RECENT DEVELOPMENTS CONCERNNG INTELLIGENCE CHARTER LEGISLATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86-00101R000100020007-5
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 7
• Document Creation Date: December 14, 2016
• Document Release Date: November 21, 2002
• Sequence Number: 7
• Publication Date: October 10, 1979
• Content Type: FORM

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SUBJECT. (Optional)
Recent Developments Concerning Intelligence Garter Legislation
FROM: EXTENSION NO
Deputy ie , nformation Services
Staff DATE
5B2830 Headquarters 10 October 1979 25,
TO: (Officer designation, room number, and DA
TE
building)
OFFICER'S
COMMENTS (Number each comment to show from whom
RECEIVED
FORWARDED
INITIALS
to whom. Draw a line across column otter each comment.)
Director of
Communications
As promised, attached is
a copy of the proposed revisions
2. Director of
to the charter legislation. This
Data Processing
material covers developments on
charter legislation through
3.
Director of
mid-September 1979 and, combined
Finance
with. the revised drafts of Titles
I, II, III, and IV previously
4. Director of
sent you, represents a complete
Logistics
update on all the information
received from OGC concerning
s. Director of
charter legislation.
Medical Services
If you have any comments
6. Director of
please provide them directly to
Personnel
in OGC and an 25
info copy to C/ISS.
r. Director of
25
Security
Director of
Training
9. r I
~
- r
Attachment:
10.
As stated
2
DC/ISS :rtes (10 Oct 1979)
4I
Distribution:
Orig - Addressee Watt
12.
1 - Ea other addressee w/at
1 - ISS Subj
1 - Legislation Chrono
13. Atts: OGC 79-08737 dtd 9 25-79,
Subj:
Recent
Developments Concerning Intellige
nce Ch
rter
Legislation w/atts Titles'I,.II,
III
15.
FORM
-79
610
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OGC 79-08737
25 September-1979
MEMORANDUM FOR: D/DCI/CT
D/DCI/RM
C
A
AD/NFAC
SA/DDS&T
Comptroller
Inspector General
A/DCI/PA
OLC
Special Assistant
to the General Counsel for Intelligence
Community Affairs
SUBJECT: Recent Developments Concerning Intelligence
Charter Legislation
1. This is to inform you of developments concerning
intelligence charter legislation through mid-September 1979.
2. In early July the General Counsel, as Chairman of
the Charter Legislation Working Group, provided the Senate
Select Committee on Intelligence (SSCI) with Administration
drafts of Titles I,--II and III. Title I establishes the
structure of the Intelligence Community and a Director of
National Intelligence with broad powers, responsibilities,
and coordination authorities. Title II (Limitations on
Intelligence Activities) grants authority and establishes
parameters for the collection of intelligence and other
information concerning United States persons, including the
use of electronic surveillance:__and,physical search directed
against such persons abroad. Title III (Physical Searches
Within the United States) would amend the Foreign Intelligence
Surveillance Act of 1978 by adding limited authority for
physical searches within the United States in certain circum-
stances.
3. In mid-July the SSCI staff provided the Working
Group, which is composed of representatives of the DCI,
Attorney General, Secretaries of State and Defense, Director,
FBI, other entities of the Intelligence Community, and the
NSC staff, with counterdrafts of Titles I and II and comments
on Title III.
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After the Working Group had reviewed the counterdrafts, Dan
Silver, as Chairman, met with Bill Miller, SSCI Staff' Director,
and other members of the staff in an attempt to resolve the
differences between the SSCI and Administration drafts. The
materials provided herewith will provide you with the details
of this segment of the charter legislation process:
Tab A - SSCI Title I Draft
Tab B - Analysis of Title I
Tab C - SSCI Title II Draft
Tab D - Memorandum for the-Record
dated 27 July 1979 concerning
Title I discussions with the
SSCI staff
Tab E - SSCI Comments on Title III
Tab F - Memorandum for the Record
dated 8 August 1979 concerning
Title I
Tab G - Memorandum for the Record
dated 6 September 1979 concerning
discussions with the SSCI staff
of Title I and Title II issues
Tab H - Memorandum for the Record
dated 7 September 1979 concerning
discussions of Title II issues
with the SSCI staff
A classified Memorandum for the Record dated 19 September
1979 concerning an SSCI staff-DoD-Working Group discussion
of issues regarding Don's conduct of special activities is
being provided separately.
4. In the future I hope to keep you informed about charter
developments on a more timely basis. We have already received
new drafts of Titles I,,II and III from the SSCI staff which
incorporate many of the compromises that were discussed
during the recent negotiations. These will be distributed
shortly for your information. In addition, we and the SSCI
staff are close to a final draft of Title IV, the CIA charter.
I will distribute that draft when available.
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Attachments:.
As stated 2
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 27 July 1979
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25X1 FROM
SUBJECT: Major Topics of Recent Discussions Concerning
Title I Between Representatives of the Charter
Working Group and the SSCI
1. Attendees:
Working Group -.Dan Silver 25X1
SSCI - Bill Miller (not at first meeting)
John Elliff
Keith Raffel
Dave Shaw
Mike Epstein
Martha Talley
2. The SSCI representatives were advised by Dan
Silver that the Administration is expecting counterproposals
endorsed by the SSCI members themselves, rather than staff-
level revisions, in response to the Presidentially-approved
Administration positions. Bill Miller understood this but
believed the staff-reeds to propose and discuss alternatives
in order to develop issues and options, and to identify
areas of impasse.
3. Dan Silver stated there was no point in discussing
the SSCI provision (Section 141) imposing restrictions on
use of various types of organizations for cover or of persons
in particular categories for operational purposes since the
SCC had clearly rejected such restrictions and the President
had affirmed that decision. The SSCI staffers intimated
that the inclusion of these restrictions was of particular
interest and concern to one or more of the senators.
4. The staff members were particularly exercised over
the Administration provision (Section 241(a)(2)) allowing
Presidential waiver of all restrictions in a period covered
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out that the scope of suc a waiver wou e imi e o the
60 day period allowed under the War Powers Resolution, would
apply only to the extent necessary in the specific circum-
stances, and would be reported to the SSCI and HPSCI. This
was not seen as sufficiently safeguarding against abuse,
however, and the spectre of waiving FISA (incorporated
through Title III) and all limitations on the FBI's counter-
intelligence activities was developed in the context of the
Vietman War and domestic dissent. The staffers envisioned a
waiver authority limited to specific restrictions, such as
that in their Section 141(e), or applying only outside the
U.S. We agreed to study this point further.
5. The staffers asserted that it was important to the
committee that a provision (their Section 114(h)) be included
requiring the DNI to evaluate and report to the Congress as
to the quality of national intelligence. Dan Silver described
this as unnecessary, since such evaluation would be a necessary
part of the DNI authorities already included in Title I, and
as counterproductive, since it may be seen as an abdication
of one of the committee's responsibilities. We agreed to
review the provision, however, and suggested legislative
history as a vehicle for making this point.
6. The staff version of Section 142 dealing with
domestic publication was discussed,and^Dan Silver explained
the problems the Working Group had encountered in drafting
satisfactory language regarding the "blowback" problem. All
agreed, however, that the intelligence entities had no
interest in clandestine funding of publications for purposes
of distribution in the U.S. Accordingly, it was suggested
that such a provision might be acceptable if vague phrases
such as "likely redistribution" were avoided. The staff
believed that-such ambiguity' could be clarified in legislative
history.
7. John Elliff of the SSCI staff focused on the
reinserted criminal penalty for unconsented human drug
testing (Section 144) and stated that there seemed to be
-more congressional interest, at least at the staff level, in
this provision than in any other. We pointed out that
existing law created a national commission and a requirement
for guidelines in this area, but the staffers believed this
to be inadequate since it provided no criminal penalty. Dan
Silver acknowledged that fact but noted that this provision
would not be limited to intelligence employees and would
introduce into the charter debate a complex mix of independent
issues that would necessarily involve non-intelligence
agencies and other coiwnittees of Congress. One staffer
stated that if a criminal penalty is to be included to
protect the identities of intelligence officials, this
provision should be included to protect the public at large.
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the Ethics In Government Act was escri e to e s a ers
in the context of their proposed conflict of interests
provision (Section 146). When it was explained that the
sole exception for intelligence employees under the current
conflict of interests laws was protection of financial
statements from public disclosure, their interest in this
provision seemed to wane slightly.
9. It was acknowledged that the most significant
.stumbling blocks in the SSCI revision of Title I are the
special activity provisions (Sections 131-135). Bill Miller
was especially adamant that these activities, and other
types of intelligence activities of particular sensitivity,
should not be treated trivially and without careful review _
.and consideration. Dan Silver retorted that a basic difficulty
is the fact that the definition of "special activities"
sweeps broadly across all non-collection activities and
included many activities that are far from "essential" or
conducted under "exceptional circumstances affecting the
vital interests of the United States." Bill Miller's view
was that broad programs rather than specific actions, should
be examined in this light and that the nation had been
damaged in the past by programs, such as the U-2 flights and
the funding of student groups, that had been allowed to
endure too long. Dan Silver acknowledged the need for
careful consideration and review and noted that the Administration
position created the structure required for that purpose.
As for the standard to be applied, he noted that any statutory
heightening of the current system under Hughes-Ryan would be
presumptively unacceptable.
10. As to particular provisions, it was suggested that
Section 131 might be acceptable if modified to constitute
solely a statement of purpose rather than an implication of
additional legal considerations. It was suggested this
could be accomplished by an introductory clause to the
effect that "It is the purpose of the procedures and standards
established under this part that ...."
11. As to Section 132(a), there was some discussion of
the deleted language authorizing DoD special activities
concerning military matters. The staffers were concerned
that this would impair central coordination by CIA of special
activities abroad.
12. As to Section 133, it was recognized that if the
standard for Presidential approval were to be changed from
"essential" to "important" we would not be very far apart.
Dan Silver described the practical need for approving "routine"
activities at the SCC level, Bill Hiller noted SCC approval
would be possible with a Presidential finding as to particular
categories under the SSCI proposal.
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13. Concerning Section 134, Dan Silver stated his
opinion that such a provision would be an insulting direction
to the President, and that the basis for such a provision
had disappeared since E.O.s 11905 and 12036 had created a
structure and procedures for review of intelligence activities.
Any decision by a future President to scrap this apparatus.,
would surely come only after careful consideration. Bill
Miller expressed the thought that this provision is intended
to tell a President to be concerned about activities other
than covert action. The staffers suggested substituting
language providing only that the President may promulgate
guidelines regarding review and approval of activities that
are "exceptionally risky" or involve "great risks." Dan
Silver acknowledged that such a provision would merely state
an expectation and would be meaningless to the point of
probable acceptability.
Distribution:
1 - DBSilver
1 - OGC SUBJ: LEGISLATION-Charters (ARC holding) ni
1 - ARC Signer
1 - OGC Chrono
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