be of necessity clandestine
intelligence. The things we say here today, the language we
change, might endanger the lives of some American citizens
in the future. "79
Thus, there was a consensus of agreement, almost reaching to
unanimous proportions, that the concept of central intelligence should
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be ratified and embodied into statute. However, beyond this point
of almost total accord, differences of opinion would arise as more
specific consideration relating to CIA was undertaken.
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CHAPTER V. POSITION WITHIN EXECUTIVE BRANCH
The position that should be prescribed for the CIA within the
Executive Branch was understandably of considerable interest. This
was the very ?iarrow of the central intelligence concept and an antece-
dent to its disposition was an appreciation of the "supra-depart nental"
nature of the relationships which had been established within the
"intelligence community" under the National Intelligence Authority.
It is recalled that the 22 January 1946 Presidential Directive 80
placed the Director of Central Intelligence and the Central Intelligence
Group under the control of the President's chief advisors in international
and military affairs, the Secretaries of State, War, and Navy, and the
personal representative of the President. The DCI was a non-voting
member of the NIA.
Following this pattern, the proposed National Security Act of
1947 simply established ".. , under the National Security Council a
Central Intelligence Agency with a Director of Central Intelligence,
of the National Intelligence Authority. . . to the National Security Council. 1181
f These functions were to plan, develop, and coordinate all Federal
foreign intelligence activities "... to assure the most effective accomplish-
ment of the intelligence fission related to the nationar security. 1182
The functions of the DCI and the CIG under the NIA were transferred
also to the DCI and the CIA Act,
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In pursuing the meaning of these relationships three major
questions were considered. First, could central intelligence operate
effectively by reporting to a* group (National Security Council) rather
than to an individual? Second, would satisfactory relationships be
maintained between CIA and the departments and their intelligence
agencies? Third, what relationship should exist between the DCI
and the NSC?
NSC Relationship
House. During Committee hearings in the House, Representa-
tive Walter Judd (R. , Minn.) pursued the respective merits of the CIA
reporting to the NSC or to an individual:
Rep. Judd: "I have concern as to whether the intelligence
agency provided in the bill is given anywhere near the impor-
tance it deserves... it seems to be a joint and hydra-headed
agency which will weaken our intelligence rather than
strengthen it.
Dr. Vannevar Rush (Director of the Office of Emergency
Manaement, Scientific Research and Development).-
0 ". , . The
Central Intelligence Agency provided for (in the bill) links
the military establishment and the State Department, and
hence cannot logically be placed under the Secretary of
National Defense. It is a joint matter. It might be reporting
directly to the President... "
Rep. Judd: "I have never seen a hydra-headed organization
which functions as well as one headed by a single man. If we
were caught flat-footed without proper intelligence at the out-
break of another war, it might be disastrous. "83
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 Approved For Release 2003/05/ 84-00709R000300090001-0 54
Rep_ Judd: "Regarding the CIA, do you think that it ought
to be under the National Security Council, or directly under
the Secretary of National Defense, on a par with the National
Security Resources Board, the Joint Research and Develop-
ment Board, the National Security Resources Board. The
CIA is put under the National Security Council so that it
has a dozen heads. It seems to me that this is so important
that it ought to be on a par with those other agencies. "
Vice Admiral Radford: "I feel that the CIA should be under
the National Security Council. "
Rep. Judd: "You don't think that its reports will make the
rounds and never get any action?"
Vice Admiral Radford: "I hardly think so. I think its handling
of reports gln be controlled by, the Director. I am sure it
would be. "
Senate. In a statement before the Senate Committee, Mr.
Allen W. Dulles, who made extraordinary contributions to the success
of the OSS and who eventually was to become the first civilian to be
appointed Director of Central Intelligence, questioned the desirability
of the Director reporting to a large National Security Council:85
"... this (National Security) Council will have at least
six members, and possibly more, subject to Presidential
appointments. From its composition it will be largely
military although the Secretary of State will be a member.
If precedent is any guide, it seems unlikely, in view of the
burden of work upon all the members of this Council, that it
will prove to be an effective working body which will meet
frequently, or which could give much supervisory attention
to a central intelligence agency. It would seem preferable
that the Chief of Central Intelligence should report, as at
present, to a smaller body, of which the Secretary of State
would be the chairman, and which would include the Secretary
of National Defense, and a representative of the President,
with the right reserved to the Secretaries of State and of
National Defense to be represented on this small board by
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deputies, who should have at least the rank of Assistant
Secretary. And this board must really meet and assume
the responsibility for advising and counseling the Direc-
tor of Intelligence, and assure the proper liaison between
the Agency and these two Departments and the Executive. "
However, under no circumstances did Mr. Dulles want CIA
to be organized under an individual policy maker; 86
"The State Department, irrespective of the form in
which the Central Intelligence Agency is cast, will collect
and process its own information as a basis for the day-by-
day conduct of its work. The armed services intelligence
agencies will do likewise. But for the proper judging of the
situation in any foreign country it is important that informa-
tion should be processed by an agency whose duty it is to
weigh facts, and to draw conclusions from those facts,
without having either the facts or the conclusions warped
by the inevitable and even proper prejudices of the men whose
duty it is to determine policy and who, having once
determined a policy, are too likely to be blind to any facts
which might tend to prove the policy to be faulty. The
Central Intelligence Agency should have nothing to do with
policy. It should try to get at the hard facts on which others
must determine policy. The warnings which might well have
pointed to the attack on Pearl Harbor were largely discounted
by those who had already concluded that the Japanese must
inevitably strike elsewhere. The warnings which reportedly
came to Hitler of our invasion of North Africa were laughed
aside. Hitler thought he knew we didn't have the ships to do
it. It is impossible to provide any system which will be
proof against the human frailty of intellectual stubbornness.
Every individual suffers from that. All we can do is to see
that we have created the best possible mechanism to get the
unvarnished facts before the policy makers, and to get it
there in time. "
Chairman Gurney of the Senate Armed Services Committee
became particularly interested in whether the CIA should report to
the National Security Council or to an individual, particularly the
Secretary of National Defense. In line with this interest he arranged
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for Mr. Charles S. Cheston, a former Assistant Director of the
Office of Strategic Services, to meet with Admiral Roscoe Hillen-
koetter, who succeeded General Vandenberg as DCI on I May 1947.
Mr. Cheston's viewpoint was subsequently made a matter
of record in the Senate hearings:87
"... It has been amply demonstrated that problems of
peace and war in modern times require total intelligence.
Each of the principal departments and agencies of Govern-
ment requires information for the determination of basic
questions of policy, the collection and analysis of which
are entirely outside the scope of its own operations. It
does not solve the problem to create a kind of clearing house
for information gathered in the ordinary operations of the
several departments. What is needed is an effective,
integrated, single agency with clearly defined duties and
authority to analyze and correlate information from all
sources and, wherever necessary, to supplement existing
methods of collection of information, Such an agency must
serve all principal departments of the Government and also
bring together the full and comprehensive information upon
which national policy must be based. It should not supplant
existing intelligence units within the several departments,
Every effort should be made to improve and strengthen these
units wherever possible. The problem is national and not
departmental. And it will not be solved by having the policies
and operations of such an agency determined by a committee
of Cabinet members, whose primary duty is to discharge
the full-time responsibilities of their own offices. "
Following a meeting with Mr. Cheston in Philadelphia on
Memorial Day, Admiral Hillenkoetter wrote a letter to Senator Gurney,
from which the following is excerpted:
"The third point (advocated by Mr. Cheston) is that the
Director should report to an individual rather than a committee.
As I previously stated before the Senate Appropriations
Committee, I feel that this is a matter to be determined by
the Congress rather than by rue. On purely theoretical
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grounds, it would, of course, be best to report to one indi-
vidual rather than a group. However, I can work with a
Council equally well, and see no great difference in either
solution that Congress may determine. There may be some
question as to the wisdom of having the Director of Central
Intelligence report to the Secretary of National Defense.
This, in effect, might be considered as placing the Agency
within the military establishment, which would not, in all
probability, be satisfactory to the State Department. They
have a great interest in the operations of the Agency, and
their contributions in the intelligence field are particularly
important in time of peace, when the Foreign Service can
operate throughout the world.
"As General Donovan stated in his memorandum to
you of 7 May.1947, intelligence 'must serve the diplomatic
as well as the military and naval arms. ' This can be best
done outside the military establishment. As General Donovan
stated further, '. Since the nature of it: work requires it to
have status, it should be independent of any Department of
the Government (since it is obliged to serve all and must be
free of the natural'bias on operating Departments).' "
When this matter came to the Senate floor, Senator Robertson
of the Senate Armed Services Committee proposed an amendment
elevating the Secretary of National Security (Secretary of Defense) to
a position "... where he will be over the National Security Council,
the Central Intelligence Agency, and the National Security Resources
Board, and over the entire military establishment as well. "88 The
emphasis behind this amendment, however, was to make the Secretary
of Defense the coordinator of national security and immediately under
the President. It was only collaterally related to central intelligence.
Senator Gurney, in opposing the amendment, said, "We do not believe
that the (Secretary of Defense) should in any way control, by means of
a superior position, the conclusions which emanate from the Security
Council... "89 The amendment was defeated.
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Relationship with Intelligence Community
While the CIA was established under the National Security Coun-
cil as proposed by Administration, Congressional consideration helped
to illuminate the supra-departmental nature of the Agency's function
as much as it did to ratify earlier Executive Branch action.
The second concern relating to the establishment of the CIA
under the National Security Council was whether this arrangement
would support satisfactory relationships between the CIA and the depart-
ments and their. intelligence agencies.. This concern was brought out
in the following colloquy during the Senate Committee hearings:'
Senator Tydings (D., Md.): "... when you get down to the
Central Intelligence Agency, which certainly is one of the
most important of all the functions set forth in the bill, I
notice that it reports directly to the President and does not
seem to have any line running to the. War Department, or the
Navy Department, or to the Secretary for Air. And I was
wondering if that rather excluded position, you might say,
was a wholesome thing. It seems to me that Central Intelli-
gence Agency ought to have more direct contact with the
Army and the Navy and the Air Force; and as I see it on the
chart here, it is pretty well set aside and goes only to the
President. What is the reason for that?"
Admiral Sherman: "Well, sir, this diagram shows the pri-
mary control of the Central Intelligence Agency through the
National Security Council which, of course, is responsible
to the President. But, of course, the Central Intelligence
Agency, by its detailed directive, takes information in from
the military services and also supplies them with information.
"In other words, it is a staff at ency and controlled
through the National Security Council, which is supported by
the military services, and in turn, supports them.
Senator Tydings: "It seems to me that of course they would
diffuse such information as a matter of orderly procedure
 Approved For Release 2003/05/?x - DP84-00709R000300090001-0 59
to the Army, Navy, and Air Force, as they collected the
information and as they deemed it pertinent. But I would
feel a little more secure about it if there were a line
running from that agency to the War Department, the Navy
Department, and the Air Force, rather than have it go up
through the President and back again. Because the Presi-
dent is a rather busy man, and while he has control over
it, one of its functions, it seems to me, ought to be to
have a closer tie-in with the three services than the chart
indicates."
relationships. "
Naval Intelligence, and there are a good many other cross-
Agency, who collaborates very closely with Military and
Secretary of National Defense, the Central Intelligence
diagram. Actually, the Security Council, placed directly
under it, has members of the three departments, the
Admiral Sherman: "Well, sir, that is the trouble with the
Senator Tydings: "I realize that, but even so, I think intelli-
gence is about as important a part of running a war as there
is, as I know you will agree. And it is rather set off there
by itself, and is only under the President; which is all right
for general direction purposes, but I do not feel satisfied
in having it over there without some lines running to the War
Department, the Navy Department, and the Air Force, even
though that might follow and they might do it anyhow!'
Cn.
three departments, and to those others."
so on, extending from the Central Intelligence Agency to the
chart, we might show a line of collaboration and service and
Admiral Sherman: "Well, in a further development of this
Senator Tydings: "To the Joint Chiefs of Staff anyway. "
the present time. "
a matter of fact. We have a Central Intelligence (man) in
the Policy Council of the Research and Development Board at
Admiral Sherman: "They serve the Joint Chiefs of Staff, as
Senator Tydings: "If you ever do another chart, will you do
me the favor of connecting that up with those three departments
and with the Joint Chiefs of Staff? Because it looks like it is
set up in that way to advise the President, more than to advise
the services and the Joint Chiefs of Staff; which, of course,
is not the intention of it at all, in my opinion. "
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Admiral Sherman: "We tried, in this particular chart, to
show only the primary line of control, with the exception
of the dotted line from the President to the Joint Chiefs of
Staff, which is there for constitutional reasons. "
Senator Tydings: "Well, I hope that my comments will
cause us to find some way that we can make sure that
someone will offer an amendment from the War Department
or the Navy Department that the Intelligence Agency is to
have direct tie-in with the Joint Chiefs and the Army,
Navy, and Air Force. Otherwise, we may have another
Pearl Harbor controversy, with the question arising,
'Who got the information?" And the reply, 'It was not
transmitted.' That is one thing that should not happen
again. And as this is set up, it would lend the layman
the opinion that it was more or less detached, rather than
an integral part of the three services."
Senator Tydings: "Admiral, that is an awfully short bit
of explanation, under the caption "Central Intelligence
Agency, " the way it is set up here, separately, to be
appointed by the President, and superseding the services
now run by the Army and the Navy, I respectfully submit
to you and to General Norstad that it might be wise to put
an amendment in there, in order to make certain that the
thing is understood; that this Central Intelligence Agency
shall service the three departments and the Joint Chiefs
of Staff, and have some tie-in with the three departments,
rather than to leave it hanging up there on a limb all off
by itself. I do not think that would change anything mate-
rially, but it would clarify it, and make it plain that we are
setting up something for the purposes for which we conceive
it tc be set up. "
Admiral Sherman: "Well, sir, I would like to make a comment
on the language as to the Central Intelligence Agency. At
one time in the drafting we considered completely covering
the Central Intelligence Agency in the manner that it should
be covered by law. "
Senator Tydingj "Admiral, my point is simply this: that
under the wording as to the Central Intelligence Agency which
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SECRET
begins on page 20 and ends at the top of page 22, it deals more
or less with consolidation and not with the duties that devolve
upon that office. It seems to me there is a void in the bill
that ought to be eliminated.
Admiral Sherman: "Well, we considered the matter of trying
to cover the Central Intelligence Agency adequately, and we
found that that matter, in itself, was going to be a matter of
legislation of considerable scope and importance.
Senator Tyding "A separate bill?"
Admiral Sherman: "A separate bill. And after consultation
with General Vandenberg, we felt it was better in this legis-
lation only to show the relationship of the Central Intelligence
Agency to the National Security Council, and then leave to
separate legislation the task of,a full and thorough develop-
ment of the Central Intelligence Agency. "
Senator Tydings: "Well, now, for the record, is it safe for
this Committee to assume that during this session it is likely
that a bill will come along dealing with the Central Intelli-
gence Agency in the particulars we have under discussion?"
Admiral Sherman: "It is my understanding that that will
take place. "
The Chairman: "How about that, General Vandenberg? "
General Vandenberg: "The enabling act is prepared, but
we do not want to submit that until we have reason for it. "
Later, General Vandenberg reviewed for the Senate committee
i) the relationships which had been developed between the Director of
Central Intelligence and the intelligence community under the 22 January
1946 Presidential directive:91
"In order to perform his prescribed functions, the
Director of Central Intelligence must keep in close and inti-
mate contact with the departmental intelligence agencies of
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L
62.
the Government. To provide formal machinery for this pur-
pose, the President's Directive established an Intelligence
Advisory Board. to advise the Director. The permanent mem-
bers of this Board are the Directors of Intelligence of the
State, War and Navy Departments and the Air Force. Pro-
vision is made, moreover, to invite the heads of other
intelligence agencies to sit as members of the Advisory Board
on all matters which would affect their agencies. In this
manner, the Board serves to furnish the Director with the
benefits of the knowledge, advice, experience, viewpoints
and over-all requirements of the departments and their
intelligence agencies. "
The responsibility to support the departments and their intelli-
gence agencies was a function of the DCI under the President's
Directive of 22 January 1946 and was carried over into the CIA section
of the President's proposal by providing that "the functions of the
Director of Central Intelligence and the functions... of the Central
Intelligence Group are transferred to the Director of Central Intelli-
gence appointed under this act and to the Central Intelligence Agency
respectively. However, in keeping with the House Committee's view92
duties in the interest of clarity and simplicity... " the CIA section
was amended to specify these supporting functions. This provided
the basis for the following colloquy on the I-louse floor:93
Rep. Kersten (R. , Wis.): "It seems to me from what the
gentleman has said that the Central Intelligence Agency is one
of the very important parts of this entire set-up. I wish to
ask the gentleman if there is a definite coordination provided
for between that Agency and, say the Department of State?
For I feel that certaiii information of the Agency would affect
the activities of the entire system. "
S C~RFT
. that it is better legislative practice to spell out such (CIA's)
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Re. Wadsworth (l:. , N. Y. ): "The gentleman is correct.
May I point out that under the provisions of the bill the
Central Intelligence Agency in effect must cooperate with
all the agencies of the Government, including the State De-
partment. It is the gathering point of information that may
come in from any department of the Government with re-
spect to the foreign field, including the State Department,
of course; including the War Department, through G-2;
including the Navy Department, through ONI. That informa-
tion is gathered into the central agency to be evaluated by
Central Intelligence and then disseminated to those agencies
of Government that may be interested in some portion of it. "
hCI Relationship with NSC
The third and final consideration relating to structural rela=
tio-_ships concerned the position of the Director with respect to the
National Security Council. A s background it is recalled that prior
to submission of the proposal act to the Congress, General Vanden-
berg stroungly opposed participation by either CIA or its Director in
policy decisions but felt that there should be a provision providing
for the Director's presence at the meeting of the Council. The 22
January 1946 Directive provided that the Director sit on the National
Intelligence Authority as a non-voting member. However, the draft-
iris tearry felt that the position of the Director as the intelligence
-.,!visor to the Council was inherent in the position itself, and that it
;could be improper to provide by late that the head of the Agency, under
$ill. Council, should sit on the Council. 94 While being present at the
inoe?ting of the Council did not necessarily constitute sitting "on" the
>iiny net =* .a? co -mm icatic to hiaa from the Comptrv1Ier .
C-eaaral on tai urea subject.
The Comptrallex General notes Lhit Ica the eza trnent of
Ccatral lutslligance Agency legislation the General Acca ng -4 ice
'mss generally broadened the $ of and ~t m,az of ac itie3 of " moat "
Govvz rnent agaxt.:.ies 17ut that with the Contral I APIlig e Agency
a3 c read to ram only a voucher audit of vouc iered fuels and
no audit of cca$dentb f=.snds. Vie, thexclore. reco^3 ne..:ds "... a
chats e in the scar.~ of our a;idit : or:c at CLI ... by brcadeni ng the
General Ace ntd 3 C tire's audit, while recognizing that "July broaden
ioy of cur audit activiti-3 shed =,ot iacluaa an oval :on of the .ntel-
iigenee activities of the Agency." Mr. .3lday.. speaking for his Sub
cazn=ittee in hi3 letter of .3uae I3th. reoorri endn that the Agency
consider vlith L%r3 Car, troller General "a broadsx type of a;ztiit than
i3 pre ently acco~ its ie'd." _
T3 haatox7 and farts in this mate: are as follows: Section
`
101,b) of the Central l..te13ig~9 .~gsucy ~;ct of 1949F ?rovi.des
is G .e amna made available to heL -A-3-- icy -=?y be
c_c , r de i Wit!hOut r era, d to r'~e oas i s of la .;r and
r -?,lation3 relati.na to the exoaniutura of Covern..rex t
rd3; a=d for cb,;3ct;3 of a ; ~a3i ant;_ ?, rsor is zy,
or corer ;lcl nata: o. ouch anii:~res to be accounted
for sol,ly oa Via c3rti.iicatn 03 the irt`.ctoi and eye-y
:;%Ich c_.:tiz Cate 34a l dcamnad a :,%&ilcirnt Voucher for
i tr a.-nount thoreia ccrtiiie6.,:
I!j
r
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' t . Y .
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in View of tha clop a into elation of all of this A e~ucy' a acti vzti * a. I
b isyy it coui3 nave ba n Corr ;tly ar u that all of the fxwda of the
vea'C7 saxovlci be e--LP;-used a.dar the auth.oxity rf :lzls 3ecbicma so that
nc a c:i L.jem wo'.ia be sz~bj ~ to outside audit. l.owever. it hau been
cur practice. as yogi I MOW, to put as muds of our ex"OendituroS on the
her ed side as is pr esih3e and still protect r aitive activities.
t,
vouc
1ch e=ea iiruraa have be en subje. to a voucher audit by repreeenta-
Uves tho , r i :>ceouatin_I i ce. All othax e.` esditures have
bsea subject to the strict t kind of in orra ccaArol and auditing'by
4-tar own ,:Audit StaH and Comptroller. The proportion as betweezi
voucher--td and CC den has varied from year to year but the
a very-113 ban been a qb 46 peT cent vos tiered. to .55 p* r cant-
l would be pleased oo continuo with the" procedt v; however,
ii thex e is a bradc^ning of the C,-n.,--al Acc ng CLice; s review into
a comprehensive audit of the v deer d side. we will encowttex Serious
problerw% as such an examination would neeen arily exteZad into the field
of iatelliience so% ces and= etbhada unless its scope were limited at
or direction.
The Coal l,'utellige a Agent is a partic la---ly sensitive arm
of the ex.-.cutive branch of the Goverrmens in the general #Ials1 oL foreign
relati.or-'s, and I wCuld net wish its use.-: ass to be l=paired in aay way
by fa t a body rep-;ble to the le ia:ive branch or from
the 1 illative bxaacli a meas?,re of control or a=. ervi.aion detri eutal
to Its effztriv sa. AceOx0,13&3y. r felt I should bmit heae faits to
you. AA t e lama tima. I could wuggest t', t I c;iaC-4ss th matte. with
the COw:Pt-oilex C...neral, 4l:Ir. Campbellas weU as Mr. Fiisiay, ?i you
a prove. to detsrnina whethax a form of aidit of so-called vou#hered
to the General Acc 3iag ace and to dir. Uay
;:mda oatiasas *oxy
and his hubcommitte can be a iced Upon +.~it1--out impairing the powers
a:ut o rities 4 h rr a:d to enuitures for c dentaal p oeea
o ad
-which we have found esseu:iai to our o?pe:ati.oxis.
if you aurae, I s= 1 proceed to have such conversations a4 i
s? : r ~ s`t the no ulis to you without r;:acbing any Lo^zmitmerit ntil
0~ l 'r3'~r obtained your e .recur; ~n~e,
..0L--Ic a r el y.
Al lan ".fit. Du~.llci
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25 July 1959
The Honorable Paul J. Kilday
Chairman, Subcommittee on CIA
Committee on Armed Services
U. S. House of Representatives
Washington 25, D. C.
Dear Mr. Kilday:
I refer to your letter of 18 June 1959 and to our discussion
on 30 June 1959 with regard to your desire that I initiate a conference
with the Comptroller General to consider the possibility of a broader
type of audit in the Central Intelligence Agency by the General
Accounting Office.
This is an interim report to advise you that I have contacted
Mr. Campbell who, designated Mr. A. T. Samuelson to discuss this
matter with us initially. Colonel L. K. White, my Deputy Director
for Support, has had a meeting with Mr. Samuelson, and Mr. Campbell
and Mr. Samuelson have accepted my invitation to a briefing next week
in order to gain a better understanding of our activities and of the
problems inherent in the conduct of a comprehensive audit. After
this briefing and any other subsequent discussions which the Comptroller
General and I may feel necessary, I shall report further to you on this
matter.
Sincerely,
Allen W. Dulles
Director
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3 August 1959
The Honorable Paul J. Kilday
Chairman, Subcommittee on CIA
Committee on Armed Services
U. S. House of Representatives
Washington 25, D. C.
Dear Mr. Kilday:
. With further reference to my letter of 25 July 1959 in
connection with the relationship between the Central Intelligence
Agency and the General Accounting Office I should like to report
that Mr. Campbell, the Comptroller General, accompanied by
Mr. Keller, his General Counsel, and Mr. Samuelson, Director
of the Civil Accounting and Auditing Division, GAO, attended a
briefing of approximately three hours duration in my offices on
30 July 1959. This briefing included presentations by our most
senior officials who are responsible to me for the conduct of our
operations and financial activities.
Insofar as was possible within the time available, we gave
Mr. Campbell a full explanation of the activities of the entire Agency.
He indicated that the briefing was extremely helpful and that he would
be in touch with us again soon.
I shall keep you advised as to our progress.
Sincerely,
Allen W. Dulles
Director
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COMPTROLLER GENERAL OF THE UN D STATES
WASHINGTON 25
May 16, 190.1
Ho oruble Paul J. i ilday, Chairman
S~,ec?al Subcommittee.. Central intelligence Agency
Committee on Armed Services
House of Representatives'.
The General Ac osnting Office has made a review of selected activities
of the Central Intelligence Ate-..,:icy (CIA) for the purpose of determining w het'fer.
the scope of the audit of the General Accounting Office cbuld.i be expanded
s ffiziently to maize reasonably comprehensIve.evaluations of CIA activities that
would be helpful to the Congress.
This review was made pursuant to V- interest indicated by the Special. Sub-
commi_tee at an executive hearing in May 1959. Follo,Ang several meetings
between representatives of the General A: comtin4; Office and CIA, the Director
of Central Intelligence and the Comptroller General in. Cctober 1959 had an exchange
of correspondence concerning the audit and concerning restrictions on undertaking
reviews in the area of sen lava security operations. Various steps were taken by
CIA to place the General. Accounting Office in a position to adman a comprehensive
audit of the overt activities of CL's. It is our vi---,v, however,' that t. nder existing
security restrictions on our audit of CM actin. flies, we do not have sufficient access
to ma:;-- comprehensive reviews on a continuing basis that would be productive of
evaluations helpful to the Congress. .
l e limited our review to selected ave~-t activities as access to the covert
(confidential) acttvi s of C ~ was denied us. We have had no access whatsoever
to the Plans Coy.. onent, and we coot electively review and evaluate the activities-
of the Support Component beca:lfe the con:; d:ntial and ovez-i activities of t is compo-
r_ t arc integrated to such an extent that we cannot maize reasonably corapre-,--ansive
au: is. We have been given sufficient ac.:4ss to ma: e reasonably comp ensive
review-3 of : t:1s overt of the latclii nca Co :wo.^r_: nt, but such re ie:-rs, in
uCt
our ceinicn, will not be Productive of significant evaluations because we cannot
f asibly evaluate the extent to which needed overt information is available for
 / Collection or dote niedtFeoneed for the Intelligence Information sel selected 01-0
o ..I..c~ed for
collation and use in the production of intelligence reports. About 9o Percent
or the annual ex'-endiz res of tl'~e Intelligence Component relates to payroll. and
other con dual payments for personal set ices rendered in selecting on the
basis of personal judgment order broad guidelines established by the intelligence
community the specil.c information to be collected, collated, and used in t e
production of 4n`,ellig c reports.
Based on our review, we believe that (1) CIA is financing certain Library -
of Congress activities which substantially n"anscend CIA's interest and responsi-
bility for providing a centralized reference service as a service of common con-
cern to the intelligence community and (2) administrative controls over CLA,'3
covert field organization, the U. S. joint Publications Research Service, should
be stren hened. In addition, v;e have r=-testioned the arrangements under which
CIA is financing certain activities at the Department of State.
I\ o projects at the Library of Congress, the Monthly hidex of Russian Accessions
and the East European Accession lade., are being fin=ed through the operating
budgets of the Czfice of Central Refer--=-e. The budget of this office includes
$635, 000 to f' ce tese projects in fiscal year 1961. 'Ti e projects pr uce cations are primarily distributed to public and private research organizations
and iiararies in the United States and many foreign nations, including some in the
U. S. S. R. and its satellites. Th.-se projects, in our opinion, substantially transcend
CIA's interest and responsibility for providing a central reference facility as a
service of corm-non concern to ILe intelligence conic nIu.a it`y.
We have been advised by CIA that based on a review of the needs of the Intelli-
U ca community, it has been determined that the present published form of these
indexes is not essential for intelligence ;ni-.=poses., but, there are portions of the
research work that goys into the preparation of the indexes that CIA would viant to
continue, and the matter is under active consideration to determine vi t portion
of the related costs should continue to be financed by CLA.
Certain admi=-iistxative procedures pertinent to CIA's control over the activities
of its covet field orrranizat'on, the U. S. Joint Pt. )Hcations Research Service, sacul_d
be strengthened. We have been advised by CiA that changes are to be made which
vii1i strengthen these controls.
r
o projects at the C 2rt_ne t OS State, :e Natlo al Intelli ce Survey and
io ap-iiC Intel i ace, ar ' ,ring fin edd bCie r , rr n
u - are IJ' ~ Li1C~ u by C..~; t:~ G, 1311 irk C, eL~t'~nJ fULJ~ "c$'
'.
of the Cf ce Of Central Reference and the U1ce of 1-s-
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of the two offices include $2, 417, 000 to finance these projects in 1961. In
April 1951, we were advised by CIA that the par=ent of State and CIA have been
considering the possible transfer of these D :partme.n..t of State ac+~ivlties to Ciro
CIA presently has under co. side a.tion other matters raised by us cn these financing
arrangements, and we will furnish you with a supplementary le Uer when decision
has been reached t areon.
In as much as we cannot, is cur opinion, effectively a: compli;h any worthwhile
audit objectives on a continuing basis, we p3.an to discontinue our and of Cam.
activit: s.
We are prepared to discuss these matters ~:}pith you shr^u.ld you so desire.
A copy of this letter is being sent today to the Director of Central In t-alligence.
Sincerely yours,
/S/
Co Lpttoller General
of the United States
 Approved
0pY
ER 61-4.049
CO-N'iPTROLL It GENERAL ON THE UNITED STATES DD/S-61-1640
WASHINGTON 25
.133200
May 16, 1961
honorable Allen Du les, Director
Cenral Jnte?ligence Agcy
Dear Mr. Dulles:
The General Accounting Office has completed a review of selected overt
activities of the Central Intellib nce Agency. Based on this review, we believe
that under existing security restrictions on the General Accounting Office audit
of CIA activities, we do not have sufficient access to make comprehensive
reviews on a continuing basis that would be productive of evaluations helpful to
the Congress.
Our review of selected overt activities in the Intelligency Component dis-
closed certain matters that were brought to the attention of CIA officials, and
we v;; re advised by them that corrective action on these matters is to be taken,
or is presently under consideration by CM-
I wish to acimowledge the cooperation of CM. officials in taking various -
steps to place the General Accounting Office in a position to make a compre-
hesive audit of the overt activities of CLL..
Transmitted herewith is a copy of a letter sent today to the Chairman,
Special Sjjhcommittee, Central Intelligence Ab ncy, Committee on Armed
Services, House of Representatives., presenting the results of our review.
Sincerely yoi. s,
/6/
Comptroller General of
the United States
Aat Sent
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2--13320
ilmaacable Carl 'fiaac*s, Chaim a .
Cc itt>s ca Ar-....bd rxvicas
iiru" & ;~ra3 ti'i
'say lattar dated Nay 16, 1951, to Z able Yau1 1. X11da7,
L"Saira, Waaial SV34caitta4, Caotrsl I.'stslii~~
C ali am 1& 34rricaa, Hcu-w of ntati sa, us repmtzd
upon cvm roview of adll,etmd acti,ittci of C- ral 1mtm1t13*a"
N. 9' ('U)- for t2ka o - tax is?n ebist a2 L~ areas
th* wit of the trail Acccsinti:...3 Cs2fi a c*ntld Sa ~z, ad -
cu2fIci=t!y- to mAka rtNasrs-all ccmVr-.,~i' arraltratizs of CIA
actiytti3m. Za thin lattsac tra ;3?atad that tsar `,.:~ =iutiz
8scri*,7 z'"t~ ictico ia4 ca t 1-3ior7, era of
t r.~~ ' i~ w *_ 13 T blt. k is a? a rtcc aiaGr3 tat 9a
it cf yl i Id s~, to 3 ii.^.::--3 t:t ~ i~tas :31's.3t &r 3
o -tea 121 '-tee: ? t~ c-~- r-~ if t
(l) ;.- '~ i r a.,er*_i?{ d `r~ two Dir3tt=, '
.~i~ra cartifi:od b7 fife
Diractor sa ins of a ccifidan cial, 2:crraordinzz-7, or T3eac7
n.aturs, juch ex?anditaras vary not sub}sct'to aYax+ nation by tho
Accauntin3 Offics without the ccncur::nca of the Dirictor.
"c.3 activities in support of the ccnfidantial c93ration2 a-ubr-scid
practically all of the s.3bA1ni3trati'a operations. i ~+':htlc.a, 'rs
:r_.. willin,3 to atta-xgt to eye an audit at CIA w1th.n thi principles
atat::d b7 the Director in his latter of C_tcbar 15, 1959, but in our
r-ply dat-rd October- 21, 1959, we statod twat in ta,a $vent it app arod
after a trial period cur rcvl rs w rat linitsd to such an trtant thLt
We could not effectively and constructively accczplish aiy iorth-whila
objnctivz3 a-a wTuld ccnsidar w-bather or not the audit should be
conti:~uad.
urtr.3 the ensuing 30 months rat undertook to - a a rn-'iexz of
atlectcci overt sctiviti6s era azcas3 to the cover :'.ctiviti- s 3:wts not
rssd?a available to us. Ia thin cormectian, accs.s to th actiritias
of _lie Support Cc cnent in which ws could bat e.xpact3d to bQ moat
elfectiva in our reviews was significantly 1inited bde.au3s covtrt
and overt actiTitiea of this ccqc"nt arm inte3rated. Ida s-*ra not
able to review sufficiently financial ya.~a~a +s t, pro rty ,n:+ a apt'
con.ractina, procur3-aant, and ai:nilar activities for an), affective
appraisal of the adiiniatraticn of these activ?tiex. Cur cos acafor
a raviVw of the internal audit prc3-ra-s nzd raworta era very limited
azul we ha4 no acceaa vataver to the %,-=x of tca Ina?-actor C3 aral;
tharefora, we ware not able to apprsiss the imtor?nal review zzach3ni,As
Within t e a 13tscy. 1 have h ri*_h:ar caslate accost to the ^_tivitisx
of the tatmiiiy*ance+ CC=?C-n4-,t, but t r..attr.s of -blue ucti;rit:Aa a:%j
the is?..'~? of cc lute" e.ccz to intaxnal ravi nr prc3r sat and rxporta
has significantly Hefted cur -jffaactivs.^.esn i;, this area.
In undertakia: to azs rcvie i at tb4 Central Intss11i3snc$
W-s recognized that the :~at'trs Of the acti-litiaa of this A.3,enc7 pYa-
saatari problcy,s can sufficient hrxa4th of ce-f-3rays aid rs'rist of detail
for tbt purpose of reachia~ ;jcund ccrclusicns. Ue ha-.-s s ia"- r7
cyfcrt to brctdan cur :sviaw of tctg actlritia3 of tha soc7' within
tla iinsta_iaa3 xhich :n-rs plac ct u1, a:x3 > rib to aa3ura you
that cur cc clu%ion that could not -ffactivily acct lima any
r - bad
Wort-,bile al-lit oojactivas at CIrk an a ccutl-rwi.- hernia aj
only after cca31d.srin all tl-.A factors az 31v thy.
Tab obta12 the .:ua of oC%_:'3 r.saa of a G-o -Jr'J.1 lccc nt!^^ C--1, ?!
S;~1t o CU .:tl it1=~~, it 1~1~. _~-l??~.4r513 :Lr k11i .'Jit :1's ~J -
A''.' ,1 17 4 01Sta _1C 33 i) -1 it
CIS
to bO 'J^,33i~i'J to p -f rat r3A3cna517 ccri,psins r0vi.-n+;1 O'E
tiaa i y4 :Ter; ?ate1tt cc:3p13t.: zc.13.3 to that ni+aiaiatritiie
~.~.".tia3 cuch f.3 fia.3ocia!, p_cc_1:-? s_nt, p_c^-?rty, and ya:otrro+ti
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 :d1-! .aviv~,r actlviti~s 24t u:a -irfut-~~ast i
a:-P,>c t of botL s4ri.31U-va a d ern; iii ~za2i~nz of CL's.
s : , x r- iata y 1 t2raa: is car izt CIA c~~ the
~~~Taavlx of yr v? xi cm th?a dlacrQtiAxca of Vu.: ~k zh~ry
is imrlt44. ~44 az?s ?r_ ar9ct to diacaaj .:aaya so.tt=2 cart is ~i4h
lirrrely ycura,
Ccagtrollar C--m=-al
of $h Ua i t aci 5 t
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 Approved For Release 2003/05/27 : CIA-RDP84-00709R000300090001-0
COPY OF DRAFT; COPY OF FINAL LETTER NOT
RECEIVED
Honorable Joseph Campbell
The Comptroller General
of the United States
Washington 25, D. C.
DRAFT
OGC:LRH:jeb
11 July 1962
Dear Mr. Campbell:
I have read your letter concerning the restrictions on
performance of an audit of the Central Intelligence Agency and
your opinion that as a result of these restrictions you could not
effectively accomplish any worthwhile audit objectives at the
Central Intelligence Agency.
As you know, the restrictions you met with in the Central
Intelligence Agency are necessary, I believe, for the proper
protection of its intelligence activities and should be maintained.
Also, Mr. McCone has informed us that among the reorganizational
steps he has carried out is a major strengthening of the comptroller
and internal audit functions in the Agency. Consequently, I believe
you have met the objectives of my letter of May 10, 1961, which
recommended that you continue your work at that time, and since
you feel confirmed in your opinion that it is not a worthwhile effort,
I arr, agreeable that y oui withdraw from further audit activities in
the Centri:l Intelligence a-envy.
Sincerely,
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 Approved For Release 2003/05/27 : CIA-RDP84-00709R000300090001-0
COMPTROLLER GENERAL
OF THE UNITED STATES
JUL 2 3 1962
Your letter dated July 13, 1962, on further
audit activities by the General Accounting Cfiice
at Central Intelligence Agency is acknowledged.
Your acceptance of our conclusion that we
ithdraw from :w further audit activities at this
Agency is appreciated and we will proceed to com-
plete the work that is in process at a relatively
early date.
Sincerely,
Joseph Campb?11
Comptroller General
of the United States
Honorable Carl Vinson
Chairman, Cocir.zittee on
Arnied Services
house of Representatives
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NOTE FOR THE FILE
SUBJECT: Jury Duty in Prince George's County
1. In a recent meeting with Judge Roscoe Parker, Jury
Judge of the Circuit Court of Prince George's County, Maryland,
I was advised that he has no objection to a covert employee of the
Agency serving on a jury in Prince George's County.
2. I explained the problems we had in other local juris-
dictions in this regard, but Judge Parker, ,who is quite knowledge-
able of the Agency's statutory responsibilities, said he could not
recall any problems with jury service by CIA covert employees in
his fifteen years on the bench.
3. To assist us, however, the following procedure was
agreed upon. When a covert employee is summoned for jury
service in Prince George's County, he is to contact Judge Parker
on the morning of the first day of jury duty and identify himself
as an Agency employee at which time Judge Parker will brief him
on how to respond to certain questions which might be asked during
voir dire examination.
25X1A
JGB:ks
Distribution:
Original - JURY DUTY
Y- JGB Signer
1 - Chrono
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 STATSPEC
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Next 4 Page(s) In Document Exempt
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OGC 74-0545
25 March 1974
SUBJECT : Claim by
D
25X1A
REFERENCE : Memo to JSW fr JED dtd 4 Feb 74, re: Creditable
Service for Retirement Purposes-
25X1
1. In accordance with the referent memorandum, on 15 February 1974
I discussed the subject claim with Mr. Thomas A. Tinsley (101-24581), the
Director, Bureau of Retirement, Insurance and Occupational Health, CSC.
(Mr. Tinsley was appointed Director upon the retirement of Mr. Andrew
Ruddock and has been appropriately cleared.) I explained to Mr. Tinsley
25X1A that Mr. Ruddock had discussed the matter within 1970 and had
instructed Mr. ~etail his case in writing and return it personally
25X1A to Mr. Ruddock or process it through the Agency. (In following these in-
structions , Mr. 0 not only detailed his retirement claim but also added
two additional claims.)
251X1A
25X1A
2. I reviewed the Agency's position regarding proprietary employees
with Mr. Tinsley, discussing in detail those same aspects that were discussed
with members of CSC's Board of Appeals in the
dated 29 January 1969). I also stated that our review of Mr. I credit-
able service claim revealed that Mr. added nothing new to the matter he
presented to us in 1970. As we did not find such service creditable then, there
seems to be no basis to change that decision now. Mr. Tinsley briefly reviewed
the claim and then stated that he saw no basis in the letter to find the service
creditable. Accordingly, I suggested that, as Mr. is currently within
the Civil ervice Retirement System, it would be appropriate for CSC to inform
25X1A I I directly of their determination. I sent a copy of the claim (OGC 74-
0313, dated 15 February 1974) to Mr. Tinsley who will correspond with Mr.
25X1 A I directly.
25X1A
3 . On 22 February 197f I called this Office inquiring as to the
status of his claim. I explained that, although he had lodged a single claim,
in reality, it was three separate claims and each part must be processed
SECRE
25(1A
 25X1A
25X1A
25X1A
25X1A
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independent of the others. I mentioned that CSC was currently considering'
the first part of his claim, that they would correspond with him directly and
that we had not made as much progress on the other two parts. I assured
Mr. that as soon as I had something concrete to report on these two
parts that I would be in touch with him.
4. On 25 February 1974 I met with Mr. Clyde Carter, Air Amer'
review 0' claim with him. Mr. Carter informed me that Mr
had visited the Air America offices prior to the submission of his claim.
Mr. left the impression with Mr. Carter that he intended to methodically
pursue his claim, exploring all administrative remedies in order to obtain
satisfaction; however, if these remedies fail he will likely pursue the matter
in court. Further, 0 told Mr. Carter that he has yet to retain counsel.
I explained the results of my meeting at CSC to Mr. Carter and discussed the
precedent for a disability claim such as that Mr. ~s lodging. It was Mr.
Carter's recollection that no employee of Air America has been covered by the
Federal Employees' Compensation Act, but some have been covered by the
Defense Base Act. I explained to Mr. Carter that it was my view that the third
part of Mr. claim--the payment for loss of his pilot's license--would be
a matter properly resolved between Mr. ll and Air America. Accordingly,
I will suggest to Mr hat he make that claim directly with Air America.
5. On 25 February 1974 I met with Messrs. Herbert A. Doyle and his
deputy, Albert Klien of the Employment Standards Administration (ESA),
Department of Labor. Both of these individuals hold appropriate Agency
clearances. Within ESA INIr. Doyle holds two positions, Director, Office of
Federal Employees' Compensation and Acting Director, Office of Workmen's
Compensation Programs. As a result, Mr. Doyle has the responsibility for
the administration of the provisions of both the Federal Employees' Compen-
sation Act (FECA) and the Defense Base Act (DBA). I explained Mr.
claim, stating that the disability part seemed appropriately within the
jurisdiction of ESA. It was Mr. Doyle's recollection that Air America employees
had been processed under the FECA in the past, but his files on this subject
were not immediately available. Mr. Doyle explained that in processing an
FECA claim, his office made the following determinations:
a. Whether the claim was timely made--there is an absolute five-
year statutory limitation (5 U . S . C . 8122) from the date the claimant knew or
would be reasonably expected to know that his disability was a result of the
employment.
SEC RE
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b. Whether the individual qualifies as an employee under the
Act as defined by 5 U . S . C . 8101.
c. Whether the disability occurred during the performance
of the employee's duty.
d. Whether there is a causal relationship between the disability
and the employment.
The first determination must be affirmative before ESA will even consider the
next. If, for example, the claim was not timely made, ESA will not consider the
question of Federal employment. We discussed at some length the timeliness
aspect of the claim. It appears that there is not enough information in the claim
to make a determination in that 5 U.S.C. 8122(b) states:
In a case of latent disability, the time for filing claim
does not begin to run until the employee has a compensable
disability and is aware, or by the exercise of reasonable
diligence should have been aware, of the causal relation-
ship of the compensable disability to his employment. In
such a case, the time for giving notice of injury begins
to run when the employee is aware, or by the exercise
of reasonable diligence should have been aware, that his
condition is causally related to his employment, whether
or not there is a compensable disability.
25X1A
25X1A
The type of disability--polio--that ,II suffered has been classified
as a latent disability by ESA. In order to obtain additional data regarding
the date of the employee's knowledge of causal relationship, ESA has the
employee and the employing agency complete their forms CA-1 and 2 and
CA-4.
6. On 28 February 1974, Mr. Doyle called to explain that it was his
opinion that 0' claim would not be covered under the FECA. He
wanted to research whether the DBA had application.
7. On 18 March 1974 I again discussed the applicability of the DBA with
Mr. Doyle. He explained that Section 913a of Title 33, which is incorporated
igito the DBA, was amended in 1972 (P.L. 92-576) to state in part that:
The time for filing a claim shall not begin to run until
the employee or beneficiary is aware, or by the exercise
of reasonable diligence should be aware, of the relation-
ship between the injury or death and the employment.
}~ r
k uh~t
 ~) LL,11L I
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25X1A
claim does not specifically state when he had knowledge of the
relationship between his disability and his employment. We also discussed
Section 930(f) of Title 33 which states in part that where the employer has
been given notice or has knowledge of an injury or death and fails to file
a report in accordance with Section 930 (a), Section 913 does not begin to
25X1A run until such report is filed. It is my understanding that no report has
been filed by IF employer; however, Mr. Doyle explained that
there is no evidence here that the employer was given notice or had knowl-
edge of the relationship between Mr. II disability and his employment.
Therefore, in Mr. Doyle's opinion Section 930(f) would not toll the running
of the Section 913 statutory period.
8. Mr. Doyle and I agreed that while there are a number of methods
to process this claim, the most direct would be that in which I would submit
Mr.~ claim to Mr. Doyle for his consideration of all applicable law
25X1 A that he has the responsibility for administrating. Thus, I sent a copy
/1rVA A _ _ _
25X1A in accordance with our discussions as outlined above, will have to inquire
of Mr.as to when Mr. rst became aware of the relationship
between his disability and his employment in order to determine whether
Mr. can qualify under the DBA.
25X1A 25X1A
9. Accordingly, I ::otified n 25 March 1974 that his disability
claim is being processed by the Department of Labor and that he should
expect them to contact him directly. As to the third part of his claim--the
loss of license--I informed Mr. I that he should lodge such a claim
25X1A directly with his former employer. I will confirm this in a letter to Mr.
25X1
25X
25X`
I outlined this same information to Mr. Carter. Further
I
assed
,
p
this information to the Deputy Director of Security.
25X1A
Assistant General Counsel
cc: DD/Personnel
DD/Security
DDM&S
SECRET
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OGC 74-0472
MEMORANDUM FOR: Mr. Warner
SUBJECT: Restrictions on Use of Telephone Recording
Devices
1. A Federal Communications Commission (FCC)
regulation (47 C. F. R. 64. 501) prohibits a telephone company
from using any recording device to monitor telephone conversa-
tions unless the parties to the conversation are given proper
notice that the conversation is being recorded. Such notice is
required to be given by the use of an automatic tone warning
device--the so-called "beep tone"--which is repeated at regular
intervals during the course of the conversation. It is also
mandatory that no recording device shall be used unless it can be
physically connected tc and disconnected from the telephone line
or switched on and off.
2. To comply with the above regulation, telephone com-
panies have inserted a similar limitation in their tariff schedules,
which are filed with the Federal Communications Commission in
accordance with 47 U. S.C.A. 203.
3. It seems clear that the burden of meeting the "beep
tone" requirement is on the telephone companies rather than on
the users, which creates a rather difficult enforcement problem
for this reason. If the "beep tone" requirement is violated, a
telephone company can be fined up to $500 for each day of the
violation. 47 U. S. S.C. A. 502. However, the telephone company's
grnly recourse against the subscriber who violates the "beep tone"
requirement is to remove the telephone. In practice, the likeli-
hood that a telephone company will take such action against
subscribers is very slight. As it was pointed out in OCC 74-0428
dated 8 March 1974, telephone compaiii es are too concerned with
First Amendment and monopoly problems since the subscriber has
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no alternative to their service. Thus, a subscriber who
records a conversation without the "beep tone" runs very
little risk. It remains, nonetheless, a violation of the tariff
schedules filed by telephone companies with the FCC to
record a telephone conversation without the use of the "beep
tone. "
4. Another means of recording telephone conversations
is the so-called induction method where a tape recorder is
attached to an induction coil placed against a previously installed
telephone. This method also violates the FCC regulation unless
a "beep tone" is used.
5. In any event, it has been held that no interception
occurs when one party to a telephone conversation simply
records it for his own use. Parkhurst v. Kling, 249 F. Supp.
315 (D. C. Pa., 1965). Thus, there is no violation of 47 U. S. C. A.
605 which prohibits the interception and publication of telephone
and radio communications without the consent of the parties to
the conversation. Likewise, there is no violation of the pro-
scription against the wiretapping contained in the Omnibus Crime
Act of 1968 (18 U. S.C.A. 2511, et seq. ), since no "interception"
takes place when one party to a conversation records it for his
own use. Smith v. Cincinnati Post and Times Star, 353 F. Supp.
1126 (S. D. Ohio, 1972), aff'd, 475 F. 2d 740 (1973).
6. With regard to the use of a microphone or an amplifier
to monitor conversations, it also has been held that no interception
occurs when a person places a microphone or a radio transmitter
in such a position as to record a telephone conversation, since
such listening in in no manner interferes with the transmission of
the conversation over the telephone wires. Irvine v. California,
347 U. S. 128 (1954), Silverman v. United States, 365 U. S. 505
(1961), United States v. Borgese, 235 F. Supp. 286 (1964). More-
over, it is certain that a telephone company cannot be held
responsible for recordings by these devices since the telephone
system is not used. When one looks to the essential purpose of
the FCC regulation, however, which is to protect the privacy of
telephone communications, attempts to make distinctions between
mechanical devices attached to telephones and mechanical devices
not attached to telephones is meaningless, if the end result is the
same.
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 25X1
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8. I discussed the above procedure with Mr. Hilbert
Schlossberg of the General Counsel's Office at FCC, who
advised me that police departments, fire departments, and the
like, also record conversations involving threats, safety and
related topics. These organizations usually have an agreement
with the local telephone company permitting recordation of the
conversations without the "beep tone" or any other notice. If
the Agency wants to be absolutely safe in this area, we can
attempt to reach a similar agreement with C&P. Whether we
decide to do so, however, is a matter of policy.
25X1A
Assistant General Counsel
Distribution:
Original - COMMUNICATIONS (OGC 74-0428 filed in Equipment &
1 - JGB Signer Supplies)
A - Chrono
1 - DDM &S
1 - D/Security
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10 April 1974
25X1A
25X1A
MEMORANDUM FOR: Chief, Administrative Staff/OJCS
SUBJECT : Outside Activity of Mr.
25X1A
25X1A'
1. I ia GS-12'computer programmer
in OJCS, has requested approval to engage in certain outside activities.
Specifically, he wishes to teach courses in computer science at the
Bureau of Labor Statistics on 20 April and 10 May 1974. The work
for the Bureau will be done under a contract between the Bureau and
a firm called Mr. II is the president of
this company. The agreement between the Bureau and
provides for the presentation of the courses in return for
a fixed dollar amount. The courses will be taught by Mr.
outside of his normal duty hours with the Agency.
25X1A
25X'
25X1A
2. The undersigned is of the opinion that Mr. II activities,
described above, are not in violation of the Dual Compensation Act of 1964.
The prohibition against receiving dual compensation is set forth at 5
U. S. C. A. 5533(a) as follows:
... an individual is not entitled to receive
basic pay from more than one position for
more than an aggregate of 40 hours of work
in one calendar week (Sunday through
Saturday).
A "position" is defined as being a civilian office or position (including
a temporary, part-time, or intermittent position) in the executive branch
of the United States Government. 5 U. S. C. A. 5531(2). Congress has,
however, excepted certain types of pay from the broad limitations set
forth in sections 5533(a) and 5531(2). One of these exceptions is "pay
cdnsisting of fees paid on other than a time basis." 5 U. S. C. A. 5533(d)(2)
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25X1A
3. So long, Mr.Dis compensated on a basis other
than time, such as on a "per job" or "per course" basis, he will
not violate the Dual Compensation Act.
25X1A
4. The undersigned is also of the opinion that based upon
the above facts, Mr.~ is not in violation of the law applicable
to conflicts of interest found in Title 18 of the United States Code
and in Executive Order 11222. Therefore, there is no legal objection
to his forming a company which offers computer programming and
instruction to the general public and to his serving as president of
the company. He should not, of course, either use any special
knowledge gained through his Agency employment for his own benefit
or use his position and duties with the Agency to solicit business.
He should not in his outside employment engage in any work which
might result in a conflict, or an apparent conflict, between his
private interests and his official government duties and responsi-
bilities. If Mr has any specific questions concerning a
particular contract, etc. , his questions should be referred to this
Office.
25X1A
5. The conclusions reached in this case should not be used
as precedent in any other because cases concerning dual compensation
and conflicts of interest are decided on the facts peculiar to each.
25X1A
OGC:AEG:cap
Original - Addressee
1 - EMPLOYEE RELATIONS AND ACTIVITIES
1 - AEG Signer
-I-'-'--C hr ono
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OGC 74-0676
11 April 1974
25X1A
25X1A
25X1'
MEMORANDUM FOR: Director, Central Reference Service
SUBJECT: Agency Use of Copyrighted Pictorial
Material
REFERENCE: Your memorandum, same subj, dtd
7 Nov 73
1. Referenced memorandum requests both a legal opinion
and practical guidance from this Office on the Agency's use of
copyrighted pictorial materials. In addition, Mr.
J has orally requested certain
additional and specific guidance on the use of still photographs.
This memorandum is in response to both requests.
2. Per your request at paragraph 4 of referent memo-
randum, I have met with and been briefed by representatives of
your office concerning their procedures and activities which
might be violations of copyright. First, in the area of still
photographs, I was advised that you procure these either by
extracting them from unclassified ing
the ri hts to them E-- I
Lnose p o ograp s which are extracted from unclassified
publications are usually filed with an appropriate control marking--
"Official Use Only, " "Government Use Only, " or "Note Copyright
Restrictions on Use. " The use to which you put such photographs
is usually in publications designed for consumption within the
Agency or the intelligence community. For the most part these
are classified publications or carry at the very least, one of the
control markings. On occasion, though, you have been asked to
permit the use of such photographs in unclassified publications (an
example being provided with referent memorandum). In the
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Jam.. .._
25X1A
example- -an unclassified, unmarked biographic report on
25X1 A I L-there is a photograph of him taken
from 10 November 1969. While the report cites
the ource of the photograph, you advise no rights were
2W 1L ned for its use.
4. In the area of procurement, retention and use of tele-
vision video materials, I was advised as follows: Normally,
your people tape three news programs and the Today. Show each
day. In addition, they may from time to time at the request of
an interested office, video tape programs of special interest
on certain domestic issues such as riots, Watergate, etc. This
activity is almost always done on request, an example being a
recent CBS program entitled "Mysterious Alert. " With respect
to retention of these video tape materials, I was advised that they
are not transferred to television film and are retained by CRS
only so long as there is an operational need. The guidelines
set out in your memorandum to the ADD/I of 14 December 1973
(Attachment A) would, on balance, seem to be very good and for
purposes of this opinion, the guidelines are incorporated by
reference herein.
5. A third area of concern to your officers is the in-
creasing number of requests you receive to reproduce video
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tape cassettes and reel-to-reel video tape programs which have
been purchased from commercial distributors. The cassettes
seem to be primarily training materials or courses provided
via the television medium and the requests generally come
from OTR. If you were to honor the request, the net effect would
be that the Agency would purchase only one copy and then make as
many duplicates as are needed. In this regard. the
men and to Chief, Development and Technical Services Group,
OTR, dated 30 November 1973 (Attachment C), seem particularly
appropriate. Therein, in pertinent part he states:
I cannot authorize reproduction of the commercially
produced video training course described in reference
for reasons of copyright. Your memo does not indi-
cate Hewlitt Packard approval to reproduce the tapes
in-house, so I must assume that we would be doing it
against their reproduction restrictions and existing
copyright laws. (Attachment B)
and,
I do not believe that the Agency should reproduce
video cassette programs purchased from commercial
distributors. We should pay the vendor for each and
every cassette purchased and not enter intcmultiple
copy reproduction to satisfy internal requirements.
(Attachment C)
6. in general, every unauthorized use of copyrihted
material, 1 including use with source acknowledgment, -
1/ 17 U. S. C. A. 1: "Any person entitled thereto, upon complying
with the provisions of this title, shall have the exclusive right: (a) to
print, publish, copy, and vend the copyrighted work; . 11
2/ Henry Holt and Co., Inc., to Use of Felderman v. Liggett and
..Myers Tobacco Co., 23 F. Supp. 302, 304 (1938). "The fact that the
defendant acknowledged the source from which this matter was taken does
not excuse the infringement. While the acknowledgment indicates that it
did not intend unfair competition it does not relieve the defendant from
legal liability for the infringement. " And, Toksvig v. Bruce Publishing
Company et al. , 181 F. 2d 664, 666 (1950): "Nor does the fact that defen-
dants acknowledged the source from which the passages were taken excuse
infringement. "
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is an infringement for which the law provides remedies. 3/
These range from civil actions for injunctive relief and/or
money damages 4/to criminal sanctions. 5/ Photographs and
television programs copyrighted within the United States or a
foreign country which is a signatory to the Universal Copyright
Convention are entitled to the protection afforded by U. S. law.6/
7. On the Government use of copyright material, "It is
general Government policy that copyrighted matter will not
knowingly be incorporated in publications prepared by or for the
Government except with the written consent of the copyright
owner.,, ?/ The procedural remedy available to a copyright owner
claiming an infringement of statutory copyright by or on behalf
of the United States is, however, controlled by statute. The action
must be brought within three years of the alleged infringement, it
3/ Alfred Bell & Co. v. Catalda Fine Arts, 191 F. 2d 99.
"A copyright confers the exclusive right to copy the copyrighted
work and right not to have others copy it. "
4/ 17 U. S. C. A. 101: "If any person shall infringe the copy-
right in any work protected under the copyright laws of the United
States such person shall be liable: (a) to an injunction restraining such
infringement; (b) to pay the copyright proprietor such damages as thei
copyright proprietor may have suffered due tothe infringement as well
as the profits which the infringer shall have made from such infringe-
ment, .... "
5/ 17 U. S. C. A. 104: "Any person who willfully and for profit
shall infringe any copyright secured by this title, or who shall knowingly
and willfully aid or abet such infringement, shall be deemed guilty of
a misdemeanor, .... "
6/ Am. Jur. 2d, Copyright and Literary Property, s 76. "The
Universal Copyright Convention was ratified by the United States Senate
in 1954 and came into force for the United States on September 16, 1955,
.... Basically this convention provides that each member nation shall
grant within its own borders the same treatment to foreign authors as it
accrds to its own citizens. "
7/ 41 CFR 5-54. 202
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must be brought in the United States Court of Claims and, prior
to the commencement of such action, the head of the agency
concerned has the statutory authority to settle the claim with the
copyright owner and pay the compromised damages out of available
appropriations. 8/
8. In discussions with representatives of your office, the
case of The Williams & Wilkins Company v. The' United States was
raised. 9/ This case, a copyright suit under 28 U. S. C. A. 1498(b)
is on point, particularly insofar as its lengthy discussion of the
doctrine of "fair use" is concerned. However, it is our opinion that
the case is so narrow in its application and its fact distinguishable,
on at least one important point, that it does not significantly
ameliorate the-activities of your office vis-a-vis the law. The case
arose because the National Library of Medicine (NLM), under the
National Institute of Health (NIH) and the Library of NIH engaged in
photocopying articles from medical and pharmaceutical journals
which were published by plaintiff, The Williams & Wilkins Company
of Baltimore. Defendant libraries were fairly select in their
8/ 28 U. S. C. A. 1498(b): "Hereafter, whenever the copyright in
any work protected under the copyright laws of the United States shall
be infringed by the United States, by a corporation owned or controlled
by the United States, or by a contractor, subcontractor, or any person,
firm, or corporation acting for the Government and with the authorization
or consent of the Government, the exclusive remedy of the owner of such
copyright shall be by action against the United States in the Court of
Claims for the recovery of his reasonable and entire compensation as
damages for such infringement, including the minimum statutory damages
as set forth in section 101(b) of title 17, United States Code: And provided
further, That before such action against the United States has been in-
stituted the appropriate corporation owned or controlled by the United
States or the head of the appropriate department or agency of the Govern-
ment, as the case may be, is authorized to enter into an agreement with
the copyright owner in full settlement and compromise for the damages
accruing to him by reason of such infringement and to settle the claim
administratively out of available appropriations.
Except as otherwise provided by law, no recovery shall be had
for any infringement of a copyright covered by this subsection committed
more than three years prior to the filing of the complaint or counterclaim
for infringement in the action, .... "
9/ U. S. Court of Claims, No. 73-68; Decided 27 November 1973.
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response to requests for copiespf articles and they had
established guidelines on copying. Nevertheless, the libraries
did copy articles and make them available--NIH to its personnel
only, NLM to a wider audience including non-Government re-
questers. The court took judicial notice of the fact that both
institutions are nonprofit in character and exist only to further
the public health. In looking to the doctrine of "fair use, " the
court found that both libraries were rather restrictive in
answering requests for photocopies of materials, particularly
whole journals, lengthy articles or multiple copies of same,
and that there was no evidence that plaintiff's business had been
harmed in any monetary way. The court also examined the intent
of Congress in establishing the NLM. Both the legislation es-
tablishing the NLM and the "Congressional declaration of purpose"
makes it clear that Congress expected the library to make available
photocopies of its holdings in the furtherance of its mission--"to
assist in the advancement of medical and related sciences, and to aid
the dissemination and exchange of scientific and other information
important to the progress of medicine and to the public health. " 10 / 11/
10/ 42 U. S. C. A. 275
11/ 42 U.S.C.A. 276
(a) The Surgeon General, through the Library and subject to
the provisions of subsection (c) of this section, shall--(1) acquire and pre-
serve books, periodicals, prints, films, recordings, and other library
materials pertinent to medicine; (2) organize the materials specified in
clause (1) of this subsection by appropriate catalogi ig, indexing, and bib-
liographical listing; (3) publish and make available the catalogs, indexing
and bibliographies referred to in clause (2) of this subsection; (4) make
available, through loans, photographic or other copying procedures or
otherwise, such materials in the Library as he deems appropriate;
(5) provide reference and research assistance; and (6) engage in such
other activities in furtherance of the purposes of this part as he deems
appropriate and the Library's sources permit.
(c) The Secretary is authorized, after obtaining the advice and
recommendations of the Board (established under section 277 of this title),
to prescribe rules under which the Library will provide copies of its
publications or materials, or will make available its facilities for research
or its bibliographic, reference, or other services, to public and private
agencies and organizations, institutions, and individuals. Such rules may
provide for making available such publications, materials, facilities, or
services (1) without charge as a public service, or (2) upon a loan, ex-
change or charge basis, or (3) in appropriate circumstances, under con-
tract arrangements made with a public or other nonprofit agency, organiza-
tion or institution. (Emphasis added. )
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It is at this point that the case becomes distinguishable from
the one presented by you. The Agency does not have an express
statutory authority Yo photocopy. The court held that the
practices of the libraries had, up to that time, been "fair!' and
that there had been no infringement of plaintiff's copyright.
However, it felt compelled to explain its opinion by reemphasizing
"four interrelated aspects" of the holding. First, the use was
found to be "fair" on the basis of all the factors and elements of
the case, none of which was controlling. Second, the holding of
"fair use" was- restricted to the type and context of use by NIH
and NLM as shown by the record; no other case, set of facts or
similar situations were passed upon. Third, the record failed
to show a significant detriment to plaintiff but did demonstrate
injury to medical and scientific research if the photocopying were
found to be an infringement. Fourth, the court expressed its strong
belief that the judicial doctrine of "fair use" is amorphous and open-
ended and that there is a real requirement for Congress to act to
further delineate the doctrine in the photocopying area.
9. In my discussions with representatives of your office,
we also discussed the effect of classifying pictorial materials as
a safeguard to possible claims of copyright infringement. It is
important to emphasize the fact that classifying pictorial
materials does not relieve an infringement, protects nothing
and may, in actuality, be a detriment. Were the Agency to
classify photographs which had been extracted from unclassified
periodicals, it might be shown the classification-%v'-as simply for
the purpose of concealing a probable infringement and that con-
cealment could be construed as "fraudulent. " This would have
the effect of tolling the three year statute of limitations, that is,
extending the period for bringing an action until three years
after plaintiff discovered the infringement. 12/ In addition, in
view of the requirements of Executive Order 11652, effective
1 June 1972, it would appear that classifying such material is
improper.
12/ Holmberg v. Armbrecht, 327 U. S. 392, 90 L. ed.
743 (1946); Baxter v. Curtis Industries, Inc., 201 F. Supp. 101
(1962); and Prather v. Neva Paperbacks, Inc. , 446 F. 2d 338 (1971).
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10. It is the opinion of this Office that the activities of your
office, as describedAierein, except in those instances where you
have purchased the right to use copyrighted pictorial materials,
are probably violations of statutory copyright. Whether your
unauthorized use of such materials can be considered "fair use"
we just do not know. As in The Williams & Wilkins Company case,
the final decision on any particular use depends on all of the facts.
Accordingly, the first question asked in paragraph 3(a) of referent
memorandum is answered in the negative. The second question
asked in that same paragraph is answered as follows: We know
of no "better way to use the photos that would preclude any
possible claim that CIA was violating copyright laws. " Notwith-
standing, on the facts and the laws, we believe that within the
context of your procurements and uses and restrictive procedures
you impose, the risks to the Agency are minimal and that you may
continue your activities with probable impunity. Should a
question of impropriety arise, the Agency would attempt to
negotiate a settlement with the complaining party per the pro-
visions of 28 U. S.C.A. 1498 (b). This Office would, however,
admonish you to continue adherence to your strict policies, as
described in the three memoranda mentioned herein, particularly
in turning away reque-ts to reproduce expensive, commercially
produced video tape cassettes because, as I advised previously
representatives of your office, suits for copyright infringement
almost always involve large sums of money.
11. With respect to the two questions asked in paragraph
3 (b) of referent memorandum, we would advise as follows:
Recordings of U. S. television materials should not be classified
while available for analyst review, and as noted in paragraph 9,
super, to classify them would appear to be improper. Rather,
it should be sufficient to control these as "Official Use Only."
25X1A
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Distribution:
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Assistant Ger/oral Counsel
I - OGC Subject:
COPYRIGHT
1 - GMB Sinner 1 - Chrono
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FOIAB5
which all allowances flow.
3. All allowances inuring to a Government employee are FOIAB5
established by laws enacted by Congress. These and the regula-
tions promulgated thereunder are the basic authorities from
4. In providing for the travel and transfers of its
employees within the continental United States, the only
authority available is O.MB Circular A-56, now superseded by
the Federal Travel Regulations (FTR!s) issued by the General
Accounting Office (1 May 1973). Both within OMB Circular
Attachment 3, Section 4. 1, is the requirement that for real
estate expenses to be reimbursable, a "permanent change of
station . . , must be . . . authorized or approved and the
old and new official stations located within the 50 States, the
District of Columbia, the territories and possessions of the
United States, the Commonwealth of Puerto Rico, or the Canal
Zone, .': In the FTR's at Chapter 2, Part 6 -- "Allowance
for Expenses Incurred In Connection With Residence Trans-
actions" -- the same condition precedent is present. In
addition, at Section 4. Id of A-56 and Part 6 of the FTR's is
the occupancy requirement: "The dwelling for which reimburse-
ment of selling expenses is claimed . . . " must have been
". . the employee's residence at the time he was first
definitely informed by competent authority of his transfer to
the new official station. "
A-56, Section 4. 1, and modified by the Agency as
5. On the question the Agency has authority
to waive these conditions pr~ced~r_, so that Ir. I t`?ight
be reimbursed, it is the opinion of the undersig l d that only
if here is a deternni nation t;,.-'s PCS mo;'e was occasioned
1
by the o, _
.^ peculiar and ll??a5.'al n `U.'''' E _ ,~ A` ency'_~ b, s:_aess
GrJ :'C; C!C?;-.2 ilt ar. .~rLTeS
S- _os and tov os`
J ~ .J
r 1
o ~i..._ t1he Uaitea Sta'._e.
o _ ..'~ estate
t0 _0t1? oi5
tine `-1
FOIAB5
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FOIAB5
25X1A
Assistant ral Counsel
Attachments
References (a) and (b)
GMB: sm
Distribution:
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1 - OGC Subject: ALLOWANCES
1 - GMB Signer
1- Chrono
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OGC 74-0697
24 April 1974
MEMORANDUM FOR: Chief, Support Element Services Staff, DDO
SUBJECT: Sick Leave -
1. You have requested the opinion of this office as to
whether a retroactive adjustment of approximately 200 hours
can be made with respect to subject's sick leave benefits.
2. Subject's contract of employment dated 6 December
1957, was amended on 5 June 1962 to provide for special travel
from his overseas post to the United States and return for a
thirty calendar day vacation with pay. The travel was to
commence on or about 21 September 1962. The contract was
also amended to provide subject with sick leave benefits as
follows:
(b) Effective the date of your return to your permanent
post of assignment following your vacation in the United
States, subparagraph (b) of paragraph sit (6) entitled
"Benefits" is deleted and in lieu thereof is substituted
the following: _
"(b) You will be entitled to sick, annual and home
leave (including travel expenses incident thereto)
equal to and subject to the same rules and regulations
applicable to Government appointed employees.
Annual leave may only be taken at times and places
approved in advance by appropriate Government
representatives. "
} J. For various a dm;,,.istra~ive T E
~oo s. subject did not
take. his vacation as scheduled and cl_d not return to the United
States until approximately 22 June 196-1 . and ac 1 --'-at time he began
earning government leave b+?r_ef its.
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4. It is clear that if subject had taken his vacation as'
scheduled on 21 September 1962, he would have started earning
leave benefits on approximately 31 October 1962 in accordance
with the terms of the amendment to his contract. It would
seem to be a strange circuristance to deny an individual
benefits he otherwise is entitled to merely because he delayed
his vacation, especially when the reasons for the delay were
beyond his cont- ol. The clear intent of the amendment to the
contract was to provide leave benefits, effective on or about
31 October 1962. In these circumstances, it is our opinion
that a retroactive adjustment of his sick leave benefits is in
order.
;5X1 A
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1 - JGB Signer
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OGC 74-0710
24 April 1974
MEMORANDUM FOR: DD/M&S
Comparison of Overtime Requirements
Under CIA Regulations, Title 5 and
The Fair Labor Standards Act
REFERENCES: a) Civil Service Commission Memo to
D/Pers, dtd, 19 Apr 74, subj, Proposed
Interim Instructions to Implement
the Fair Labor Standards Act
b) Memo fr C/PMCD to D/Pers, dtd,
19 Apr 74, subj, Fair Labor Standards.
Act Amendments of 1974
1.. This is in response to your request of 22 April for a
breakout of the requirement to pay for overtime work under
current CIA regulations, Title 5 of the U. S. Code, and the
Fair Labor Standards Act, as amended.
2. As you know, on 8 April the President signed
P. L. 93-259, the Fair Labor Standards Act Amendment of 1974.
The amendment of Section 3(e) of the Act, the "coverage" section,
to include for the first time "any individual employed by the
Government of the United States -- in any executive agency (as
defined in Section 105 . . . )" of Title 5 of the U. S. Code,
causes the Act to be applicable to most Government agencies
including CIA. In addition, the Civil Service Commission has
the statutory responsibility of administerin the Act within
most Government: agencies, including CIA. Per Reference A:
The FLSA, as amended 'by P. L. 93-259, does
not repeat, 3meud, or otherwise mod-!f,; any
existing federal nay Rather, the FLSA
establishes a n.inimu,n standard to hick
cove*_-ed cznployces arc entltlcd. To tc.e c:cten
that the FLSA ..: aid provide a reacer pay
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benefit to an employee (e. g. , a higher overtime
rate) than the benefit payable under other
existing pay rules, the employee is entitled
to the FLSA benefit. If other existing pay
rules provide a higher benefit, of course, the
employee continues to receive that benefit.
No Federal employee's pay or pay related
benefits (overtime, Sunday pay, etc. ,) will
be reduced to conform to the FLSA minimum
standards.
3. The following are general statements on the require-
ments for overtime compensation, or compensatory time off in
lieu thereof under CIA regulations, Title 5 of the U. S. Code,
and the FLSA. Certain exceptions, not applicable to the great
majority of Agency and other federal employees, have been
omitted.
25X1A i. CIA: "Compensable overtime is that work performed by
an employee in excess of the normal basic workweek which has
been authorized by a designated senior official as compensable. "
"The basic 40-hour workweek consists of five con-
secutive duty days, normally Monday through Friday. "
25X1A "The basic nonovertime workday does not exceed
eight hours. "
25X1A
ii. Title 5: "Hours of work officially ordered or approved
in excess of 40 hours in an administrative workweek, or . . . in
excess of 8 hours in a day, performed by an employee are overtime
work . . . " 5 U. S.C.A. 5542(a).
iii. FLSA: Generally, ". . . no employer shall employ
any of his employees . . . for a workweek longer than forty
hours, unless such employee receives compensation for his
employment in excess of the hours specified at a rate not less
than one and one-half times the regular rate at which he is
employed. Sec 7(c). Under the FLSA overtime is compensable
if the employer suffers or permits it to be worked. "In other
words, for nonexempt employees overtime need not be
'officially ordered or approved' as is presently required.
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Under the concept, any work performed by a nonexempt employee
for the benefit of the agency, whether requested or not, is
working time if the employer knows of or has reason to believe
it is being performed. Thus a nonexempt employee who commences
work prior to the scheduled shift, or continues to work during
meal periods or at the end of the shift, even though the work was
not requested, is entitled to compensation for overtime work.
(In this regard see paragraph 7c, Ref. A. )
B. Rate of Overtime Compensation.
25X1A
i. CIA: "The overtime pay rate is one and one-half times
the hourly rate of basic salary but will not exceed one and
one-half times the minimum scheduled rate for GS-10. "
Thus, no overtime hourly rate may be greater
an one -half times the first step of a GS-10.
ii. Title 5: Essentially the same provisions as followed
by CIA. 5 U. S. C. A. 5542(a)l,
iii. FLSA: ". . . a rate not less than one and one-half
times the regular rate at which he . . . (the employee) . . . is
employed." Sec. 7(a). Note that "regular rate" includes the
scheduled or basic rate, night differential, and Sunday premium
pay. (See paragraph 9c, Ref. A. )
C. Compensatory Time.
i. CIA: a) Employees, GS-11 and below, may, at their
request, receive compensatory time off in lieu of payment for
directed overtime; b) Employees, GS-12 through GS-14, may also
25X1A receive compensatory time off if they request it, but only to
the extent the hours are otherwise compensable as overtime;
cTmpensable as overtime.
c) Also, employees, GS-15 or above, may
receive compensatory time only to the extent the hours are
ii. Title 5: "The head of an agency may --
25X1A
(1) on request of an employee, grant . . . compensatory
time off . . . instead of payment for an equal amount of time
spent in irregular or occasional overtime work; and
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(2) provide that an employee whose rate of basic pay
is in excess of the maximum rate of basic pay for a GS-10 shall
be granted compensatory time off . . . instead of being paid
for that work. " 5 U. S.C.A. 5543. In other words, for those
employees who make more than the maximum basic GS-10,
the head of an agency may direct that they only receive
compensatory time.
iii. FLSA: No comparable provision. "The FLSA.requires
that a non-exempt employee be compensated for hours in excess
of 40 hours a week at a rate not less than one and one-half times
his regular rate. This means that compensatory time off for
overtime work is not appropriate for a non-exempt employee. A
non-exempt employee must be paid for overtime work. "
Subparagraph 9d, Ref. A.
D. Exemptions From Overtime.
i. CIA: a) Employees GS-11 and below, may receive over-
time for all hours of directed overtime except, that in any pay
period, an employee's aggregate compensation (basic salary,
overtime, holiday pay, annual premium pay, night differential,
or compensatory time off in lieu of overtime) may not exceed
the maximum scheduled rate for a GS-15; b) GS-12 thru GS-14
employees may NOT be compensated for the hours of directed
overtime between 40 and 48 either by overtime pay or compen-
satory time, UNLESS the directed hours are: "on a position
which requires substantial amounts of overtime work on a con-
tinuing basis and the productivity is predominately measurable
in units of production or hours of duty performed; on any day
during a work period of seven or more consecutive days;" or,
"on a job the duties of which are substantially unrelated to the
primary assignment. " The same aggregate compensation
limitation applies with respect to exceeding the maximum
scheduled rate for a GS-15; c) GS-15 employees may not receive
overtime or compensatory time in lieu thereof, except in the
cage of a "production" oriented position or unless the second
job concept mentioned above applies. In addition, the aggregate
compensation limitation applies. 25X1A
ii. Title 5: "An employee may be paid premium pay . . .
(overtime, annual premium pay, Sunday and holiday pay) ". . . only
to the extent that payment does not cause his aggregate rate of
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pay for any pay period to exceed the maximum rate for a GS-15. "
5 U. S. C. A. 5547.
iii. FLSA: There are a host of exemptions from both the
minimum wage and overtime requirements of the Act, but those
most applicable to the Agency are the so-called executive,
administrative, and professional exemptions. Sec. 13, At Ref. A,
Attachment 1, pages 4 and 5, the Commission provides guidance
for determining the exempt or nonexempt status of employees
within the three categories. Department of Labor regulations
which define and delimit the three terms are provided for your
comparison as Attachment 1 hereto.
4. The identification of employees as "exempt or non-
exempt" and the determination of payment for overtime under
the provisions of both the Agency's regulation and the FLSA are
the chief problems with which we are now concerned. However,
existing CIA occupational categories of employees follow an
occupational coding system similar to that of the Civil Service
Commission. It is proposed that the Office of Personnel identify
all employees as "exempt" or "nonexempt" by following the
CSC guidelines, within the next few days. Thereafter, we
will be better able to determine the extent of the problem and
how Agency regulations can be changed to solve it. In addition,
it is recommended that the Office of Finance be charged with
developing a procedure to accomplish the dual computation of
overtime as required by the Act. By the terms of the Act, the
Commission is relieved of its administration with respect to
individuals employed in the Library of Congress, United States
Postal Service, Postal Rate Commission, and Tennessee Valley
Authority.
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FOIAB5
25X1A
Chief
Position Management & Compensation Division
25X1A
OJCS
D/Pers
C/CMPD -
25X1A
General Counsel, NSA
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Note: Attachments on file in OGC Library.
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OGC 74-0767
6 May 1974
MEMORANDUM FOR: Deputy Director of Personnel
SUBJECT : EOD Travel of
REFERENCES A. Your memo dtd 5 March 74, same subject
B. OGC 74-0887 dtd 14 Jan 74, same subject
25X1A
Ben:
25X1A
25X1A
1. I apologize for the all-too-long a time it has taken me to get
back to you on the I I case. When viewed against our overall case-
load, Mr. 0 problem is certainly one of our smaller ones. The
"smaller" cases, however, are often the most difficult to resolve, and
his case certainly falls into this catego y.
2. The Federal Travel Regulations provide that travel and trans-
portation expenses and applicable allowances are payable in the case of a
shortage-category appointee from his place of actual residence at the time
of appointment to permanent duty at official stations within the United States.
FTR 2-1.3(c). A new appointee is an individual who is first appointed to
Government service. FTR 2-1.5e(1) . The effective date of appointrent is the
date on which the appointee reports for duty at his first official station. FTR
2-1.4j. The expenses for travel, transportation, and allowances shall not be
allowed unless and until the new appointee to a shortage-category position
agrees in writing to remain in Government service for 12 months following
the effective date of his appointment. FTR 2-1 .5a (1) (a) and FTR 2-1.5f (2) (a) .
Authorized expenses may be paid to the individual concerned even though
he has not been appointed at the time travel to his first official station is
performed. FTR 2-1.5f(2) (b). Mr. Greg Haller of the General Services
Administration is responsible for interpreting the Federal Travel Regulations.
He bias explained to me that FTR 2-1. 5f(2) (b) permits travel to the first
official station before appointment, but the travel must be incident to the
appointment and undertaken at the direction of the prospective employing
agency.
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25X1A
3. The facts in this case are clear. Mr travel from
California to Michigan was not incident to his appointment except in the
most vague and indefinite way. We have an Office of Personnel letter to
him advising him not to begin travel until he has received written author-
ization to do so, and the have his own statement that he was not depending
upon final job offers until the end of the summer, either from the Agency
or other organizations. Thus, I would have a legal objection to interpreting
his early June move from California to Michigan as being incident to his
appointment and undertaken at the direction of the Agency. The additional
factors you mention--when the Office of Personnel could have telephoned
and his wife's maternity condition--are not, I am sorry to say,
pertinent to the question of his travel entitle t.
25M
4. You ask if we may look at Mr. II place of residence at the
time of selection in a more liberal way and find that he was "selected" some
time before 7 June 1973, subject only to clearances which- came through on
22 May 1973. The question of "selection for appointment" (paragraph 6,
OGC 74-0081) is a problem of my own making. I did not accurately quote
the Federal Travel Regulation which states that:
...travel and transportation expenses and
applicable allowances.. are payable in the
case of... (c) new appointees, as provic'ed
in 2-1.5 /shortage-category appointees/, from
their places of actual residence at the time of
appointment to permanent duty at official
stations .... FTR 2-1.3(c).
In relation to the subject of travel expenses for shortage-category appointees,
the only time the FTR uses the word "selection" is in connection with limits
on travel expenses, i. e . ,
/t/he limit on travel and transportation expenses
in the individual case is the cost of direct travel
or transportation as allowable between the indi-
vidual's place of residence at the time of selection
or assignment and the official station to which
appointed or assigned; .... FTR 2-1.5f(5) .
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I again contacted Mr. Haller to pursue a definition for the word "selection"
as used above. He obtained an informal opinion from the General Accounting
Office that "place of residence at the time of selection" means "place of
actual residence at the time of appointment". It may be of interest to you to
know that both GSA and GAO do not give the Federal Travel Regulations
a liberal interpretation. I believe we should take a similar view. In
summary, I must state a legal objection to construing the regulations and
the facts in Icase in such a way as to enable the claim to be
approved.
25X1A
25X1A
Office of Gena,, al Counsel
cc: D/Fin
C/OP/SPD/PPB
DDM&S w/their background
OGC: AEG: cap
Original - Addressee
1 - OGC Subj: ALLOWANCES
1 - AEG Signer
Chrono
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OGC 74-0832 P
10 May 1974
MEMORANDUM FOR: Chief, EA Personnel
SUBJECT : Family Visitation Travel
REFERENCE : Telepouch I C/EA Div.,
fm COS Vietnam, dtd 8 May 74
25X1A
25X1A
concerning the question raised in Referent. Therein, the Chief of Station,
Vietnam requests clarification on the monetary limitations for family
visitation travel (FVT).
FOIAB5
In part, P.L. 90-221 authorizes payment of:
The travel expenses of officers and employees
of the Service for up to two round trips each
year for purposes of family visitation. . .except
that, with respect to any such officer or employee
FOIAB5
25X1
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4
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whose dependents are located abroad, the
Secretary may authorize such additional trips
as he deems appropriate not to exceed the
equivalent cost of two round trips of less than
first class to the District of Columbia, .. .
Provided, That the facilities of the Military
Airlift Command shall be utilized whenever
possible for travel authorized ... /herein/ .
25X1A
(a) Travel expenses may be paid for up to
two round trips a year by the employee for
the purpose of visiting his family in the
United States.
4. The legislative history of P.L. 90-221 reflects that there was a
conscientious effort not to provide a specific monetary amount in the
amendment. The Congress realized that the circumstances in Vietnam
that gave rise to the amendment may occur in other countries where
travel to the United States may be more expensive. Changes in plane
fares also made a dollar figure unrealistic. Therefore, they set a maxi-
mum allowance as the cost of two round trips in each year at a cost of
less than first class travel, i . e . , economy or tourist fare, between the
post where the employee is assigned and Washington, D.C. Families
living abroad may be visited more frequently so long as the maximum
is not exceeded. The amendment, however, does not guarantee an
employee all these trips each year for visitation. The availability of
FVT for an employee is at all times subject to the needs of the Agency.
Further, no cash payments accrue to the employee for any trips authorized
but not made. In order to keep the cost to a minimum the Congress includec
a requirement that travel under the authority of the amendment be by
Military Airlift Command aircraft wherever possible.
5. The Agency implemented the adoption of the FVT provision of P.L.
90-221 into wherein at paragraphs 2 (a) and (b)
it is stated in part:
(b) When the dependents are located outside
the United States., .more than two family
visitation trips may be permitted a year, but
reimbursement for such travel may not exceed
the cost of two round trips by less than first
class air to the District of Columbia.
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6. It is the opinion of this Office that these regulations are consistent
with the statutory authority on which they are based. Further, while not
mandatory, they are consistent with the Foreign Affairs Manual. The
Uniform State/AID/USIA regulations for visitation travel are outlined
therein at 3 PAM 699.
7. Accordingly, it is the opinion of this Office that for the Vietnam
Station Travel Directive to be consistent with the statutory and regulatory
authorities they must reflect the following:
a. If the employee's family is located in the
United States, he may be granted as many as two
trips a year to visit them.
b . If the employee's family is located outside
the United States, he may be granted as many trips
as the cost for which does not exceed the cost of two
round trips by less than first class air to the District
of Columbia.
25X1A
Assistant General Counsel
OGC: JED: cap
Original - Addressee
1 - OGC Subj: TRAVEL
1 - JED Signer
1 - Chrono
SEC R ET
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1. The production of intelligence bearing on the national
security for use at the highest levels of policy determination of
the United States Government is a responsibility of the gravest
note. The organization bearing this responsibility should be
staffed with persons of the highest available intellect, integrity,
professionalism, dedication, perspicacity, and dynamism. The
Central Intelligence Agency's retirement policy is an essential
element of its program for ensuring that its staff possesses these
attributes to the highest degree feasible.
2. The personnel staffing program of the Agency is based on
the concept of selective recruitment for career employment and
managed career development. Selection standards are designed
to accept only persons with the highest qualifications and potential
for development. The Agency's development program provides a
career-long blend of formal training and managed progression
through appropriate assignments of increasing breadth and respon-
sibility.
3. The goal of the Agency's development program is to place
the best available employee in every position. Prom otion'f3olicy
reinforces career development by advancing those who excel and
have the capacity for further growth. The Agency's rigorous
system for evaluating the performance of its employees is designed
to assure high levels of effectiveness. Those who are unsatisfac-
tory are separated; those who are marginal or unlikely to find full
career satisfaction are counseled to resign.
4. Intelligence activities are characterized by continuous
ch ,nges--in requirements, methods, techniques, processes, and
emphases. As these changes occur, the Agency reassigns its
career staff employees and provides supplementary training as
required. To the extent that these measures do not meet the needs,
requisite skills, experience, and special abilities are acquired by
the employment of new personnel.
1 7?? .. _ ? 4 1 .I i
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-2-
5. Because there are practical limits to the size of the Agency,
the requirement for new employees and the operation of the career
development program cannot be accomplished without attrition.
Part of this attrition is provided by involuntary separations and
resignations through the Agency's system for evaluating employee
performance. Other vacancies are provided by voluntary retire-
ment and resignation and by death and disability. But together these
do not create a sufficient number of vacancies.
6. The Agency's retirement policy is an integral part of its
program to maintain the high level of performance required by its
mission and responsibilities. It also provides the additional attrition
necessary for career development and the acquisition of new em-
ployees. This policy, adopted in 1959, generally limits the career
span of its employees to age 60.
7. Agency employees, with some exceptions, have all attained
their career peaks several years before reaching age 60. They have
had a full CIA career and have made their maximum individual con-
tribution to their Govermnent. Exceptions specifically contemplated
are individuals who possess rare scholarship and talents that would
be difficult to replace in the normal course of career development
and whose retirement would not be in the best interests of the Gov-
ernment. In some cases retirement at 60 may result in loss of
valuable experience and know-how and only generate a recruitment
and training requirement.
8. It is recognized that enforcement of the policy to retire
employees at age 60 occasionally subordinates the personal desires
of the individual to the best interests of the Government. This is
usually the case when it is necessary for any reason to separate an
employee. The normal voluntary retirement age for most Federal
employees is 65, and the compulsory age under the Civil Service
system is 70. Similar retirement ages for CIA would result in the
grAdual accumulation of an excessive number of employees of de-
clining performance, whether due to declining health, motivation,
or drive or to inability to adapt to change. The effectiveness with
which the Agency fulfills its extraordinary responsibilities depends
entirely upon the highest possible level of effectiveness in staffing
the Agency. Consequently, extraordinary action toward attaining
7.7 1-7! 1
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and maintaining this goal--such as effecting a retirement policy
more stringent than that for the Federal service in general--is
warranted.
9. Retirement at age 60 may appear less appropriate for those
Agency employees who are in positions that are not unique to intelli-
gence activities. In theory, it might be possible to identify all such
positions and exempt the incumbents thereof from the retirement
policy.
10. There are two reasons for not doing so. Attempts to for-
mulate criteria of differentiation would generate new problems of
morale and administration. The creation of exempt categories of
employees would foster odious comparisons. It would thwart the
implementation of the general retirement policy indefinitely as
groups and individuals pleaded their individual cases.
11. The more fundamental reason for not exempting certain
categories of Agency employees is that the work of the Agency must
be performed with utmost responsiveness. This requires a general
state of mind on the part of all employees that timeliness is critical,
accuracy is imperative, and absorption with the task at hand takes
priority over personal distractions. Advancing years inevitably bring
about a lessening of work vigor and enthusiasm. The larger the pro-
portion of older employees, the greater the debilitating effects on the
tenor of the Agency.
12. In summary, the age 60 retirement policy is a key element
of the Agency's efforts to attain excellence in its staffing.. Without
the policy the entire personnel program of the Agency would be im-
paired. The most vigorous and productive individuals, finding
themselves stymied, will leave the service or will never be per-
suaded to enter in the first place. By shortening the career span
of all employees, service in intelligence will continue to be highly
attractive to outstanding young men and women. In the end, our
national intelligence objectives will be best served.
^r-
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30 April 1968
MEMORANDUM FOR: Director of Central Intelligence
SUBJECT : Retirement Policy
1. This memorandum submits recommendations for your
approval in paragraph 4.
2. During the past several weeks I have reviewed Vie Agency's
retirement policy with the Deputy Directors, the General Counsel,
the Inspector General, the Director of Personnel, and the Chairman
of the CIA Retirement Board.
3. Our discussion and conclusions are summarized as follows:
b. The principal issue of our discussion, and from which
all others flow, is whether the Agency should have a policy
requiring retirement earlier than provided by law under the
Civil Service Retirement Act or the CIA Retirement and Dis-
ability System for GS-18s and above. After considerable
discussion, it was the consensus that there should be an early
retirement policy with a stipulated age at which most employees
t i,;',?1 1
t 1.'C1 t (f;i tS: 93~f:
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should leave. At the same time, it was recognized that,
because the Directorates have different problems, Agency
policy should be flexible enough to permit liberal exceptions
when justified. This appears to be particularly true in the
Intelligence Directorate because of the various types of
professional employees needed and because these profes-
sionals often are individuals who have prepared themselves
through academic study for long-range professional careers
where an arbitrary retirement age would not be a condition
of employment. Rationale in support of such a policy is
attached at Tab A.
c. Having reached agreement that the Agency should have
an early retirement policy with provision for exceptions to
meet particular needs or circumstances, we then discussed
the types of exceptions that could be identified and action
recommended in advance. General agreement was reached
on the following:
(1) There should be no general exception for employees
who argue that at the time they entered on duty they were
led to believe (or now believe) that they had the right to
:*,ork until age 65 or 70, depending on the retirement sys
tem in which they participate.
(2) There is a small group (12) of Agency employees
who will not have 12 years of creditable service by their
scheduled retirement date. We feel that these employees,
as a group, should be permitted to remain on duty until
they accumulate 12 years of service when they earn the
right to continue important statutory hospitalization and
life insurance coverage.
(3) As originally conceived in 1959, our early retire-
ment policy expected employees to retire at age 60 with
30 years of service or at age 62 with at least 5 years of
service. When the Civil Service Retirement Act was
amended in 1966 to include a provision for optional re-
tirement at age 60 with 20 years of service, Agency
policy was in turn revised. There were some employees
who prior to the revision of Agency policy had been informed
r
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that their scheduled retirement would be at age 62 and
presumably planned accordingly. With the change,
their scheduled retirement age was lowered to 60. We
feel that these employees should be permitted to remain
on duty until age 62 if they so request. This does not
include those employees who at age 60 have at least 30
years of service since this was a requirement under the
earlier Agency policy.
(4) An overall exception should be made for the
group of printers (57) who were induced to transfer
from the Government Printing Office to the Agency
with the assurance that they would not lose any benefits.
(5) There should be no overall exception for lower
graded clerical employees. Each such case should be
considered on its own merits.
(6) There should be no overall exception for employees
with technical skills in grades GS-7 and below even though
it might be difficult to recruit replacements and their loss
would create training problems. Each such case should be
considered on its own merits.
(7) No overall exception should be made for employees
merely because they are writing Agency history.
a. Agency policy continue to provide that employees gener-
ally will be required to retire at age 60 or as soon thereafter as
they are eligible for optional retirement under the law, regard-
less of whether they are covered by the Civil Service or the CIA
retirement system.
b. Exceptions to the general policy be considered by the
Director on an individual case basis when requested by the Head
of Career Service or a Deputy Director.
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c. Overall exceptions as indicated in paragraphs 3. c. (2),
(3), and (4) above be approved.
25X1A
L. K. White
Executive Director-Comptroller
Attachment
Rationale
CONCUR:
25X1A
Deputy Director
25X1A for Support
Deputy irec or
25X1A
for Intelligence
General Counse
25X1A
Deputy Director
L
25X1A for Plans
*,W ience and Technology
Deputy Director
Inspector General
The recommendations contained in paragraph 4 are approved.
25X1A
Richard Helms (Date
Director of Central Intelligence
irpP'_~T
. AR
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SUBJECT: Retirement Policy
Distribution:
0 & 1 - D/Personnel
1 - ExDir-Comp
1 - ER
2 - DD/S
1 - DD/P
1 - DD/I
1 - DD/S&T
1 - General Counsel
I - Inspector General
1 - C/BSD/OP
~rpipr
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 OGC 74-0 13
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SUBJECT . Early Retirement Policy--Review of OGC
Opinions and P . L . 93-259
FOIAB5
1. The record as reconstructed from OGC files is not altogether
clear as to when and why the Central Intelligence Agency (CIA) established
a retirement age for its employees which is below the mandatory age
followed by other Government agencies. It appears that in 1959 a decision
was made at the highest level of the Agency that all employees were
expected to retire as soon as they became eligible to do so without suffering
a reduction in their annuity. * This meant that employees would retire
at age 60 with 30 or more years of service or at age 62 with less than
30 but more than five years of service. I
amendments to the Civil Service Retirement (CSR) system permitted
participating employees to retire at age 60 without a reduction in their
annuity if they had at least 20 years of service. Thereupon, Agency
policy was modified and all Agency employees were expected to retire
at age 60 if they had at least 20 years of service.
2. Office of Personnel memoranda available in OGC indicate that
the early retirement policy was adopted in 1959 because of the long-range
concern and the conviction that the Operations Directorate (and certain
support offices) could not be effectively staffed with a substantial number
of employees over age 60. In addition, the Operations Directorate (and
certain support offices) had a pronounced age hump as a result of the
employment therein of large numbers of World War II veterans and employees
of CIA predecessor organizations. The early retirement age was made Agency.
wide for the sake of uniformity of policy, and there are no records in the
Office of General Counsel (OGC) of discussions between 1959 and 1965 as to
the need for or the ultimate impact of a single policy applicable to all elements
of the Agency and all levels and fields of employment.
The development and implementation of the Agency's retire-
ment policy is set out in detail in the DDS Historical Series, OP-4, dated
June 1971. A memorandum for the DCI from the Director of Personnel dated
17 September 1959 first recommended the early retirement policy.
MNNI VV=U IVI RCICQ.JC LVVJ/VJ/LI . V1M-RLJF V4-VV/ V.7 RVVVJVVV.7VVV I-V
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3. It should be noted that up until 1965, the Office of General
Counsel had not issued an opinion concerning the early retirement policy.**
FOIAB5
4. In 1967, the Director of Personnel requested that the Director
establish a senior task force to review the Agency's early retirement policy.
He noted that resistance to and resentment of the age 60 retirement was
increasing and that it seemed unfair to employees to whom the policy was
not a known and accepted condition of employment at the time of original
employment. (It appears that a statement of the Agency's early retire-
ment policy was first set forth in a Headquarters Regulation in 1961).
The Director of Personnel also argued that the passage of the CIAR
legislation satisfied the original objectives of the policy, that the number
of extensions in service were growing rapidly, and that the Agency would
not (he was told) enforce the early retirement policy, but employees did
not know this.
FOIAB5
** The General Counsel was a member of the Career Council
which had approved the proposal initially in 1959. He was thereafter
Chairman of the Retirement Board.
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FOIAB5
FOIAB5
FOIAB5
6. Perhaps here a digression from the chronology should be
made in order to mention a few facts about the CSR system. Public Law
854 of July 31, 1956 (70 Stat. 736) provided that mandatory separation
under the CSR system was at age 70. (70 Stat. 748. )
I Today, section 8335 of Title 5 of the U.S. Code still pro-
vides that mandatory separation under the CSR system is not until age
70. Sections 8331 and 2105 of Title 5 indicate that Agency employees, if
not covered by another retirement system for Government employees,
do come under the applicable provisions of Title 5 pertaining to the CSR
system.
7. In early 1968, an internal OGC memorandum was prepared which
discussed rationales for early retirement. The paper suggested that
an employee did not necessarily have to be a member of the Operations
Directorate to occupy a position of considerable stress and demand or
occasionally face physical discomforts, danger, or endure other hard-
ships. The paper also stated that it was difficult, however, to make a
strong argument that professionals in the Intelligence and Science and
Technology Directorates (the analysts) who are approaching age 60
have (because of their age) lost their ambition, were not performing
satisfactorily, or were not up-to-date in their disciplines. A more
persuasive factor mentioned in the paper is the statement that persons
nearing 60 control the output of younger men, whose attitudes and
thinking might be more current and who are probably in less of an
"intellectual rut". Observations have been made by sociologists,
etc. , that there often develops within large, structured organizations
a bureaucratic malaise which is more pronounced among older persons,
particularly those who occupy middle-level positions and who are aware
that they are at the apogee of their careers.
8.. The General Counsel in early 1968 revised a paper
prepared by the Deputy Director for Support (DDS) which upheld the
Agency's early retirement policy. A few months later he responded
to a proposal from the DDS, who suggested that the Agency might
develop an incentive compensation program to encourage early retire-
ment, stating that such a program was fraught with legal problems but
that it might work under certain conditions. 'The details of such a
program would have to be worked out well in advance of its implementation.
The Voluntary Investment Plan (VIP) is an indirect result of Agency efforts
to make retirement financially more attractive.
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9. The early 1968 papers described above culminated in a
30 April 1968 memorandum from the Executive Director to the Director
concerning the Agency's early retirement policy. The Director approved
the continuance of the policy that employees generally would be required
to retire at age 60 or as soon thereafter as they were eligible for optional
retirement, regardless of whether they were covered by the CSR or CIAR
system. A few overall exceptions were made affecting about 100 persons,
most of whom were printers induced to transfer from the Government
Printing Office to the Agency. No other general exceptions to the rule
would be considered, but individual cases would be examined in the
future by the Director.
10. No other documents on the subject of retirement age appear
in OGC files until 1972. In November of that year, the General Counsel
sent a memorandum to Mr. Colby concerning the President's memorandum
ordering an end to any discrimination in federal employment based on age.
The General Counsel contended that the Agency did not contradict the
President's wishes because our retirement policy was not the type of
discrimination he was banning. The General Counsel drew a distinction
between general employment practices and the Agency's career philosophy
and suggested that the Agency's policy was no different in principle from
the CSR's age 70 statutory limitation and the CIAR's age 60 statutory
limitation.
11. What seems to be reflected in the papers referred to above
and what seems to have evolved is that the Agency's early retirement
policy is not now based so much on the old rationale of "hardships",
"dangers", "burning-out", etc. , but on the new rationale that it is an
effective and efficient management tool. As a management tool, it helps
management meet the declining personnel ceilings that have been im-
posed upon the Agency in recent years.
12. On 8 April 1974 the President approved P . L. 93-259
(88 Stat. 55), known as the Fair Labor Standards Amendment of 1974.
Almost all the sections of the Act amend or repeal sections of the Fair
Labor Standards Act of 1938 (FLSA) (29 U.S.C. 201-219). There is
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tucked in at the end of the Act, in section 28 of the 29 sections com-
prising the Act, several amendments to the Age Discrimination in
Employment Act of 1967 (ADEA) (29 U . S . C . 621-634). The key
amendment is one which states that the policy of Congress is that there
shall be no discrimination on account of age in federal government
employment.
13. The amendment provides that:
(a) All personnel actions affecting employees
or applicants for employment (except with
regard to aliens employed outside the limits
of the United States) ...in executive agencies
as defined in section 102 of Title 5, ...shall be
made free from any discrimination based on age.
The Civil Service Commission is authorized to enforce this provision
and to issue whatever regulations are needed to carry out its responsi-
bilities. The Commission is to review and evaluate all agency programs
designed to carry out this policy and to provide for the acceptance and
processing of complaints of discrimination in federal employment on.
account of age. An aggrieved party may bring a civil action in a federal
district court to obtain whatever legal or equitable relief will effectuate the
purpose of the amendment. The amendment also provides certain time
periods within which the aggrieved must give notice of an alleged unlawful
practice and notice of an intent to file a civil action.
14. The amendment further stipulates that:
(t)he head of each. . .agency. . .shall comply
with (the) ... regulations. . . of the Civil
Service Commission....
The Commission is given the authority to establish reasonable exemptions
from the law, but only when it can establish a maximum age requirement
on the basis of a determination that age is a bona fide occupational
qualification necessary to the performance of the duties of the position.
15. The legislative history of P.L. 93-259 states that the
amendments to the ADEA are a logical extension of Congress' decision
to extend FLSA coverage to federal, state, and local government employees,
which is done in other sections of P . L. 93-259. The ADEA prohibits dis-
crimination in employment on the basis of age in matters of hiring, job
retention, compensation, and other terms, conditions or privileges of
employment. Protection Linder the ADEA is limited, however, to individuals
who are between 40 and 65 years of age.
5
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16. The Senate bill amending the FLSA (S. 2747) was passed
in lieu of the House bill (II.R. 12435) but the Conference Committee
substituted for the language of the Senate bill much of the text of the
House bill. The U.S. Code Congressional and Administrative News sets
out in the legislative history of P . L . 93-259 only the House Report and
the House Conference Report.
17. The Senate Conference Report is set out in the Congressional
Record (Senate) of 28 March 1974. Senator Williams of New Jersey informed
his colleagues on the floor of the Senate that despite a strenuous effort by
the Senate conferees, they were forced to yield to the House on certain
major issues. A section by section analysis of the Senate Conference
Report is included in the Record. Under section 28, Nondiscrimination
on Account of Age in Government Employment, the Senate Conference Report
states:
Questions have been raised about the appli-
cability of the Age Discrimination provisions to
the discretion which now may rest in the heads
of certain executive agencies to terminate an
employee in the interests of the national security
of the United States.
It was not the intent of the conferees to
affect the exercise of such discretion, other
than by barring actions which, in fact, would
be illegal, such as a termination of employ-
ment or a refusal to hire based on age.
18. Until the Civil Service Commission issues implementing
`regulations or begins to consider categories of employees exempted from
the new law, we cannot be certain that if faced with a court test of our
early retirement policy that we will prevail. The Agency can, of course,
seek a blanket or limited exemption from the application of the law. A
limited exemption presumably would cover only certain categories of
professional employees participating in the CSR system.
,fT
jI
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19. It is noteworthy that the ADEA in prohibiting dis-
crimination for age in the private sector specifies in 2. 9 U . S . C . 623(f)
three areas beyond the scope of the Act. Exemptions are granted for
employers:
(1) to take any action otherwise prohibited
where age is a bona fide occupational qualification
reasonably necessary to the normal operation of
the particular business, or when the differentiations
are based on reasonable factors other'than age;
(2) to observe the terms of a bona fide seniority
system or other employee benefit plan such as a
retirement plan; and,
(3) to discharge or otherwise discipline an
individual for good cause.
In comparing the language of section 623 (f) with the language of the
1974 amendment, it seems that Congress has been more generous"
to the private sector. Perhaps the Commission's regulations will
"even the score", but we cannot be too optimistic.
25X1A
Office of Gei eral Counsel
Attachment:
DCI approved Retirement Policy
(ER 68-2186, dtd 30 Apr 68)
DCI & DDCI
cc: DDO
DD/M&S
DDI
DD/S&T
IG
Comptroller
D/Pers 7
Executive Secretary
AEG: cap
Distribution:
triginal - RETIREMENT
1 - AEG Signer
1 - Chrono
r a
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 AppraE64 '(R eI6 bF2008QBMr-F-GA I $X-00709R000300090001 fp
WASHINGTON, D.C. 20505
5 June 1974
The Honorable Carla A. Hills
Assistant Attorney General
Civil Division
Department of Justice
Washington, D. C. 20530
I have your letter of May 29th regarding new procedures
within the Civil Division designed to bring cases of special
significance to your attention.
As you are aware, we have been working very closely
io
s
ecificallyT i\vir erwin Goldbloom and
s
n
p
Mr. David J. Anderson, on the I . Obviously, 2`""^
this case has special significance and has been treated as such
from its inception, and our relationships with Mr. Goldbloom
and Mr. Anderson have been extremely close, more nearly
representing a law firm partnership than representatives of
two different agencies. Also, when we have worked with your
Division on other cases, such as a recent contract fraud case
when we worked with Mr. Irving Jaffe, the Division has always
been cooperative and recognized the unusual aspects of the cases.
As it turns out, almost all of the cases we send to the Department
of Justice are unusual because of the unique mission of this
Agency.
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I can think of no way that we can improve our working
relationships with your Division. Certainly, if there are any
matters which I feel need your personal attention, I shall not
hesitate to be in direct contact with you.
25X1A
OGC:JSW:jeb
cc: DCI
OGC chrono
Sincerely,
U John S. Warner
General Counsel
subject Liaison-Governmental
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DepartlnEnt Ol3ustice
Uashin,r~yton, D.c. 20530
ASSISTANT ATTORNEY GENERAL
CIVIL DIVISION
May 29, 1974
Mr. John S. Warner
General Counsel
Central Intelligence Agency
Washington, D. C. 20505
The Civil Division has initiated a practice whereby
cases which are of special significance to a client agency
or which are likely to create a noteworthy precedent are
called to my attention. I try to follow the progress of
these special cases personally and through my Deputies,
and where necessary, to implement special procedures in
their handling. As you may know, the Civil Division is
responsible for supervising more than 27,00') cases exclu-
sive of Custom court cases. Therefore it is necessary that
we exercise care to designate only those cases which have
special significance for special handling.
Although the chiefs of our various sections to whom
the incoming cases are assigned are highly competent in
recognizing cases of special significance, it sometimes
occurs that the papers forwarded do not set forth the true
significance of the matter, particularly from the viewpoint
of the client agency. Accordingly, where the case has
special significance to your agency, I would very much
appreciate your asking your staff, when forwarding the
case, to include a statement setting forth the fact of
and the reason for its special si;7nificance. That will
assist us to render the most efficient legal service
possible.
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Of course, when you are personally concerned about
the progress of any given case, please do not hesitate
to contact me directly, and I will make every effort to
address the problems that give rise to your concerns.
Thank you very much for your assistance.
Sincerely ,
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SUBJECT: Jury Duty for Covert Employees--U.S. District Court for
the District of Columbia
1. On 6 June I met with Chief Judge George L. Hart, Jr., in his chambers
to discuss the problems that confront some Agency employees when they are called
for jury duty. I stated that some of our employees have no visible employment relation-
ship with the Agency, but they are in fact employees and are required to protect the
covert employment relationship. I explained that previous Chief Judges (naming
Sirica and Curran) had decided that such employees should not serve on their juries
since they could not divulge their true employment. At this point, Chief Judge Hart
interrupted me and informed me he would like to have Circuit Judge J. Skelly Wright
attend our meeting since he and Judge Wright were studying the question of jury
service in the District of Columbia.
2. Judge Wright joined us and I repeated the comments made to Judge Hart
and then stated that although the Agency had an agreement with the former Chief Judges,
I was there to seek their advice and guidance as to whether they wanted covert employees
to serve. Judge Wright stated that it was his feeling that any individual who is required
to keep his employer or the nature of his employment secret should not serve on a jury,
but this was a matter within Judge Hart's discretion. Judge Hart stated that he felt such
employees should be excused, but he wanted to make sure that the Circuit Court agreed
with him. Judge Hart agreed that, rather than merely excusing an individual, he would
have the Clerk of the Court pull the individual's registration card without explaining
why it was being done.
3. 1 asked Judge Hart if I could explain our agreement to his secretary, Mrs.
Dunnigap (who has been with the Judge for about 16 years), so that I would not have to
bother him every time a covert employee was summoned. He agreed to this, commenting
that he would still have to sign the summons. I asked him if he wanted a letter formalizinn Iu'
111
he said it was not necessary. Both he and Judge Wright were very
our agreement, and
cooperative and seemed to understand the problems involved. N'''1811I~
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4. On my way out I spoke with Mrs. Dunnigan and explained the problem
to her. I told her that either I or another individual would deliver a covert employee's
summons to her. In a case where there was not time to deliver the summons, I would
call her and give her the individual's name and summons number. (This is the same
arrangement I had worked out with Mrs. Holley, former Chief Judge Sirica's secretary. }
Mrs. Dunnigan was very cooperative and agreed not to associate either my name or the
Agency with a covert employee's name or summons.
25X1A
Office of Gene7 1 Counsel
OG : AEG: cap
riginal - OGC Subj: JURY DUTY
1 - AEG Signer
1- Chrono
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?
 4~
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OGC 74-0977
10 June 1974
25X1A
25X1A
FOIAB5
FOIAB5
MEMORANDUM FOR: Chief Support, EA Division
SUBJECT: Travel Entitlements of Mr.
Children
25X1A
REFERENCE: OGC 73-2281, dtd ll December 1973, Subj, 25X1 A
25X1A
I
Response to Mr.
on Is Divorce
EA Support,
1. You have requested the opinion of this Office on the entitle-
ment of Mr.1 _F to have his children travel to and from his
post of assignment for the summer at Government expense. It is is
understood that and his wife are in the process of being 25X1
divorced and that a separation agreement entered into between them
states that custody shall be shared jointly by the parties and that
is to have primary custody between 1 September and I June
each year while Mr.I to have primary custody from 1 June to
1 September. It is further understood that when the divorce is final
the separation agreement will be incorporated within the divorce
decree. 25X1A
2. When an Agency employee is transferred overseas his
entitlement to travel for himself and his family at Government expense
is established by statute and by regulations issued thereunder. i
I I With respect to who are 25X1A
"members of the family," Agency regulations at0 state as
follows: "When an employee is assigned to a post abroad, his
dependents for purposes of travel (except educational travel) are
(a) spouse; (b) children, (including step, adopted, and foster
children) who are unmarried and under 21 years of age or, regardless
of age, are incapable of self-support, . . . . " The Title 5 authority
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r~~;T-
 25X1A
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cited su ra provides that regulations shall be prescribed by the
. tCJlUent. That authority was delegated to the i~;rector of tho Bureau of the Budget by Executive Order 11230, 28 June 1965, then redelegated to
the Administrator, General Services Administration by Executive
Order 11609, 22 July 1971. The Administrator's regulations, "The
Federal Travel Regulations, " are found in 6 F. A.M. 190. Therein
at 2.14d, "immediate family" is defined as ". . . (a)ny of the
following named members of the employee's household at the time
he reports for duty at his new permanent duty, station or performs
authorized or approved overseas tour renewal travel or separation
travel: spouse, children (including step-children or adopted
children) unmarried and under 21 years of age or physically or
mentally incapable of supporting themselves regardless of age, ,
(Emphasis added.) This definition of dependents for travel purposes
is more restrictive than the Agency's because of the requirement that
the children be members of the employee's household at the time he
reports for duty at his new permanent duty station. In applying this
more restrictive definition of dependents, the Comptroller General
has ruled that an employee who, being divorced with his ex-wife
having legal custody of their children, and who, after being overseas
for more than a year gained legal custody and control of the children,
was not entitled to the children's transportation at Government expense
to join him at his post overseas. They were not within the definition
of "immediate family" as they were not members of his household at
the time he was assigned overseas. B-166113, 26 Feb 69.3, 26 Feb 69.
3. This Office and the Comptroller General have ruled on
questions similar tol in the past and, for the most
part, it has been held that where custody is in the mother the employee
father has no entitlement to transportation of his children at Government
expense. In a 1969 opinion, this Office held: "Notwithstanding the broad
definition of dependents, and consistent with government travel law
generally, we believe the purpose and meaning of the and
regulation are that the cost of travel of an employee's children to visitFOlAB5
him and return to their place of residence with their mother when he is
assigned abroad may not be paid in those instances in which the
children are in the legal custody of their mother and reside with her."
OGC 69-2073, 3 Nov 69.
25X1A
4. Comptroller General opinions on fact situations
analogous to Mr.~ase are as follows: It is believed
that in conjunction with an examination of the questions of
n J",
t.;
 Approved For Release 2003165121 ' C1A-RDP84-00709R000300090001-0
custody, dependency and immediate family. the Government must also
look at the purpose of the Travel. in this regard the Comptroller
General has ruled that a Navy enlisted man was not entitled to travel
expenses for dependent wife who had taken two weeks' leave from
her job in Pennsylvania to travel to and from San Diego, California,
as she was not establishing her place of residence there. In fact,
the Navy enlisted man was about to be released from active duty. In
looking at the pur ose of the travel, the Comptroller stated: "Your
wife apparently preferred to live in McKees Rocks while you were
on sea duty, and since she arranged for only a short period of leave
from her employment at that place, it appears clear that the purpose
of her trip to Long Beach was to visit you and probably to accompany
you home, rather than for the purpose of establishing a residence at .
that place." "The law does not contemplate the furnishing of trans-
portation at Government expenses under such circumstances, . . . ."
33 Comp. Gen. 307 (1954). In another case dealing directly with the
question of custody and travel, the Comptroller ruled that an employee
of the Foreign Agricultural Service, Department of Agriculture,
stationed in Buenos Aires, was not entitled to transportation at
Government expense for his two children to visit him. The divorce
decree in that case had obligated him to pay their mother $150.00
per month for their maintenance and support as well as their schooling,
medical bills and travel from their mother's home to his and return
each year and, it "granted him custody of his children two months
out of each year." The Comptroller viewed the two-month period of
custody given to the father each year as a permissive right to visit
the employee father with their actual residence being with the mother.
He concluded the children could "not be considered as dependents for
the purpose of charging the Government with the expenses of their
travel." B-129962 (1957).
25X1A
25X1A
25X1A
25X1A
5. In a subsequent case, the employee, like was
stationed in The divorce had provided that the two
children were in the joint custody of the employee and his former
wife and he wanted to take them to~ to live with him following
its home leave, it being understood that they would be members of
his household in II one residing with him for a period of
approximately one year, the other, residing long enough to finish
his last two years of high school. The Comptroller General stated:
"If the two natural children of Mn do, in fact, return to
with the employee to reside with him for the length of time
indicated in the information transmitted here - approximately a year
in the case of his daughter and longer in the case of his son - it is not
-3-
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 25X1A
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unreasonable to regard such children as becoming members of the
household of the employee at the time of their return with tu~,_ hii
u and his.
second cziifn +.. r .. -
os
B-129962 cited supra, discussed the question to
Therein "the legal re, custody and control of the two minor children"
was in the mother but the father was to "have the actual physical
custody and control of the two minor children for the entire summer
vacation each year." The General Counsel found that the children's
legal residence was with the mother and that residence was not
altered by the father's temporary custody of them during the summer
vacation each year. Accordingly, the children could not be considered
"dependents for the purpose of charging the Government with their
expenses of travel."
properly may be certified for payment." 44 Comp. Gen. 443 (1965).
Yet another case which was passed upon by the General Counsel,
GAO, on 25 February 1974, and issued as an "Ind
It
utclr one-way transportation from the United States to
6. This Office believes it important to examine both the
question of 'cusp and the ose of travel for which reimburse-
ment is sought. We start from the basic premise that a Government
employee has no right to reimbursement for travel except where the
c erne ?.+ ... _____ ~ _ , , _
FOIAB5 itle 5 of the U.S. Code, there
are authorities which provide for reimbursement of the travel cost
to an employee going abroad and for his dependents or "immediate
family . " The Comptroller General and this Office have ruled that
where legal custody is not with the employee, there is no entitle-
ment to travel or allowances. Also, we have ruled on custody in
one parent and no expression of custody. Now we are f
d
ace
with a
situation of "joint custody" where the periods of custody between the
father and mother during the year are specifically established
with the mother having them for three-fourths of the year. 25X1A
In lo
ki
o
ng at the intended travel of Mr. children to
it seems clear that they do not intend t
t
k
o
a
e up residence there an
become members of his household for any appreciable period of time.
p'Pv t~v - a r- - --
states: "My
tentative plan is to have them come out here approximately
15 July and remain through the first of September." The purpose of
the trip is simply for visitation. On the questions of custody and
dependency, it would seem that the facts of Mr.~
ucase nlike those found in the cited Comptroller General opinions. It is not
true that the regulations upon which those opinions are based are
co'm ?ri'JT1
i-A
L
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 Approved For Release 2003/05/27: CTA-RDP84-00709R000300090001-0
somewhat more restrictive than the Agency's regulations. Not%vith-
standing, it is the opinion of this Office that neither the law nor Agency
regulations issued thereunder contemplate summer visitation
travel at Government expense as sought by Mr were 25X1 A
Mr. I children to truly establish residence i and become
members of his household for a substantial period of time as was the case 25X
in 44 Comp. Gen. 443, we are of the opinion that they might be found
to be members of Mr.O household and accordingly, entitled to
travel at Government expense. 25X1 A
7. If I can be of any further assistance, please advise.
25X1 A
25X1A
/EA Support
DD/M&S
;~ti1 y ri~'J
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Assistant Ge er Counsel
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Appeals of Escrow Leave Forfeiture
1. Escrow leave -cs recognized formally by Agency regulations as
25X1e^xly as 11 December 195 sup~leyent sneci f led in parag -aph
3a "When an e +loyee is integrated into another Federal department,
establislment, Agency or organization, annual and sick leave to his
credit on the date of integration will remain to his credit in this
'gcncy pending his return to the Agency from the organization into
which he was irate : atcd."
2. The Agency maintained an escrow leave account for each indi-
vidual. One reason for this device was cover related - to -arevent a
new employee of the Department of State from appearing on its bcoks .ri.th
a considerable existing balance of leave.
3. In any event, the escrow leave account for each individual
tended to remain sequestered and inviolate. one individual had diffi-
culty in using this account for leave purposes. In practice, he had
to take leave ;,rit:nout pay from his cover organization in order to use
his escrow leave. Since this practice could raise ainistrative
questions within the cover organization, integrated employees, for the
most part, did not touch their escrow accounts and tended to build u-o
the cover organization leave account to the limit of the legal maximum..
Dena nds of assignments, availability of home leave, and. the generous
annual leave accumulation combined to mean that most integrated emnla ees
really were not in a position to use all of the various types of leave
that were accumulating.
4. During this period, the Agency did not have access to Derartment
of State leave records. The individual benefited from two leave records
managed by two separate org-anization_s not in communication on this matter.
In couseauence, many individuals approached the legal leave iii it in
both Agency and cover orb nization leave accounts. ''his meant that they
were substantially above the legal leave ceiling intended by Cow ess.
5. Cormumications on leave accounts improved between the Agency
and the Department of State. It became a--parent v twin the Agency that
the escrow system inadvertently was permit t tirsr the accur.-u aticm of annual
25X1eaTe in excess of the legal limit. l3 !love=her 1965, addressed.
the problem thus:
"If, at the beginning of the leave year, the combination of
the annual leave balance from the cover facility and the balance
of the annual leave in the employee's Organization escrow leave
account results in a total annual leave balance in excess of the
naxinun which the employee may legally carry over from leave yea.-
to leave year, the excess Est be forfeited as of the beginning
of the leave year."
 25X1 6.
thay:
n- v ppCog Vrd3e ease 2003/
927cvC t D zb079M#MOBgDgk001-0
'2. ...',:rider no circumstanans are es^_roy it-c:.-V8 ?}+-~c ou ti
i_tJndeC as means of a lu-wing eTT.ployecs E L %cS' 12L a ____ __
m,L.Lte. ^a-r, are u*-ovid?e_1? by 1,2-w. (Undo=ii. 1 Lg in ori