SSCI INTELLIGENCE CHARTER DRAFTS OF 6 NOVEMER 1979

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86-00101R000100020005-7
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 17
• Document Creation Date: December 14, 2016
• Document Release Date: November 21, 2002
• Sequence Number: 5
• Publication Date: December 10, 1979
• Content Type: MF

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MEMORANDUM FOR: General Counsel
Office of Medical Services
SSCI Intelligence Charter Drafts of
fi November 1979
REFERENCE: OGC 79-10881 dated 4 Dec. 1979, Same Subject
FROM:
SUBJECT:
1. We have reviewed the SSCI's revised draft of
Title IV of intelligence charter dated 6 November 1979
and note that all reference to authorization to conduct a
medical program has been deleted.
2. I raised this point and our concern with your office
after the last revision, apparently to no avail.
3. The authority to conduct a medical program was
deleted as being redundant. If that is the case, it is
requested that OMS be advised in writin of the authorit
for CIA to conduct a medical program
F-- I
cc: C/ISS
oil I 1 1C "I io a.1d
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4 December kl~9
Special Assistant to the General Counsel
SUBJECT: SSCI Intelligence Charter Drafts of
6 November 1979
1. Attached for your information and review are the
SSCI's revised drafts of Titles I - VII of intelligence
charters dated 6 November 1979, a transmittal memorandum to
the Charters Working Group, and my analysis of Title I. A
similar analysis of Title II will be provided to you when
completed.
2. I lof this office and I have met with
representatives of several components over the past two
months in an effort to respond to questions and concerns
about Titles I (National Intelligence), Title IV (CIA), and
Title VI (NSA). We feel the issues are now well-known and
defined. Nevertheless, I would appreciate your review of
these latest drafts for any new issues or concerns from the
perspective of your operations or interests.
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CENTRAL INTELLIGENCE AGENCY
WASHINGTON, D.C. 20505
MEMORANDUM FOR: Intelligence Charters Working Group
FROM: Daniel B. Silver
General Counsel
SUBJECT: SSCI Charter Drafts of 6 November 1979
1. Attached for your information and review are the
subject drafts and two SSCI memoranda on charters principles
and issues. As I understand it, the attached package was
provided to the Vice President's office on 14 or 15 November.
The NSC Staff forwarded the drafts to me on 23 November.
2. The status of the new drafts is unclear. According
to the SSCI staff, they represent at least the views of
Senator iiuddleston, Chairman, Subcommittee on Charters and
Guidelines. Other members of the Subcommittee were given
the opportunity to make an input to the drafts, but the
drafts apparently were not considered at a formal Subcommittee
session.
of Title I in comparison to its Administration
counterpart. lie will provide a similar analysis of Title II
as soon as possible. There will be a Working Group meeting
on Monday, 10 December, at 2:00 p.m.,
by the Working Group to the SCC principals.
to discuss
of a report
Daniel B. Silver
Attached for your review is an analysis prepared by
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SUBJECT: SSCI Charter Drafts of 6 November 1979
Distribution:
Brent Rushforth, DoD
NSA
Jeffrey Smith, State
Kenneth C. Bass, DoJ
James Sturgis, FBI
J. Foster Collins, Treasury
Arnold Donahue, OMB
Donald Gregg, NSC Staff
Dennis Clift, Office of the Vice President
Inside Distribution:
1 - Each Working Group Member
1 - OGC SUBJ: LEGISLATION - Charters (c.f. GWC - ni)
1 - OGC Chrono
1 - GWC Signer
OGC/GWC:ba (30 Nov 79)
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CHARTER PRINCIPLES
PRINCIPLE 1: There should be a presumption against
investigating any American person who is not suspected of
wrongdoing.
Positive foreign intelligence: Scientists who have
attended an international symposium on lasers, international
oil company executives, Senators who have met with foreign
leaders -- all could be said to possess "essential" foreign
intelligence. When should clandestine collection be
directed against these innocent Americans? The current draft
allows the President, and only the President, to authorize
the direction of "covert techniques" against "innocent"
Americans for positive foreign intelligence where the
information is essential to the national security. The key
safeguard is the requirement of Presidential assent before using
covert techniques. However, in the current draft, "covert
techniques" is not defined. Thus, if a technique such as
physical surveillance or recruitment of informants is not
included in a statutory definition (or in subsequent guidelines),
then those techniques could be used without Presidential
assent.
An alternative approach (not restated in the current draft)
might be to require Presidential assent any time techniques
other than interviews, physical surveillance for the purpose
of identification, or checks of government records is used.
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Whichever approach is taken, it should not be seen as
sanctioning widespread use of intrusive techniques against
Americans who have done nothing wrong.
Once the above question of standards for collection of
positive foreign intelligence is resolved, there still remains
the question of who should be allowed to collect such
intelligence about Americans in the United States. It would
seem best that only one agency -- the FBI -- operating under
the direct supervision of the Attorney General, should "target"
innocent Americans through clandestine methods within the
United States for this purpose.
Potential source investigations: The recruitment of
potential sources within the United States is often essential
to the work of the intelligence community. At the same time,
investigations of potential sources of information or operational
assistance conflict with the general principle that Americans
must have done something wrong before they will be investigated.
Strict safeguards must be instituted for these kinds of
cases. Perhaps the kinds of techniques to be permitted
in potential source investigations should be limited to
interviews of knowledgeable persons, physical surveillance
for identification purposes only, and searches of governmental
records. If, in fact, other techniques must also be used,
perhaps they should be approved by the Justice Department
or the head of the collecting agency.
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PRINCIPLE 2: Special activities should be regarded as
exceptional acts.
The Church Committee concluded "that covert action must
be seen as an exceptional act, to be undertaken only when the
national security requires it and overt means will not suffice."
Strict procedural safeguards are required to ensure that
covert action is used only in appropriate circumstances.
Review by the National Security Council is required in the
first instance. In authorizing a special activity, the
President should have to find it is important (if not essential)
to the national security, that it is consistent with American
principles, that overt means will not suffice, and that the
risk justifies the activity. Although the President may
approve an entire category of special activities when the
activities themselves do not entail substantial risks,
resources, or consequences, in other cases Presidential
attention should be focused upon each activity. Finally,
to ensure proper Congressional oversight, the Intelligence
Committee should have prior notice of special activities;
at the same time, the Hughes-Ryan reporting to other committees
will no longer be necessary.
To ensure accountability, the conduct of all special
activities should be centralized in the Central Intelligence
Agency. A limited exception, however, may be made for the
Department of Defense during a period of hostilities or in
regard to military matters.
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PRINCIPLE 3: The integrity of fundamental institutions
must be maintained.
Restrictions placed on the use of clerics, journalists,
academics, etc. for paid operational uses or for cover
purposes will help maintain the integrity of certain
fundamental institutions of our society. These restrictions
should include: (1) the CIA may not use U.S. religious
organizations, media organizations, educational institutions,
the Peace Corps, or any Government program designed to
promote education or the arts for cover purposes; (2) the
CIA may not use as a covert source of assistance a United
States person who is traveling under the sponsorship and
support of any U.S. educational institution, except with
prior consent of that institution; and (3) the CIA may not
pay for covert assistance any U.S. cleric, U.S. journalist,
or U.S. person who is outside the United States under the
sponsorship and support of a Government program designed to
promote education or the arts.
Nothing ought to prohibit voluntary contacts or the
voluntary exchange of information with any person in any
entity of the intelligence community.
. PRINCIPLE 4: The intelligence committees must be kept
"fully and currently informed."
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Congressional oversight: The linchpin of the charters
as a whole is that the two intelligence committees be kept
"fully and currently informed." It should be recognized that
the charters place a considerable burden on the intelligence
committees to act more or less as proxies of the American
public. Given this understanding, charters should provide
a structure that permits the intelligence community to perform
necessary activities, but at the same time ensure accountability
through adequate Congressional oversight.
KR/sep
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TO:
FROM:
DATE:
November 6, 1979
SUBJECT: Charter Draft
The following are the major differences-we perceive
between the latest draft and the interagency working group
position.
Title I
(1) Special activities purpose. Sec. 131 states that
the purpose "is to ensure that special activities are undertaken
only to meet exceptional circumstances affecting important
interests of the United States." The working group opposes
"exceptional circumstances." However, that language is needed
to make clear the intent that covert action is not to be used
unless the exceptional procedural requirements of this Act are
followed.
(2) Agencies conducting special activities. Sec. 132(a)
allows special activities only by CIA-, or by DOD during
hostilities or with Presidential approval for "military matters."
The working group would let any agency conduct special
activities, if the President or the NSC (for low-risk activities)
determines that the U.S. objective is more likely to be
achieved. However, the working group approach is unnecessary,
because Sec. 132(b) permits other agencies to "support" CIA
or DOD special activities.
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(3) Presidential authorization for special activities.
Sec. 133 requires Presidential approval for each special
activity that involves "substantial resources, risks, or
consequences." The President must also "determine that"
special activities are consistent with U.S. values, overt
alternatives are unlikely to succeed, and benefits justify
risks and consequences. The working group opposes the
"consequences" standard, and prefers that the President
"consider" the factors. However, the "consequences" standard
is needed to include an action, such as overthrow of a
government, that may involve few resources with assured
secrecy and thus little risk. A Presidential "determination"
is needed because "consideration" implies that the President
could approve special activities even if the requirements were
not satisfied.
(4) Clerics, Journalists, Academics. Sec. 142 retains
the prohibitions on cover and paid operational use. The
working group proposes a substitute that requires only
guidelines. (Attached is a re-draft of the working group
substitute.)
(5) Oversight. Sec. 152 on "fully and currently
inf?rmed" begins:; "Under such administrative procedures
as the President may establish consistent with all applicable
autrzorities and duties, including those conferred by the
Constitution upon the legislative and executive branches,
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the head of each entity...." The working group position
is unclear, but there is concern to protect the President's
constitutional prerogatives. This language respects those
prerogatives by recognizing the President's authority to
prescribe the administrative procedures for informing the
Intelligence Committees and by expressly acknowledging the
constitutional separation of powers.,
Title II
(6) FI collection review. Sec. 205(b)(3) requires,
the President to reaffirm with prior NSC review any FI
collection in extraordinary circumstances against U.S. persons
using covert techniques that continues beyond one year or
changes substantially, in technique or purpose. Sec. 205(d)(2)
requires annual review, with notice to the Attorney General
or a designee, of ongoing FI collection against U.S. persons
using any clandestine means. These new review requirements
may be acceptable to the working group.
(7) Separate FI covert technique targets. Sec. 205(c)
permits FI collection against two categories of U.S. persons
with approval of a Presidential designee in unusual circum-
stances to collect necessary foreign intelligence.-- a
corporation or other commercial entity directed and controlled
by a.foreign power, and a senior official of a foreign
government. These separate standards were suggested by the
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working group, but the approval requirements are somewhat
more stringent.
(8) FI collection in the U.S.-by CIA. Sec. 205(d)(1)
allows CIA to target the two caregories of U.S. persons listed
above within the United States by clandestine means through
established sources. The working group proposes that CIA
be allowed to target any U.S. person in the United States
to collect foreign intelligence by clandestine pretext interviews.
However, such broad CIA authority within the United States is
unnecessary. Demonstrated CIA needs are served by permitting
only the targeting of foreign-controlled commercial entities
and senior foreign officials who are U.S. persons, as well
as by the revised potential source authority below.
(9) FI collection in the U.S. by FBI. Sec. 205(d)(1)
also requires that FBI collection against U.S. civilians in
the United States must be "with notice to the Attorney
General or a designee." This may be acceptable to the
working group, because current guidelines are even stricter.
(10) Potential source collection. Sec. 207 allows
any entity, including CIA within the United States, to target
U.S. persons to collect information about potential sources.
The potential source may be a foreigner, and the U.S. person may be
targeted to get information needed to recruit the'foreigner.
This responds to CIA concerns. However, collection using
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more than interviews (pretext included), physical surveil-
lance for identification, and name checks must be approved
by the agency head with notice to the Attorney General or a
designee. Such notice is also required for collection beyond
six months. These stricter approval requirements may raise
problems for the working group, but they are needed because
of the enormous scope of potential source collection.
(11) Collection for security purposes. Sec. 208 limits
collection about breaches of contractual obligations by
employees or former employees to that necessary to refer the
matter to the Department of Justice. Written findings for
the use of clandestine means in any security inquiries are
also added. The limit on contractual obligation investigations
may raise problems for the working group, but is justified
because only the Justice Department may take action in cases
of breach of contract.
Title III
(12) Physical search in the U.S. Title III conforms
as closely as possible to the Foreign Intelligence Surveillance
Act, despite working group proposals for modifications.
Title IV
(13) CIA services of common concern. Sec. 414 (10)
does not specify CIA services of common concern, such as
responsibilities.
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CIA proposes that they be added, but there is resistance
in the Committee to specifying CIA responsibilities in
this manner.
(14) Criminal penalties for disclosure. Sec. 443(b)
provides criminal penalties for government employees and
former employees who breach secrecy agreements and disclose
identities of agents under cover. CIA prefers separate
legislation, like the House Committee bill, that is not limited
to employees and former employees. However, the Committee
wants to address this matter in the charter, and limitation
to employees and former employees is needed to avoid First
Amendment problems.
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Attachment
RESTRICTIONS ON COVER AND OPERATIONAL USE OF
CERTAIN CATEGORIES OF INDIVIDUALS
Sec. 141. (a) In consultation with the head of each
entity of the intelligence community, the Director of
National Intelligence or, for the Federal Bureau of Inves-
tigation, the Attorney General shall establish guidelines
and procedures for that entity which shall--
(1) limit the use of any affiliation, real
or ostensible, with any United States religious
organization, United States media organization,
the Peace Corps, or any United States Government
program designed to promote education or the arts,
humanities, or cultural affairs through international
exchanges, and
(2) limit the paid operational use of any
person who --
(A) is a United States person who follows
a full-time religious vocation;
(B) is a journalist accredited to any
United States media organization;
(C) is regularly involved in the editing
of material for, or acts to set policy for or
provide direction to, any United States media
organization; or
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(D) is a United States person who is
traveling or temporarily residing outside the
United States under the sponsorship and support
of a United States educational institution or a
United States Government program designed to
promote education or the arts, humanities, or
cultural affairs,
in such manner as to protect the integrity of such
professions and institutions.
(b) The guidelines and procedures established by
the Director of National Intelligence under subsection (a)
shall be reviewed prior to promulgation by the National
Security Council or a committee thereof designated by the
President for that purpose. No such review may be made
by the National Security Council or a committee thereof
unless the following officers, or if unavailable their
representatives, were present: the Secretary of State,
the Secretary of Defense, the Attorney General, the
Secretary of Education, and the Director of National Intelligence
(c) The Director of National Intelligence or the
Attorney General shall provide the guidelines and procedures
established under subsection (a), and any amendments thereto,
to the House Permanent Select Committee on Intelligence and
the Senate Select Committee on Intelligence a reasonable
time prior to their effective date.
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