DRAFT SPECIAL ACTIVITIES ISSUE PAPER FOR SPECIAL COORDINATION COMMITTEE CONSIDERATION IN CONNECTION WITH PROPOSED CHARTER LEGISLATI

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86-00101R000100020011-0
• Release Decision: RIPPUB
• Original Classification: C
• Document Page Count: 87
• Document Creation Date: December 20, 2016
• Document Release Date: May 11, 2007
• Sequence Number: 11
• Publication Date: March 6, 1979
• Content Type: MF

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OGC 79-02171
6 March 19'79
,... .strp
DD/ARe,
MEMORANDUM FOR : Director of Central Intelligence No
Deputy
Director
of
Central Intelligence
Deputy
Director
for
Operations
Deputy
Director
for
Science & Technology
Deputy
Director
for
Administration
Legislative Counsel
Director, National Foreign Assessment
Center
Deputy to the DCI for Collection Tasking
FROM Anthony A. Lapham
General Counsel
SUBJECT Draft Special Activities Issue Paper for
Special Coordination Committee Consideration
in Connection with Proposed Charter
Legislation
1. Action Requested: It is recommended that you
review the attached materials in anticipation of further SCC
action. I I
2. Background: By his memorandum of 16 February,
David Aaron assigned responsibility to various agencies for
the preparation of issue papers concerning several of the
remaining charter legislation topics requiring discussion by
the SCC and determination of Administration positions. The
topics and the responsible agencies were Counterintelligence
(Justice/ FBI), Special Activities (CIA), Personnel and
Physical Security Investigations (CIA), and Recruitment of
U.S. Persons, Including Source Investigations (Justice). 25X1
3. Attached is a copy of the draft of the Special
Activities issue paper we prepared in coordination with
appropriate components of the DDO and furnished to the NSC
last week for further distribution and comment. Justice and
the FBI are still developing the counterintelligence paper.
As you will note from the covering memorandum to David
Aaron, we have asked for an explanation of the term "physical
and personnel security investigations" before determining
whether this Agency is best suited to discuss that topic,
and have suggested that this Agency, not Justice, should
draft the paper concerning recruitment and potential source
investigations. F-1
OGC Has Reviewed DOJ Review Completed.
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4. As the development and exchange of these-topical
issue papers continue, we shall be in contact with appro-
priate Agency components to solicit views as to the papers
themselves, and assistance in preparing Agency positions
with regard to the issues to be deliberated at meetings of
the SCC.
5. Recommendation: It is recommended you review the
attached draft issue paper concerning special activities.
Anthony ' Lap ham
MAL
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CONFIDENTIAL
WASHINGTON
February 16, 1979
NSC-1030
MEMORANDUM FOR: THE VICE PRESIDENT
THE SECRETRAY OF STATE
THE SECRETARY OF DEFENSE
THE ATTORNEY GENERAL
THE DIRECTOR, OFFICE MANAGEMENT
AND BUDGET
CHAIRMAN, JOINT CHIEFS OF STAFF
DIRECTOR OF CENTRAL INTELLIGENCE
SUBJECT: Intelligence Charters
Now that the SCC has completed consideration of positive
foreign intelligence collection involving U.S. persons,, it
will begin consideration of the remaining restrictions
issues. In preparation for these deliberations, outlines of
proposed charter provisions for SCC consideration should be
prepared as follows: u
Covert Action by CIA
Counterintelligence by Justice/FBI
Personnel and physical security investigations by
Recruitment of U.S. persons including source
investigations by Justice
25X1
25X1
The outlines should follow the general model of the one
prepared by Justice on positive foreign intelligence and
should be submitted to the NSC no later than February 26.
4.
Zbigniew Brzezinski
CONFIDENTIAL
Review on February 15, 1983
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 Central Intelligence A cncy
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now,
OGC 79-02114
2 March 1979
MEMORANDUM FOR : David Aaron
Deputy Assistant to the President
for National Security Affairs
FROM Anthony A. Lapham
General Counsel
SUBJECT Intelligence Charters - Draft Issue
Paper Concerning Special Activities, and
Foreign Intelligence Collection and
Counterintelligence Activities
Enclosed, in response to your memorandum of 16 Feb-
ruary, is a draft paper for SCC consideration that addresses
the central issues, as we see them, concerning the review
and approval of special activities. Because the Senate
draft legislation raises many of the same issues with regard
to approval and review of foreign intelligence collection
and counterintelligence activities, there has been included
the basic question of whether similar controls should be
applied in those areas. If that question is answered in the
affirmative, the same range of issues raised with regard to
special activities will likewise have to be confronted with
regard to collection and counterintelligence activities. It
is recommended this paper be distributed to various depart-
ments and agencies involved in this process to determine
whether it fairly presents the issues that should be ad-
dressed, and that an SCC meeting be scheduled shortly there-
after to seek resolution.
Your memorandum also assigned responsibility to the
Department of Justice for preparing a similar paper regard-
ing "Recruitment of U.S. persons, including source investiga-
tions . . . , " and to CIA regarding "Personnel and physical
security investigations ...." As to the former topic, both
we and Justice believe that this Agency is best suited to
prepare at least the basic draft of such a paper, and we
shall begin to do so with your approval. As to the latter
topic, there is some uncertainty as to what subject area is
to be covered and thus which agency should be responsible
for preparing the issue paper. Further clarification would
be helpful in this regard.
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In another regard, your memorandum implies that only
the four areas it identifies continue to present issues that.
will require resolution by the SCC. Unless it will be the
Administration position that these areas, plus collection of
foreign intelligence that concerns U.S. persons and assassina-
tions and human experimentation, should be the only areas
within the coverage of the charter, there appear to be other
issues requiring SCC attention, as for example issues respect-
ing retention and dissemination, relations with persons
engaged in particular professions and activities (clergy,
newsmen, exchange programs, etc.), organizational cover,
and distribution of information abroad. Clarification
on this point also would be useful.
Anthony A. Lapham
Enclosure
cc: NSC Coordinator
OLC
C/p
OGC
OGC
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SPECIAL ACTIVITIES
INTELLIGENCE-CHARTER ISSUES _PAPER
FOR THE SPECIAL COORDINATION COMMITTEE
I. Background: This paper presents the range of basic
issues that require resolution in order to develop an Admin-
istration position concerning appropriate intelligence
charter legislation authorities and controls for the approval
and conduct of special activities in support of the foreign
policy objectives of the United States. It is based upon a
presumption that some form of existing conditions for the
conduct of special activities - SCC review, Presidential
approval, reporting to Congress - will continue to be
acceptable in a statutory context. If any part of this
presumption is questioned the nature of the issues framed in
this paper will be changed. Because of the similarity of {
the issues involved, the question of the appropriate review
and approval process to be required for foreign intelligence
collection operations and counterintelligence activities has
been included in this paper.
The issues relate to whether:
a. Repeal of the Hughes-Ryan Amendment should be
sought.
b. All special activities should be treated in a
similar manner.
c. There should be a higher or lower standard for
Presidential approval of special activities.
d. Presidential approvals should be required to be
in writing.
e. There should be a requirement for timely,
prior, or other reporting to Congress.
f. There should be a required annual review and
reaffirmation of ongoing special activities.
g. Membership and attendance requirements for the
NSC committees reviewing special activities should be
specified.
h. A review and approval process similar to that
applied to special activities should be required also
for selected foreign intelligence collection operations
and counterintelligence activities.
i. There should be specific prohibitions of assas-
sination and particular types of special activities.
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V?r
II. Current Practice: The Foreign Assistance Ac; of 1961,
as amended in 1974 by the Hughes-Ryan Amendment (22 U.S.C.
2422), provides that no funds may be expended by or on
behalf of CIA for any special activity (euphemistically
described in the statute as "operations in foreign countries,
other than activities intended solely for obtaining necessary
intelligence") except pursuant to a finding by the President
that it is "important to the national security" and unless
reported "in a timely fashion" to the "appropriate committees"
(now seven, earlier eight) of the Congress.
The Hughes-Ryan Amendment has been construed to require
specific Presidential findings with respect to special
activities that are of major scope or involve particular
foreign countries, but to permit general findings with
respect to special activities that are of a more routine
nature and are conducted on a world-wide basis.. These
specific and general findings are subject to consideration
by the SCC, which forwards them, along with its recommenda-
tions, to the President in accordance with Executive Order
12036. Under current practice, approved findings are signed
by the President and notice is then given, prior to_implementa-
tion of th~e activities, to the Senate Foreign Relations,
Appropriations, Armed Services, and Intelligence committees,
and to the House Foreign Affairs, Appropriations, and Intelli-
gence committees. The House Armed Services Committee deter-
mined in late 1978 it no longer desired to be notified of
these findings. If requested, the committees may be briefed
in further detail on the activity.
Executive Order 12036 specifies the membership of the
SCC for this purpose and requires attendance by the desig-
nated members except in unusual circumstances. The order
also requires an annual SCC review of all ongoing special
activities and a report to the SCC.
The order similarly assigns responsibilities to the SCC
for review of proposals for sensitive foreign intelligence
collection operations reported to the SCC chairman by the
DCI and determined by the chairman, under Presidential
standards, to require SCC review and approval. The SCC
membership and attendance in this regard, and a requirement
for annual review of ongoing operations, also are specified
in the order. The. SCC, under similar membership and atten-
dance requirements, is responsible for approving counter-
intelligence activities, again under standards established
by the President, but no annual review of these activities
is required. Standards to implement these provisions of
the order have yet to be adopted.
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III. Issue - Repeal of the Hughes-Ryan Amendments
Because it is likely the other requirements of the
Hughes-Ryan Amendment would be more or less duplicated in
any charter, repeal of this statute would be intended prim-
arily to reduce to the two intel_lig_ence-committees?the
would implement one of the recommendations of the Church `mil Z
Committee and would lessen the burdens and security problems
associated with the current reporting requirement.
The SSCI draft charter legislation circulated for
executive branch comment contained a provision repealing the
Hughes-Ryan Amendment as late as January 1978. This pro-
vision was deleted, however, when the bill was introduced
as S.2525 in February. The deletion of this repealer is
symptomatic of a congressional reluctance to resolve the
competing jurisdictional claims of the various committees
receiving these reports, and Administration insistence on
this point may force the issue.
The other committees may insist on retaining their
rights to receive these reports, however, or it may be that
the SSCI and HPSCI will demand a quid pro quo, for example,
a higher approval standard or a prior reporting requirement
for pressing for repeal of Hughes-Ryan.
IV. Issue - Differentiation Among Special Activities:
Currently, a general Presidential finding is deemed to
encompass all actions of a "routine" nature within the
category of activities approved by the finding. If actions
of a "nonroutine" nature are contemplated or become necessary,
a separate process of Presidential finding and congressional
reporting is required.
___A11 activities not "intended solely for obtaining
ante ence,t11Tratterhow mundane an noncontroversial
s rq
now must be subjected to the same rigorous approval and
reporting process. The Senate proposals to date have re-
tained a requirement for similar approvals of all special
activities. It may be possible and desirable: however, to
seek to establish the routine/nonroutine distinction in the
law and require that only nonroutine actions need be subject
to SCC review, Presidential approval based upon a specific
standard, and reporting to the Congress. Routine actions
could be required to be approved only at the interdepartmental
level, as was the case to a large extent from 1974 until
1977, or even, if necessary at the SCC level. The statute
might require guidelines, approved by the President, to
govern the determinations as to what is routine and what is
nonroutine and thus requires higher approvals and reporting.
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Such a dual approval system would alleviate much cif the
burden, delay, and undue complexity which may inhibit the
performance of such "routine" special activities.
Of course, such a proposal may be seen as a device to
avoid proper review, approval, and accountability and to
return to more free-wheeling practices. These fears may be
alleviated by requiring the Presidentially-approved guide-
lines be provided to the SSCI and HPSCI and emphasizing
control through effective oversight.
IV. Issue - Approval Standard:
The Hughes-Ryan Amendment currently requires that
special activities be approved by the President on the basis
of a finding that such actions are "important to the national
security." -
S.2525 would have required a four part Presidential
finding for approval of special activities - (1) "essential"
to U.S. national defense or foreign policy, (2) benefits
outweigh risks of disclosure, (3) overt and less sensitive
alternatives would not likely achieve the objectives, (4)
circumstances require use of extraordinary means. In its
most recent submissions, however, the SSCI has proposed a
standard for special activities attributed to Secretary
Vance in testimony to the Church Committee on 5 December ILLEGJ.B
1975 - (1) overt measures will not suffice (but not all
overt measures must be attempted before resorting to special
activities), (2) consistency with dec lare~ American policies,
(3) vital or essential to the national interest (judged,
perhaps, in the context of larger, long-term policy rather
than in terms of each particular project). In actuality,
Secretary Vance's prepared statement on that date stated
only that such activities should be "very rare" and engaged
in only when they are "absolutely essential" to the national
security and that there should be specific approval and
reporting procedures. Further, in the question and answer
period that followed Mr. Vance agreed with Senator Hart that
one of the criteria for approvals could be whether it is
believed "a majority of the American people would favor that
operation if they were given all the facts." See, Senate
Select Comm. to Study Governmental Operations with Respect
to Intelligence Activities, Intelligence Activities, S. Res.
21, Covert Action, 94th Cong., 1st Sess., Vol. 7 at 54, 88
(Dec. 4, 5, 1975).
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The use of a high standard is, of course, intended to
deter excessive or unnecessary resort to special activities.
The "important" standard used in the Hughes-Ryan Amendment
has served this purpose to some extent although the national-
and international moods have also been factors in a lessened
U.S. use of such activities. The basic choices in this
regard are to retain the current "important" standard, to
accept a higher standard such as "essential" or "vital" that
would make it more difficult to approve these activities, to
propose a lower standard such as "necessary," or to advocate
the position there should be no standard in statute. If it
is agreed that some basic standard is acceptable, it must be
determined what, if any, additional conditions - such as
inadequacy of overt means, consistency with announced U.S.
foreign policy or public opinion, benefits outweighing
risks -should be part of the decision to undertake any such
activity.
V. Issue - Written Findings:
The Hughes-Ryan Amendment requires a Presidential
finding but does not specify any particular form for such
findings. Since 1974 when the Amendment became law, however,
all Presidential findings relating to special activities
have been in writing. The Senate bill would have required
written Presidential findings for each approved special
activity.
As a general principle, a requirement for written
findings may be opposed on the ground that it is unnecessary
and Congress should not be allowed to specify the form of
any Presidential decision. However, the requirement for a
written finding is premised on a desire for specific account-
ability and to avoid a return to "plausible denial" for
these activities. Written findings also best ensure clear
guidance and authority for those responsible for implement-
ing the findings.
VI. Issue - Notice to Congress:
Hughes-Ryan requires notice to Congress "in a timely
fashion" of special activities that have been approved by
the President. Currently, while that phrase has not been
construed to require reporting "prior" to implementation,
there are understandings with each of the seven committees
now notified that they will be advised in general terms
immediately after a finding and before initiation of the
activity. The Senate bill would have requ ri ed prior notice
of the facts and circumstances of any approved special
activity, except in extraordinary circumstances where notice
within 48 hours after implementation would be allowed. The
Senate bill also included a disclaimer to the effect that
this notice requirement did not imply a need for congress-
ional approval.
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Despite the disclaimer, mandated prior notice? may
facilitate the development of an undesirable degree of
congressional control of and interference with these activ-
ities. Providing prior notice to date, however, has not had-
such adverse consequences. A prior reporting requirement
may be the requisite "trade-off" for SSCI and HPSCI support
of repeal of the Hughes-Ryan Amendment and reducing the
reporting obligation to only those two committees, a much
more important element in the process.
VII. Issue - Annual Reviews:
Currently, under Executive Order 12036, the SCC is
responsible for performing an annual review of ongoing
special activities and preparing a report for the National
Security Council. The Senate bill would have required, at
least annually, an NSC review and a reaffirmation by the
President of the original finding underlying each ongoing
special activity in order for it to continue.
Again it may be concluded that such a requirement is
not an appropriate detail for enshrinement in statute. How-
ever, its purpose is, of course, to force periodic reassess-
ment and termination of activities which may continue of
their own momentum and yet have outlived their usefulness.
VIII. Issue - SCC Membership and Attendance:
Executive Order 12036 prescribes the membership of the
SCC for purposes of considering proposed special activities
and making recommendations to the President, and provides
that the members must attend except in unusual circumstances
when they are unavailable and their designated representa-
tives may attend in their stead. The Senate bill would
essentially have duplicated these provisions.
The obvious purpose of these requirements is to ensure,
insofar as this is possible, serious, high level considera-
tion of proposed special activities, as well as the heightened
control and accountability that may be presumed to result from
mandatory attendance by specified officials.; These detailed
specifications of executive branch affairs may be objection-
able, however, on the basis of undue congressional intrusion,
loss of future flexibility, and unwarranted assumptions of
executive irresponsibility.
An alternative to prescribed membership and attendance
requirements or no such requirements, may be acceptance of
a statutory requirement that the President provide for these
matters in an executive order.
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IX. Issue - Similar Standards for Approval of Selected
Foreign Intelligence and Counterintelligence 'Activities:
The entire range of issues raised with regard to review,'
approval, and reporting of special activities, may be raised
also in connection with certain types of foreign intelli-
gence collection operations and counterintelligence activities
deemed to be of greater concern and potential risk than
other such activities.
Currently, Executive Order 12036 requires, under stand-
ards established by the President, "sensitive" foreign
intelligence collection activities be referred to the chair-
man of the SCC by the DCI for "appropriate" review and
approval, and that the SCC annually review ongoing activities
of this nature and report to the NSC. Similarly, although
no annual SCC review is required, the order provides an SCC
responsibility to review counterintelligence activities
requiring SCC approval under standards established by the
President. No standards have as yet been adopted to govern.
either approval process.
The Senate bill would have required Presidential criteria
for identifying important, sensitive foreign intelligence
collection operations and counterintelligence activities
requiring either NSC or Presidential review and approval.
These reviews would include consideration of stated factors,
meetings with prescribed attendance, written findings by the
President as to foreign intelligence collection activities
(including that the information sought is "essential"),
prior notice to the SSCI and IHPSCI, and annual NSC or Pres-
idential reviews and reaffirmations.
'Applying the same, or even more, elaborate procedures
to these activities as are now applied to special activities
does not seem warranted on public policy, substantive, or
pragmatic grounds. The purpose is, of course, to ensure the
same degree of high-level control, accountability, and
careful consideration as is applied to special activities.
An acceptable middle ground between no statutory controls
and elaborate controls may be found in adoption of the
executive order approach which retains Presidential flex-
ibility to determine which foreign intelligence or counter-
intelligence activities, if any, require SCC, NSC, or Pres-
idential review and approval, and what form that review and
approval should assume.
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X. Issue - Prohibition of Assassination and Particular
Types of Special Activities:
a. Assassination. The Senate bill would have amended -
the U.S. criminal code to provide a maximum of life imprison-
ment for any person in the U.S. or any U.S. Government
employee abroad who conspired or attempted to assassinate
any foreign official abroad. Executive order 12036 bars
assassination activities on the part of U.S. Government
employees but provides no penalties.
Since, historically, it has been U.S. intelligence
employees that have been involved in such assassination-
related activities as have occurred, it may be argued that
such a_bar is appropriate in the intelligence charter legisla-
tion. On the other hand, it may be opposed as part of that
legislation on the ground that, even though not limited to
intelligence employees, including such a bar and criminal
penalties in the charter unnecessarily memorializes the past
and stigmatizes the intelligence community. Further, the
review, approval, and oversight mechanisms created by the
bill will be sufficient to prevent such activities.
Several alternatives would be to (1) include a detailed
criminal provision in the charter as an amendment to the
criminal code, (2) oppose. such a provision in the charter
but support it as a separate initiative to amend the criminal
code, (3) support a simple bar as in the executive order
with no criminal penalty, leaving such a penalty to a sep-
arate initiative, (4) oppose any bar.
b. Certain Special Activities. The Senate bill would
have barred explicitly initiating any special activity
intended or likely, to result in (1) support of international
terrorism, (2) mass destruction of property, (3) creation of
food or water shortages, floods or epidemics, (4) use of
chemical biological, or other weapons banned by treaty, (5)
violent overthrow of democratic governments, (6) torture, or
(7) support of any violation of human rights by foreign
police, security, or intelligence services.
This type of prohibition is supported by the argument
that certain types of activities are inherently abhorrent,
unacceptable, and unnecessary as a means to accomplish U.S.
foreign policy objectives and should be foresworn by law.
Opposition to such a provision is based on the implication
that what is not specified is allowable and the definitional
problems raised (e.g., nonviolent overthrow of democratic
governments would be favored and it is not always clear what
is a "democratic government"), and the sufficiency of the
elaborate executive-legislative oversight mechanism created
by the charter.
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1%W loop,
OGC 79-02290
8 March 1979
MEMORANDUM FOR : Director of Central Intelligence
Deputy
Director
of
Central Intelligence
Deputy
Director
for
Operations
Deputy
Director
for
Science & Technology
Deputy
Director
for
Administration
Legislative Counsel
Director, National Foreign Assessment
Center
Deputy to the DCI for Collection Tasking
FROM Anthony A. Lapham
General Counsel
SUBJECT Modifications of SCC Issue Paper Con-
cerning Special Act tivities
1. Action Requested: It is requested that the attached
pages be inserted, as explained below,,into the draft SCC
Issue Paper concerning special activities that you received
from me under cover of a memorandum dated 6 March 1979 (OGC
79-02171).
2. Background: The attached pages represent a sub-
stitute page 1 and a new page 8 to be added to the SCC Issue
Paper. The effect is to add and describe a new issue iden-
tified as "i." on the first page, i.e., whether the charter
legislation should contain specific prohibitions on assas-
sinations and certain types of special activities. These
modifications have been made at the request of the National
Security Council Staff in the interests of completeness,
despite our understanding that the SCC Task Force chaired by
David Aaron had decided at its initial meeting in December
1978 in favor of a simple bar on assassination and against
any prohibition on particular types of special activities.
3. Recommendation: The attached page 1 should be
substituted for the existing page 1, and the attached page 8
should be added as the last page, of the SCC Issue Paper on
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--- -- ----- DDlAt
MEMORANDUM FOR : Director of Central Intelligence
'7q- COQ
VIA Deputy Director of Central Intelligence
FROM Anthony A. Lapham
General Counsel
SUBJECT Special Coordination Committee Meeting
Scheduled for 26 March Concerning Charter
Legislation Treatment of Special Activities
1. Action Requested: It is requested you review and
consider this memorandum and the views of other Agency
components that may wish to comment, and adopt the recom-
mended positions when the SCC meets to arrive at an Admin-
istration position as to charter provisions dealing with
special activities. (See Tab A.)
2. Background: By my memoranda to you of 6 and 8
March 1979 (attached as Tab B), I provided you with mate-
rials relating to an SCC issue paper concerning special
activities and suggested they be reviewed in anticipation of
further SCC action. The issues described in that paper (part
of Tab A) will be the subject of SCC deliberation on 26
March. This memorandum explains the issues to be discussed
and makes recommendations concerning the positions to be
advocated. The issues and recommendations, all in the con-
text of special activities, are:
a. Repeal of the Hughes-Ryan Amendment - support
repeal and reporting to only the two intelligence com-
mittees.
b. Scope of Presidential requirement - support
limited scope that would allow lesser approvals for
"routine" special activities.
c. Standards for Presidential approval - support
continued use of a standard of "important" to national
security with no additional conditions.
DECLASSIFIED WHEN SEPARATED
FROM ATTACHMENTS.
CONFIDE TIAL
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d. Written Presidential approval - support written
approval.
e. Reporting to Congress - support continued use
of a "timely" reporting requirement.
f. Annual review and reapproval - support an
annual SCC review.
g. Membership and attendance at SCC reviews -
oppose membership and attendance requirements.
h. Treatment of sensitive collection and counter-
intelligence activities - support continued authority
in the President to determine which of these activities
should be reviewed and in what manner.
i. Specific bars on assassination and certain
other types of special activities - support a bar on
assassination but oppose bars on particular types of
special activities.
3. Adoption of these recommendations would result in
essentially the following approval process for these activ-
ities. The initiation of any special activity of a signif-
icant nature would require a written finding by the Pres-
ident, based upon SCC review and recommendation, that the
proposed special activity is "important to the national
security." Approved special activities would be required to
be reported to the two intelligence committees "in a timely
manner." More routine special activities could be approved
by the DCI, or the SCC, in accordance with standards and
guidelines established by the President. The membership and
attendance requirements for SCC meetings to review and make
recommendations as to, or to approve special activities, as
well as the overall requirements for SCC review and approval
of foreign intelligence collection and counterintelligence
activities, and the performance of required annual SCC
reviews of these various types of activities, would also be
matters for resolution by standards and guidelines estab-
lished by the President. These guidelines would be avail-
able to the two intelligence committees. No special activity
could be initiated that involved any assassination attempt,
but no other specific types of special activities would be
barred by statute.
4. Repeal of Hughes-Ryan. As you know, the Hughes-
Ryan Amendment requires reporting special activities to
seven, formerly eight, committees of the Congress. Repeal-
ing that requirement and substituting a requirement for
reports to the two intelligence committees would do much to
restore a sense of security to the planning, approval and
implementation of special activities. This proposal is
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likely, of course, assuming in the first instance the.intelli-
gence committees are willing to support it, to involve a
long and difficult struggle between the various committees
with competing views of the scope of their jurisdiction. It
may be unrealistic, in any event, to even attempt to exclude
the two appropriations committees from this process. How-
ever, all the substantive arguments for security, efficiency,
and even oversight in its pure sense, as well as one of the
Church Committee recommendations, support such a proposal
and the benefits to be gained justify the difficulty entailed.
Recommendation: It is recommended you support repeal of the
Hughes-Ryan Amendment and the substitution of a requirement
to report special activities only to the two intelligence
committees.
5. Scope of Presidential Review Requirement. Current
law and practice do not differentiate between "routine" and
"nonroutine" special activities - all special activities
must be authorized by Presidential findings. There is no
legal reason, however, although there could be serious
drafting problems, why the law could not be written to
require Presidential approval and congressional reporting of
only special activities that are "nonroutine" in the sense
that their implementation would entail a substantial commit-
ment of resouces, funds, equipment, or personnel, or would
be likely to result in some significant development abroad.
Other, less ambitious, special activities that could be
categorized as "routine" might be subject only to entity
head or SCC approval. This is likely to be a subject of
some controversy since such a two-tiered approval system
will be viewed by some as another step backward in terms of
controlling the intelligence entities. If necessary to meet
these objections, Presidential guidelines could be required
to be established to assist in identifying the different
categories of special activities and the approval procedures
to be followed for each type. Also if necessary to alleviate
fears of eluding oversight of special activities, such
guidelines could be required to be provided to the intelli-
gence committees. Recommendation: It is recommended you
support Presidential approval of only "nonroutine" forms of.
special activities coupled with entity head approval of
"routine" special activities. If necessary, this position
may be supplemented by adding SCC review of "routine" activ-
ities, Presidential guidelines to govern the drawing of
these distinctions, and provision of these guidelines to the
intelligence committees.
6. Standards for Presidential Approval. The Hughes-
Ryan requirement that the President find that proposed
special activities meet a standard of "important to the
national security" has not proven in and of itself to be a
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deterrent to special activities that can be reasonably
justified in terms of furthering U.S. foreign policy goals .
abroad. However, the SSCI would, at least linguistically,
raise this standard to "vital" or "essential," and add to it
the further conditions that overt means of achieving the
same goal be found insufficient and that special activities
be consistent with declared U.S. policies. (See page 4 of
the SSCI position paper attached as Tab C.) Even assuming
that these requirements are diluted somewhat by the inclu-
sion in legislative history of the SSCI's explanatory state-
ments to the effect that not all overt means must be examined
before resorting to special activities, and that particular
special activities that may not meet the "vital" or "essential"
standard may be justified in "light of larger, long-term
policy frameworks," there is no question but that the net
effect of this proposed standard would be a raising of the,
threshold for approval to a level that could be expected to
inhibit the ability of the U.S. to pursue any but the most
significant forms of special activity. The idea of justifying
special activities that cannot be termed "essential" on the
ground that they meet some perceived long-range goal instead,
when the law requires meeting an "essential" standard, is
ill-considered. This would be less of a problem, although a
problem nonetheless, if it is determined that only "non-
routine" special activities should be subject to Presidential
approval and thus to this high standard. The alternatives
of including no standard or a lower standard such as "neces-
sary" in statute are likely to be politically untenable, and
would generate a largely meaningless debate since the current
"important" standard has not been a real burden. Recommenda-
tion: It is recommended you support maintenance of the
current standard of "important to the national security."
7. As for the notion of adding further conditions,
such as consideration of overt means and consistency with
public U.S. policies, this would appear to serve only to
encumber the process further. It is theoretically true that
such limitations could reduce the number of instances in
which special activities might be conducted where overt
efforts would suffice. However, given the inherent limita-
tions of special activities in terms of both security and
resource commitments, as well as the elaborate approval
gauntlet required to be run, these instances will likely be
rare. A requirement of consistency with publicly declared
U.S. policies would be more troublesome since candor is not
always the essence of diplomacy and situations will almost
certainly occur in which stated or implied U.S. policy
differs somewhat from actual but undeclared U.S. policy
respecting the same matter. Recommendation: It is recom-
mended you oppose further conditions on the Presidential
authority to approve special activities.
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8. Written Presidential Approval. There is currently
no specific requirement that the Presidential approval of
special activities be written but written approvals have
developed as the norm because of the practical need for some
record as to just what it is that has been proposed and
authorized. Even with a system of written approvals, how-
ever, it has not always been clear whether a particular
element of an activity was authorized by a finding or
required a separate finding. A system allowing oral approvals
would result in even more difficult problems not only in
terms of accountability and oversight, but also in implementa-
tion of the special activities themselves. Agency officials
charged with carrying out these activities could be left
with insufficient guidance as to the nature and scope of the
authority upon which they will be forced to rely by the law.
Recommendation: It is recommended you support a requirement
for written findings by the President.
9. Reporting to Congress. While current practice is
to notify the "appropriate" congressional committees of a
Presidential finding in general terms immediately after the
finding is issued, and before the special activity autho-
rized is actually initiated, the Hughes-Ryan Amendment
requires only "timely" notice. The "timely" notice require-
ment is a comfortable one because it allows some discretion
to be exercised by both parties and it does not imply any
congressional approval role as to such activities. A statu-
tory requirement for reporting of Presidential approvals to
Congress "prior" to the initiation of the activity would be
somewhat more threatening and, in both implied and real
terms, would represent a greater potential for congressional
control of these activities. These difficulties would be
greatly reduced, however, although not entirely eliminated,
if the reporting requirement is limited to the two intelli-
gence committees. Acceptance of a "prior" reporting require-
ment may prove to be the ultimate price for this sort of an
arrangement. Recommendation: It is recommended you advocate
continuation of the current "timely" reporting requirement
in conjunction with reducing the number of recipient committees
by repealing Hughes-Ryan. If both goals cannot be reached,
a "prior" reporting requirement would correspond to current
practice and may be acceptable if limited to the two intelli-
gence committees.
10. Annual Review and Reapproval. Current practice
under Executive Order.12036 includes an annual SCC review
and report to the NSC regarding special activities. This
review has not proven harmful and, in light of the overall
loosening effect that is likely to be ascribed to this
special activities package, continuing such a requirement
may serve to lessen slightly the fears of persons who empha-
size continued oversight and accountability of special
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%wolf
activities. Thus, accepting an annual review may make it
easier to avoid added standards for Presidential approvals
such as consistency with declared U.S. policy since there
would be at least an annual reassessment of ongoing programs.
Recommendation: It is recommended you support the requirement
for an annual SCC review of ongoing special activities.
- 11. Membership and Attendance Requirements. Both
Executive Order 12036 and S.2525 include requirements that
particular officials be present at NSC subcommittee meetings
to review-proposed special activities and formulate recom-
mendations for the President, and that designated represen-
tatives may attend instead only in-unusual circumstances.
This is essentially a "good government" issue that centers
on the question of how far the law should go in attempting
to ensure that proposed special activities receive careful,
high-level consideration by executive branch officials who
later may be held accountable for their judgments. While
such provisions are appropriate in an executive order, that
these are management decisions better left to the President
and they should not be dealt with in specific detail in a
statute. Recommendation: It is recommended you oppose such
requirements and advocate the position that the statute
should only assign functions to the NSC or to a subcommittee
of the NSC to be constituted by the President.
12. Treatment of Sensitive Collection and Counter-
intelligence Activities. The same type of approval standards
and review procedures as would be applied under S. 2525 to .
special activities would also be applied under that proposal
for sensitive foreign intelligence collection and counterin-
telligence activities - including written Presidential findings
that "essential" foreign intelligence is sought, meetings of
designated officials required to consider specific factors,
prior notice to the two intelligence committees, and annual
reviews and reapprovals. The requirements of Executive Order
12036, by way of contrast, are much less formal and permit
greater discretion on the part of the President, the DCI,
the SCC chairman, and the SCC members as to the manner in
which they will fulfill their responsibilities in this
regard. The order requires, under standards yet to be
established by the President, that the DCI refer sensitive
foreign intelligence collection activities to the SCC chair-
man who determines what review and approval is appropriate,
that the SCC annually review and report to the NSC as to
ongoing activities of this nature, and that the SCC review
and approve certain counterintelligence activities. The
application of the same type of specific, detailed procedural
requirements to these intelligence activities as are applied
to special activities makes very little practical or substan-
tive sense. The possible risks and consequences, as well as
the potential for exposure and embarrassment due to apparent
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NW
inconsistency with declared U.S. policy, are not likely to
be as great and there is nowhere near the same historical
imperative for high-level review of these activities. In
addition, the imposition of these formalized procedural
requirements would result in the same drawing-out of the
process that has occurred with special activities and would
heighten the risk of a premature disclosure. Recommenda-
tion: It is recommended you advocate continued Presidential
authority to determine appropriate review and approval
procedures for foreign intelligence collection and counter-
intelligence activities. (Note: It is possible that questions
will be raised at the SCC meeting relating to the status and
nature of the procedures required by Executive Order 12036
for the approval of sensitive intelligence collection activities.
For your information and background, the most recent exchanges
of correspondence concerning those procedures are attached
as Tab D. You will recall that we and the Justice Department
have some differences on the content of these procedures, and
that the State Department would go even further than Justice
in opposing our draft procedures and has suggested the SCC
may have to resolve the differences.)
13. Specific Bars on Assassination and Certain Other
Types of Special Activity.. The NSC staff requested this
issue be added to round out the discussion of special activ-
ities despite our understanding that the Aaron group had
decided at its initial meeting in favor of a simple statutory
bar on assassination activities by U.S. employees (with the
question of criminal penalties to be decided in some other
forum) and against any bars on particular other types of
special activities (such as the bar in S.2525 on supporting
terrorism, mass destruction, food and water shortages,
floods, epidemics, torture, human rights violations, and use
of chemical or germ warfare). The bar on assassination is
politically and substantively unobjectionable. The bars on
specific types of activities are unnecessary, demeaning, and
definitionally impossible. Recommendation: It is recom-
mended you support a simple bar on assassination and oppose
specific bars on other types of special activities.
14. Recommendation: It is recommended you adopt the
positions recommended in this paper after consideration of
the views of the DDO and other appropriate Agency components.
cc: DDO
DDS&T
DDA
D/NFAC
OLC
C/P[
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NSCI
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1630
NATIONAL SECURITY COUNCIL pp )
WASHINGTON. D.C. 20506 C -~ ~- O ~I (l
March 16, 1979 v8111at
MEMORANDUM FOR: THE VICE PRESIDENT
THE SECRETARY OF STATE
THE SECRETARY OF DEFENSE
THE ATTORNEY GENERAL
THE DIRECTOR, OFFICE OF MANAGEMENT
AND BUDGET
CHAIRMAN, JOINT CHIEFS OF STAFF
THE DIRECTOR OF CENTRAL INTELLIGENCE
THE DIRECTOR, FEDERAL BUREAU OF
INVESTIGATION
SUBJECT: SCC Meeting on Intelligence Charter
Legislation
Attached is a paper prepared by CIA outlining the basic
intelligence charter issues concerning covert actions. This
paper will be the basis for discussion at the SCC meeting
scheduled for March at 10:00.
2(~
4~'
ine Dodson
Staff Secretary
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ft~
SPECIAL ACTIVITIES
INTELLIGENCE CHARTER ISSUES PAPER
FOR THE SPECIAL COORDINATION COMMITTEE.
I. Background: This paper presents the range of basic
issues that require resolution in order to develop an Admin-
istration position concerning appropriate intelligence
charter legislation authorities and controls for the approval
and conduct of special activities in support of the foreign
policy objectives of the United States. It is based upon a
presumption that some form of existing conditions for the
conduct of special activities - SCC review, Presidential
approval, reporting to Congress - will continue to be
acceptable'in a statutory context. If any part of this
presumption is questioned the nature of the issues framed in
this paper will be changed. Because of the similarity of -
the issues involved, the question of the appropriate review
and approval process to be required for foreign intelligence
collection operations and counterintelligence activities has
been included in this paper.
The issues relate to whether:
a. Repeal of the Hughes-Ryan Amendment should be
sought.
b. All special activities should be treated in a
similar manner.
c. There should be a higher or lower standard for
Presidential approval of special activities.
d. Presidential approvals should be required to be
in writing.
e. There should be a requirement for timely,
prior, or other reporting to Congress.
f. There should be a required annual review and
reaffirmation of ongoing special activities.
g. Membership and attendance requirements for the
NSC committees reviewing special activities should be
specified.
h. A review and approval process similar to that
applied to special activities should be required also
for selected foreign intelligence collection operations
and counterintelligence activities.
i. There should be specific prohibitions of assas-
sination and particular types of special activities.
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II. Current Practice: The Foreign Assistance'!''' c4 0
as amended in 1974 by the Hughes-Ryan Amendment (22 U.S.C.
2422), provides that no funds may be expended by or on
behalf of CIA for any special activity (euphemistically
described in the statute as "operations in foreign countries,
other than activities intended solely for obtaining necessary
intelligence") except pursuant to' a finding by the President
that it is "important to the national security" and unless
reported "in a timely fashion" to the "appropriate committees"
(now seven, earlier eight) of the Congress.
The Hughes-Ryan Amendment has been construed to require
specific Presidential findings with respect to special
activities that are of major scope or involve particular
foreign countries,-but to permit general findings with
respect to special activities that are of a more routine
nature and are conducted on a world-wide basis.. These
specific and general findings are subject to consideration'
by the SCC, which forwards them, along with its recommenda-
tions, to the President in accordance with Executive Order
12036. Under current practice, approved findings are signed
by the President and notice is then given, prior to implementa-
tion of the activities, to the Senate Foreign Relations,
Appropriations, Armed Services, and Intelligence committees,
and to the House Foreign Affairs, Appropriations, and Intelli-
gence committees. The House Armed Services Committee deter-
mined in late 1978 it no longer desired to be notified of
these findings. If requested, the committees may be briefed
in further detail on the activity.
Executive Order 12036 specifies the membership of the
SCC for this purpose and requires attendance by the desig-
nated members except in unusual circumstances. The order
also requires an annual SCC review of all ongoing special
activities and a report to the SCC.
The order similarly assigns responsibilities to the SCC
for review of proposals for sensitive foreign intelligence
collection operations reported to the SCC chairman by the
DCI and determined by the chairman, under Presidential
standards, to require SCC review and approval. The SCC
membership and attendance in this regard, and a requirement
for annual review of ongoing operations, also are specified
in the order. The SCC, under similar membership and atten-
dance requirements, is responsible for approving counter-
intelligence activities, again under standards established
by the President, but no annual review of these activities
is required. Standards to implement these provisions of
the order have yet to be adopted.
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III. Issu epe
Because it is likely the other requirements of the
Hughes-Ryan Amendment would be more or less duplicated in
any charter, repeal of this statute would be intended p
arily to reduce to the two intelligence committees. the
number of committees notified of such findings. This step
would implement one of the recommendations of the Church
Committee and would lessen the burdens and security problems
associated with the current reporting requirement.
The SSCI draft charter legislation circulated for
executive branch comment contained a provision repealing the
Hughes-Ryan Amendment as late as January 1978. This pro-
vision was deleted; however, when the bill was introduced
as S.2525 in February. The deletion of this repealer is
symptomatic of a congressional reluctance to resolve the
competing jurisdictional claims of the various committees
receiving these reports, and Administration insistence on
this point may force the issue.
The other committees may insist on retaining their
rights to receive these reports, however, or it may be that
the SSCI and HPSCI will demand a quid pro quo, for example,
a higher approval standard or a?prior reporting requirement,
for pressing for repeal of Hughes-Ryan-
IV. Issue - Differentiation Among Special Activities:
Currently, a general presidential finding is deemed to
encompass all actions of a "routine" nature within the
category of activities approved by the finding. If actions
of a "nonroutine" nature are contemplated or become necessary,
a separate process of Presidential finding and congressional
reporting is required.
All activities not "intended solely for obtaining
intelligence," no matter how mundane and noncontroversial,
now must be subjected to the same rigorous approval and
reporting process. The Senate proposals to date have re-
tained a requirement for similar approvals of all special
activities. It may be possible and desirable, however, to
seek to establish the routine/nonroutine distinction in the
law and require that only nonroutine actions need be subject
to SCC review, Presidential approval based upon a specific
standard, and reporting to the Congress. Routine actions
could be required to be approved only at the interdepartmental
level, as was the case to a large extent from 1974 until
1977, or even, if necessary at the SCC level. The statute
might require guidelines, approved by the President, to
govern the determinations as to what is routine and what is
nonroutine and thus requires higher approvals and reporting.
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Such a dual approval system would alleviate mush ?f the
burden, delay, and undue complexity which may inhibit the
performance of such "routine" special activities.
Of course, such a proposal may be seen as a device to
avoid proper review, approval, and accountability and to
return to more free-wheeling practices. These fears may be
alleviated by requiring the Presidentially-approved guide-
lines be provided to the SSCI and HPSCI and emphasizing
control through effective oversight.
IV. Issue - Approval Standard:
The Hughes-Ryan Amendment currently requires that
-special activities be approved by the President on the basis
of a finding that such actions are "important to the national
security."
5.2525 would have required a four part Presidential
finding for approval of special activities - (1) "essential"
to U.S. national defense or foreign policy, (2) benefits
outweigh risks of disclosure, (3) overt and less sensitive
alternatives would not likely achieve the objectives, (4)
circumstances require use of extraordinary means. In its
most recent submissions, however, the SSCI has proposed a
standard for special activities attributed to Secretary
Vance in testimony to the Church Committee on 5 December
1975 - (1) overt measures will not suffice (but not all
overt measures must be attempted before resorting to special
activities), (2) consistency with declared American policies,
(3) vital or essential to the national interest (judged,
perhaps, in the context of larger, long-term policy rather
than in terms of each particular project). In actuality,
Secretary Vance's prepared statement on that date stated
only that such activities should be "very rare" and engaged
in only when they are "absolutely essential" to the national
security and that there should be specific approval and
reporting procedures. Further, in the question and answer
period that followed Mr. Vance agreed with Senator Hart that
one of the criteria for approvals could be whether it is
believed "a majority of the American people-would favor that
operation if they were given all the facts." See, Senate
Select Comm. to Study Governmental Operations with Respect
to Intelligence Activities, Intelligence Activities, S. Res.
21, Covert Action, 94th Cong., 1st Sess., Vol. 7 at 54, 88
(Dec. 4, 5, 1975) .
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The use of a h standard deter excessive or unnecessary resort to special activities.
.The "important" standard used in the Hughes-Ryan Amendment
has served this purpose to some extent although the national--
and international moods have also been factors in a lessened
U.S. use of such activities. The basic choices in this
regard are to retain the current "important" standard, to
accept a higher standard such as "essential" or "vital" that
would make it more difficult to approve these activities, to
propose a lower standard such as "necessary," or to advocate
the position there should be no standard in statute. If it
is agreed that some basic standard is acceptable, it must be
determined what, if any, additional conditions - such as
inadequacy of overt means, consistency with announced U.S.
foreign policy or public opinion, benefits outweighing
risks--should be part of the decision to undertake any such
activity.
V. Issue - Written Findings:
The Hughes-Ryan Amendment requires a Presidential
finding but does not specify any particular form for such
findings. Since 1974 when the Amendment became law, however,
all Presidential findings relating to special activities
have been in writing. The Senate bill would have required
written Presidential findings for each approved special
activity.
As a general principle, a requirement for written
findings may be opposed on the ground that it is unnecessary
and Congress should not be allowed to specify the form of
any Presidential decision. However, the requirement for a
written finding is premised on a desire for specific account-
ability and to avoid a return to "plausible denial" for
these activities. Written findings also best ensure clear
guidance and authority for those responsible for implement-
ing the findings.
VI. Issue - Notice to Congress:
Hughes-Ryan requires notice to Congress "in a timely
fashion" of special activities that have been approved by
the President. Currently, while that phrase has not been
construed to require reporting "prior" to implementation,
there are understandings with each of the seven committees
now notified that they will be advised in general terms
immediately after a finding and before initiation of the
activity. The Senate bill would have required prior notice
of the facts and circumstances of any approved special
activity, except in extraordinary circumstances where notice
within 48 hours after implementation would be allowed. The
Senate bill also included a disclaimer to the effect that
this notice requirement did not imply a need for congress-
ional approval.
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Despite the dis,-.Laimer, mandated prior r?ice? may
facilitate the development of an undesirable degree of
congressional control of and interference with these activ-
ities. Providing prior notice to date, however, has not had-'
such adverse consequences. A prior reporting requirement -
may be the requisite "trade-off" for SSCI and HPSCI support
of repeal of the Hughes-Ryan Amendment and reducing the
reporting obligation to only those two committees, a much
more important element in the process.
Currently, under Executive Order 12036, the SCC is
responsible for performing an annual review of ongoing
special activities and preparing a report for the National
Security Council. The Senate bill would have required, at
least annually, an NSC review and a reaffirmation by the
President of the original finding underlying each ongoing
special activity in order for it to continue.
Again it may be concluded that such a requirement is
not an appropriate detail for enshrinement in statute. How-
ever, its purpose is, of course, to force periodic reassess-
ment and termination of activities which may continue of
their own momentum and yet have outlived their usefulness.
VIII. Issue - SCC Membership and Attendance:
Executive Order 12036 prescribes the membership of the
5CC for purposes of considering proposed special activities
and making recommendations to the President, and provides
that the members must attend except in unusual circumstances
when they are unavailable and their designated representa-
tives may attend in their stead. The Senate bill would
essentially have duplicated these provisions.
The obvious purpose of these requirements is to ensure,
insofar as this is possible, serious, high level considera-
tion of proposed special activities, as well as the heightened
control and accountability that may be presumed to result from
mandatory attendance by specified officials.. These detailed
specifications of executive branch affairs may be objection-
able, however, on the basis of undue congressional intrusion,
loss of future flexibility, and unwarranted assumptions of
executive irresponsibility.
An alternative to prescribed membership and attendance
requirements or no such requirements, may be acceptance of
a statutory requirement that the President provide for these
matters in an executive order.
6
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? IX. Issue - Similar standards for Approval
Foreign Intelligence and Counterintelligence Activities:
The entire range of issues raised with regard to review,,'
approval, and reporting of special activities, may be raised
also in connection with certain types of foreign intelli-=
genre collection operations and counterintelligence activities
deemed to be of greater concern and potential risk than
other such activities.
Currently, Executive Order 12036 requires, under stand-
ards established by the President, "sensitive" foreign
intelligence collection activities be referred to the chair-
man of the SCC by the DCI for "appropriate" review and
approval, and that the SCC annually review ongoing activities
of this nature and report to the NSC. Similarly, although
no annual SCC review is required, the order provides an SCC
responsibility to review counterintelligence activities
as been established
requiring SCC approval under
toygothe
have standards
vern
President. No standards yet
either approval process.
The Senate bill would have required Presidential criteria
for identifying important, sensitive foreign intelligence
collection operations and counterintelligence activities
requiring either NSC or Presidential review and approval.
These reviews would include consideration of stated factors,
meetings with prescribed attendance, written findings by the
President as to foreign intelligence collection activities
(including that the information sought is "essential"),
prior notice to the SSCI and HPSCI, and annual NSC or Pres-
idential reviews and reaffirmations.
'Applying the same, or even more, elaborate procedures
to these activities as are now applied to special activities
does not seem warranted on public policy, substantive, or
pragmatic grounds. The purpose is, of course, to ensure the
same degree of high-level control, accountability, and
careful consideration as is applied to special activities.
An acceptable middle ground between no statutory controls
and elaborate controls may be found in adoption of the
executive order approach which retains Presidential flex-
ibility to determine which foreign intelligence or counter-
intelligence activities, if any, require SCC, NSC, or Pres-
idential review and approval, and what form that review and
approval should assume.
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X. Issue - Prohibition of Assassination and 1-articular
Types of Special Activities:
a. Assassination. The Senate bill would have amended
the U.S. criminal code to provide a maximum of life imprison=ment for any person in the U.S. or any U.S. Government
employee abroad who conspired or attempted to assassinate
any foreign official abroad. Executive Order 12036 bars
assassination activities on the part of U.S. Government
employees but provides no penalties.
Since, historically, it has been U.S. intelligence
employees that have been involved in such assassination-
related activities as have occurred, it may be argued that
such a bar is appropriate in the intelligence charter legisla-
tion. On the other hand, it may be opposed as _part of that
legislation on the ground that, even though not limited to
intelligence employees, including such a bar and criminal
penalties in the charter unnecessarily memorializes the past
and stigmatizes the intelligence community. Further, the
review, approval, and oversight mechanisms created by the
bill will be sufficient to prevent such activities.
Several alternatives would be to (1) include a detailed
criminal provision in the charter as an amendment to the
criminal code, (2) oppose such a provision in the charter
but support it as a separate initiative to amend the criminal
code, (3) support a simple bar as in the executive order
with no criminal penalty, leaving such a penalty to a sep-
arate initiative, (4) oppose any bar.
b. Certain Special Activities. The Senate bill would
have barred explicitly initiating any special activity
intended or likely, to result in (1) support of international
terrorism, (2) mass destruction of property, (3.) creation of
food or water shortages, floods or epidemics, (4) use of
chemical biological, or other weapons banned by treaty, (5)
violent overthrow of democratic governments, (6) torture, or
(7) support of any violation of human rights by foreign
police, security, or intelligence services.
This type of prohibition is supported by the argument
that certain types of activities are inherently abhorrent,
unacceptable, and unnecessary as a means to accomplish U.S.
foreign policy objectives and should be foresworn by law.
Opposition to such a provision is based on the implication
that what is not specified is allowable and the definitional
problems raised (e.g., nonviolent overthrow of democratic
governments would be favored and it is not always clear what
is a "democratic government"), and the sufficiency of the
elaborate executive-legislative oversight mechanism created
by the charter.
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 RIRCH DAY". IND., CHAIRMAN
MARRY GOLDWATER. ARIZ., VICE CHAIRMAN
ADLAI E. STEVENSON. ILL
WILLIAM O. HATHAWAY, MAINE
WALTER O. HUDDLESTON, KY.
JOSErH R. RIDEN. JR., DEL
ROSCRT MORGAN, N.C.
GARY HART. COLO.
DANIEL PATRICK MOYHIHAN, N.Y.
DANIEL K. INOVYC, HAWAII
CLIFFORD P. CASE. N.J.
JAKE GARN. IJTAN
CHARLES MCC. MATHIAS. JR., MD.
JAMES ^. rEAR~SsOrN. KANS.
JOHN H. CHA1EEc, N.1.
RICHARD O. LOGAR. IND.
MALCOLM WALLOP, WYO.
ROBERT C. RYRD. W. VA., EX OFFICIO
HOWARD H. MAKER. JR, TENN.. EX OFFICIO
WILLIAM O. MILLER, STAFF DIRECTOR
EARL D. EISENHOWER. MINORITY STAFF DIRECTOR
November 22, 1978
IN REPLY PLEASE
REFER TO Q#6329
General Counsel
Anthony A. Lapham, Esquire
SELECT COMMITTEE ON INTELLIGENCE
PURSUANT TO S. RES. 150. 11TH CONGRESS
WASHINGTON, O.C. 20510
Central Intelligence Agency
Washington, D. C. 20505
Dear Tony :
I agreed in our November 15th meeting with Daniel
Aaron, Deanne Siemer, and Sam Hoskinson in the Situation
Room at t`he White House to write a letter to you with
initial reactions to the working group's redraft of
Title II of S.2525.
Before commenting on specific issues, I want to
.discuss briefly several basic conceptions in which the
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_-:..working group draft .departs from 5.2525. - It has been
= _---~=__our common purpose from"'the outset that -charter legis
First,'to provide the intelligence
.-community with' -the*ftthority to perform
those functions essential to our natioial
security, and - 1
Second, to set forth limitations', on
.certain intelligence activities to prevent
.the reoccurrence of abuses by our intelli-
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gence ;agencies.;
Over a'year-ago we,agreed to work"'together to try
to achieve a reasonable'" balance between the flexibility
needed.by intelligence agencies to perform their neces-
sary duties and the requirement to protect U.S.-citizens
from unnecessary intrusions into their privacy. Thus
far we have come to agreement-on the Executive Order
12036 and on:Titles V and VI,.and much of Titles I and IV.
Crrifeb ,. fczfez Zerafe
 ?~1
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Page Two
Anthony A. Lapham, Esquire
November 22, 1978 -
the Administration.
the present.form would,.I believe, be a disservice to
The working group draft of Title II, which includes
important sections of Title I of S.2525, appears to us
unbalanced. I do not believe that it would receive the
broad bipartisan' support necessary for its passage. The
provisions granting authority for certain intelligence
activities that could intrude on the rights of U.S. citi-
zens are now so broad that they could be, read, and would
be read by some, as legitimating what we all agree are
unjustifiable activities. The draft provides for few
real restrictions and no real assurance that appropriate
measures will be taken to guard against abuses. As it
now reads, the draft is inconsistent with the Select
Committee's point of view and with the public pronounce-
'ments of the Carter Administration. Its promulgation in
But in-several fundamental respects the working group
: gence agencies with the restrictions that are necessary.?
We are in, agreement with you and the working group
that 5.2525 should not be burdened with inflexible re-
strictions. We are in agreement that it is far prefer
.able to have a crisp, clear basic charter which combines
is delineation of the duties and missions of the intelli-
most important, is,effective oversight both within the
Executive and Legislative branches. Effective Congressional
oversight necessarily depends on full and current access
to information. The working group drafts oil both Titles
A basic concept contained in S. 2525, that we believe`- - -;
I and II suggest that even this fundamental premise,pre-
viously agreed to by the President and carefully worked
.out after extensive discussions in the preparation of .-
the Executive Order, is being set aside. - There is no
.way legislation can pass the Congress unless the provisions
contained in the. Executive Order, which are virtually iden-
tical-to S. Res. 400 and the corresponding House resolu
tion,.are included. The language chosen is informed by
Energy, and has worked well over the past two years; the
President has so informed this Committee, and all of the
20 years of practice with the Joint Committee on Atomic.,
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Anthony A. Lapham, Esquire
November 22, 1978-
Page Three.
intelligence entity heads have expressed satisfaction with
the current, arrangement. We find it hard to understand
why an agreed upon formula, carefully drafted, which spe-
cifically takes account of the Constitutional duties, pre-
rogatives and privileges of both branches, should have
been called into question.
It has been the Committee's position; and we thought
that of the Administration, that United States citizens
are entitled to know what activities may be directed
against them by their-own intelligence agencies, on what
occasions, and for what reasons. We agree that the in-
telligence-agencies of the United States have a legitimate
interest in conducting counterintelligence and foreign in-
telligcnce activities against a U.S. person when that per-
son is reasonably believed to be engaged in criminal .ac-
tivities such as sabotage or espionage. We also - acknowl-
edge that. there may be other non-criminal circumstances
such as p'otent2al source investigations when the activi-
ties of a United States person not engaged in criminal
activity may be of justifiable interest to. the intelli-
gence agencies.- In most-of these other non-criminal-cir
cumstances, however, the United States person is wholly
innocent of any.wrongdoing.- Therefore, special care must
be taken that.his rights are not being infringed.. The
..working group's draft provisions could be read to mean
that such United States persons are of interest and have
no real claim to protection from U..S. intelligence agen-
cies' collection of information on them.
At present, the catchall saving clause E in the work-
ing group draft go far beyond the emergency :clause pro-
visions of S.2525. These catchalls undercut the basic
intent of a charter to have clearly delineated authority
and well understood and reasonable. restrictions. Vesting
an absolute discretionary power in the Attorney General
or other key officials is unwise and undesirable and re-
calls the open-ended language of Sec.,(d)(5) of the -
National Security Act of 1947 which allowed the CIA:
"To perform such other-functions and
duties related to intelligence affecting the
national security as the National Security
Council may from time to time direct."
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Anthony A. Lap-ham, Esquire
November 22, 1978 -
Page Four
The working group draft.does not follow the precedent
set by the Foreign Intelligence Surveillance Act in.dealing
with surreptitious entries, mail openings, and overseas -
surveillance. That Act requires both a nexus of criminal
-activity and a court order before permitting electronic
surveillance for national security purposes. The excTp-_
tions and the procedures to be followed are fully delin _
eated. Use of other intrusive techniques, especially _
.surreptitious entries or "black bag jobs," require similar
safeguards.
Finally, the working group draft contains no standard,
or threshhold.for the conduct of special activities or sensitive.clandestine collectiQn. The Committee is of the
..view that such activities are necessary for the security
of our country. We.recognize that several of the restric-
tions in S.2525 may be unworkable. At a minimum, however,
we believe that there should be a standard for=the initia-
tion of these activities in the statute. The standard
articulated by Secretary Vance seems eminently suitable.
1This standard would require that:
.(1) Special'activities should be engaged
in only when overt measures will not be-able
.-to do the job required; -- although it is clear
_=-~ -- = that not 'all' overt measures must. first be tried,
(2) Special activities must be consistent
with declared American policies, and
(3) Special activities must.not'be.engaged
in unless-they are vital or essential to the
national interest.
We recognize that it may be very hard for particular -=:
projects to meet the "vital" or "essential" standard; they..
may be justified, however, in the light of larger, long-
term policy frameworks. It is our view that a reasonably
high standard should be in the charter so that special ac-
tivities are not used simply because the capability is
available. In-addition to a statutory standard, I believe
that, as in the most recent Executive Order, certain pro-
.; cedures for review, for feasibility and-risk assessment, as
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Anthony -,Arb L-apham, Esquire
November.22, 1978,
well as a formal approval procedure for these activities
must be spelled out in statute.
What follows are particular issues that are of-con-
cern.- This list is not intended to be a complete one,
but it does illustrate the most important issues.
.The Role of Congress
The intelligence community should serve not only the
Executive branch but also should provide Congress with in-
formation of benefit to the work of the Congress. This
does not mean that Congress is to "task" the community or
'intends '.to "micromanage" it. The facts and analyses pro-
duced by the intelligence community are clearly helpful
to Congress in carrying out.its duties in foreign policy
and national security matters. -
Congressional Access to Information
The oversight, committees must be kept "fully and
currently informed'.' of the activities of 'the intelligence
community,.in the manner of the several decades of prece-
t_.:: =- dent in the Atomic-Energy Act. The Executive branch would
-- `- be required to keep'Congress posted on major policy issues
and undertakings of the community. to a degree satisfactory
to both and on the basis of mutual discussions of what
kinds of information are required. It is not contemplated
that a truck has to arrive at the Capitol each day. Ob-
viously, the oversight committers do not"neeh or want:,..;
minute detail of community affairs in most matters. But
clearly,..in some areas such as covert action;and on other
edbc oc.casions,..full and minute detail wohid be required.
The present Executive Order and Senate Resolution 400 pro-
visions have worked well to everyone's satisfaction. That
is why it is contained in S.2525 in Sec. 152(a).
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Assassinations
There should be a prohibition of assassinations
which could apply to all U.S. government personnel.
Anthony A.. Lapham, Esquire
November 22, 1978
Page Six
.approval--of these special activities by the National
Security Council are desirable. (See draft, Sec. 271.).
A statutory.standard for special clandestine activi-
ties is required: We proposed the Vance standard in
S.2525. In addition, regular accountable procedures for
Special Activities
- Seca 272.;)
for this area of intelligence activity. (See draft, -
practice now and all agree regular review is important
r
tivities'should be set forth in statute. This is regular-
can have the same "flak potential" as special. activities,
rocedures for approval similar to those for special ac-
Because sensitive intelligence collection projects
Sensitive Intelligence Collection Projects
Restrictions.-on the Use of certain rroressions
by the Intelligence Agencies
Peace Corps; and government scholarships, such as the
Fulbright program. The Committee's approach contained in
5.2525 was based on the special concern expressed in the.
rnnetir?t-inn for freedom of expression and religion, and
use of religious organizations; academik institutions; the
The working group draft deletes the restrictions on
the use of United States media employees or organizations;
.paid or contractual relationships but did not interfere
with the individuals who chose to engage-in voluntary re- ~.-
the need to protect the independence and integrity or our
academic institutions The approach in S.2525 focused on
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Anthony A. Lapham, Esquire
November 22, 1978
Page Seven
Counterintelligence Investigations
and guidelines set forth. .(See draft, Sec. 212.) -
a United .States person. Exceptions from the criminal
standard need to be-spelled out and careful procedures
It is theCommittee's..view that a criminal nexus is
required to open a counterintelligence investigation of
The view of the Committee as expressed in S.2525 is
that there should be a presumption that a United States
?person has a right to expect that the government will not
investigate him unless there is reasonable cause. Legiti-
mate political activity, of course, cannot in itself be a
reasonable cause.. The presumption of the draft is that
there is no:-countervailing concern to the interest an in-
telligence agency has in gathering information. For.'
example, the working group draft has no restriction on-
what can be _collected regarding United States businesses
or' commercial organizations. Under the terms of the:.
working group draft, almost. any multinational corporation
maybe targeted both within and outside the United States
.,Since almost. any._relations-it has with a foreign power
'would constitute foreign intelligence:` Thus, the intelli-
gence agencies could obtain, and maintain extensive.. files
on United'States persons working for. such corporations
h
even t
ough they are innocent or a
draft, Sec. 213.)
Potential Source Investigations
Potential source investigations should be more limited
in scope than counterintelligence investigations. The
privacy of a, potential source should be protected to the
greatest extent possible. Investigations of this type
should probably be limited to publicly available informa-
tion, national agency checks, and interviews.f~ In addi- --
tion, the consent of any person investigated as-a potential
source should be-required unless the request would jeopardize
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Anthony A. Lapham, Esquire
November 22, 1978
Page Eight
the necessary activity for which the assistance is sought.
Strict time limits should be placed on the duration of,
potential-source investigations. (See draft, Sec. 215.)
Investigation of Present or Former Employees
.The investigation of an employee or former employee
of the intelligence community should have a higher standard
.than in the-working group draft.. There should be some evi-.:
dence or reasonable probability that the person. has or is
about to violate security regulations. .(See draft, Sec.
216.)
Catchall Provision for Investigations
The catchall: provision (Sec. 217) that would-permit
additional types of investigations, once a determination
of their necessity is made by the head. of the entity and
the Attorney.General, is far .too broad. COINTELPRO and
CHAOS, for example, could conceivably be authorized under
this provision.
--Durati,:Qn of Collection
There should be a regular review of collection under-
taken with certain techniques, perhaps annually. The
Attorn.-General or some group outside the collecting
agency would seem to be appropriate for conductig such
reviews. (See draft, Sec. 219.)
Retention of Data
Sec. 221 of the working group' draf t.should be more.
carefully considered. We both agree that we should avoid
the compilation of dossiers or the collection of unneces-
sary information. What, for example, are "administrative
purposes"? Information that is acquired simply because
it was collection in the course of an authorized collec-
tion activity should not be retained or disseminated.
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November 2.2, 1978
Anthony A. Lapham, Esquire
of retention of data'could result in serious intrusions
on privacy, particularly by some of the means available
to NSA and other technical-collection agencies. _
There has to be some reasonable standard of relevancy to
agreed upon intelligence missions. Otherwise, this kind
Certain Intrusive Techniques
required.
.consider more carefully what intelligence collection tech-
niques are intrusive. Clearly there are a number of tech-
niques that do not reach the Fourth. Amendment's definition
of.a search-or seizure, yet which pose considerable threats
to the privacy of United. States persons. These include,
for example, the examination of tax records, physical sur-
veillance for purposes other than identification, and use
of mail covers. ,In these areas procedural protections are
Both the Committee and the Executive branch have to
Dissemination to a Foreign. Government
- _ should not be given to a foreign government-simply because
-it is iri''the "interests of the United States".----There
should be a requirement for protection of information re-
Catchall Provision on Dissemination
Section 222F of the working group draft would permit
reason such as possible involvement.in terrorist activities
(Sec. 222A_)
COINTELPRO programs.
could authorize some of the harmful activities used in the
to undertake any lawful dissemination on the basis of his
own determination. Conceivably a future administration ..
an entity head with the concurrence of the Attorney General
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Anthony A. Lapham, Esquire
November 22, 1_978
Page Ten
Collection of Public Information-
There should be some standard for the collection of
any information-on United States persons. Obviously we
all want to avoid the creation of dossiers, but it is
also obvious that some public information on United States
persons is necessary and useful for the functioning of
government.- (See draft, Sec. 211(d).)
Overseas Electronic Surveillance
Court orders should be required when a United States
agency either conducts or requests the surveillance. (See
draft, Secs. 225-229A.)-
Physical Searches"
For unconsented physical. entries a court order and a....
criminal standard seem appropriate. Procedures. based upon
the Foreign Intelligence Surveillance Act may. provide a
solution.... Distinctions would have to be made between kinds
of searches; break-ins are, of course, very different than
working with couriers. (See draft, Secs. 230-231B.)_.,__,
Participation-in United States Organizations
United.States organizations which are not themselves
agents of a foreign power. should be protected against in-
filtration by the intelligence agencies. Under the terms
of the working group draft (Sec. 245), agents of the-in-
telligence community can participate: in a "United States
organization "for the establishment, enhancement or
maintenance of cover" or "in order to recommend or assist
in the recruitment of employees, source of information
or sources of operational assistance." Some.additional
measure of protection for United States organizations
would seem to be necessary. Probably there should be no
restriction on such circumstances as attendance at public
meetings. The role of the FBI here should be reviewed.
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rage t Leven
November 22, 1978
Anthony A. tapham, Esquire
warranted.
sideration of conforming to the procedures of the War
Powers Act and the National Emergencies Act would seem
There need to be discussions on some aspects of the
Presidential waiver provision (Sec. 261). Both S.2525
and the working group draft address the expected circum-
stances when a waiver would be necessary. Further con-
Presidential Waiver
the protections afforded alien visitors and United States
persons are obviously necessary.
The rights of alien visitors in the United States
should be protected. Reasonable distinctions between
-rights of Aliens
Intelligence Activities in the United States
It.is clear that we should have further discussions
on the extent to which CIA activities in the United States
should'be permitted, and to what extent the FBI should be
s=-- engaged in collection of .-positive _ intelligence .
Definitions'
effect of diminishing protections afforded t6 United States..
it would seem. that we should have a common de inition for
agent if 'a foreign power. The working group raft, modi-
fies the definition of agent of a foreign power with the.
There are some definitional problems. For example,
persons. (Sec. 203(b)(2).)
 r'.?
`' "-Anthony A. Lapham, Esquire
November 22, 1978
Page Twelve
I appreciate the opportunity to comment.on the
working group draft. We fully understand that the draft
is preliminary, and by no means a final position. It
would be profitable for us, and perhaps to you and the
working group, if we could meet to discuss in detail the
issues and problems that should be resolved in Titles I
and II.
I want you to know that the Committee and the staff
appreciate the courtesies and. patience you and your.
colleagues have shown in working on this difficult and
common endeavor.
Sincerely,
WGM:mlh
William G. Miller
Staff Director
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%Uw
15 March 1979
Attachment
NOTE FOR: DCI
VIA: DDCI
FROM: Anthony A. Lapham
General Counsel
SUBJECT: Review and Approval of Sensitive
Foreign Intelligence Collection
Operations
The attached letter from Lee. Marks
to Fred Baron will give you an idea where
the State Department is coming from on
the issue of the role of the DCI and
the SCC in the review and approval of
sensitive foreign intelligence collection
operations.
cc: DDO
D/NFAC
DDS&T
AGC/DDO
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NOW OF STATE
CONFIDENTIAL
March 9, 1979
Frederick D. Baron, Esq.
Special Assistant to
the Attorney General
Room 5123
Department of Justice
Washington, D.C. 20530
Dear Fred,
We have read your January 31, 1979 draft
standards for sensitive collection operations and
Tony Lapham's March 6 reply. The Secretary has
not yet had an opportunity to focus on this issue,
but I thought it might be helpful to give you the
Department's reactions at the staff level.
We have the opposite concerns from Tony.
Without focusing on details, we concur generally
with the approach taken in your draft with respect
to SCC review of proposed operations, as summarized
by Tony in paragraphs 2(d)-(e), and with the provi-
sions for an annual review, as characterized by Tony
in paragraph 2(g). We disagree with your draft
guidelines insofar as they vest virtually total dis-
cretion in the DCI to determine what operations are
"sensitive" and must therefore be reported to the
SCC Chairman.
DCI Reporting to the SCC Chairman
The standards should contain criteria defining
when a proposed operation will be deemed "sensitive."
Only the DCI can determine whether a particular
operation meets the criteria, but once the judgment
is made that it does, the DCI should no longer have
discretion to decide that the operation is not
sensitive.
CONFIDENTIAL
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It seems to us wrong, for example, to permit
the DCI to decide that a proposed operation is not
"sensitive" even though it involves a foreign head
of state as a target, or an exception to applicable
regulations, or a significant question of legality
of propriety. (We have no fixed idea what the
-criteria should be, although the ones set forth in
Judge Bell's October 24, 1978 standards seem sensi-
ble to us.)
I'm puzzled by Tony's insistence that the SCC
have no role in reviewing and approving sensitive
operations except at the sufferance of the SCC
Chairman. Tony finds that "consistent" with the
letter and spirit of the executive order; we
respectfully disagree.
Tony urges on you a system in which the DCI
has total discretion to decide that an operation
is reportable to the SCC Chairman, and the SCC
Chairman, in turn, has total discretion to decide
whether the report should be shared with his colleagues
on the SCC. This is essentially the system that
prevailed for many years, and we do not believe
that it was the Carter Administration's purpose,
in promulgating E.O. 12036, to perpetuate it.
Our own view is that the principles set forth
by Judge Bell in his October 24, 1978 memorandum
made sense and should govern the drafting of the
standards. We prefer that framework to your January 31
draft.
I'm not sure how best to proceed at this point,
since the agencies involved seem to be far apart.
I assume this will need to go back to the SCC; the
question is whether it is worthwhile to convene
a meeting at the staff level first to see whether
the differences can be bridged.
Sjimcerely,
~~
Lee P. Marks
Deputy Legal Adviser
cc: Deanne Siemer, General Counsel, Department of Defense
Sam Hoskinson, NSC Staff
Anthony A. Lapham, General Counsel, CIA
CONFIDENTIAL
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6 March 1979
MEMORANDUM FOR: Frederick D. Baron -
Special Assistant to the Attorney General-
FROM: Anthony A. Lapham
General Counsel
SUBJECT: Review and Approval of Sensitive Foreign
Intelligence Collection Operations
1. Your memorandum of 31 January 1979 invited my
comments on an attached set of draft guidelines implementing
Sections 1-3.03 and 1-306 of Executive Order 12036, which
relate to the review and approval of sensitive foreign
intelligence collection operations.
2. The essential elements of the review and approval
process envisaged by the draft guidelines appear to be as
follows:
(a) Proposed operations deemed by the DCI to be
sensitive would be reported by the DCI to the Chairman
of the SCC.
(b) The DCI would have full discretion in deter-
mining which operations were sensitive so as to require
that they be reported. No particular operations or
types of operations would be singled to be reported as
a matter of course, but in exercising his discretion
the DCI would be directed to take into account certain
enumerated considerations of a general nature.
(c) The DCI reports to the Chairman could be
either oral or written, and could refer to proposed
operations by category, but the Chairman would be free
to require an elaboration of any report.
(d) Review by the SCC of proposed operations
reported by the DCI to the Chairman would be the rule,
subject only to exceptions personally authorized by the
President. In most if not all cases, apart from those
as to which the President might authorize special
handling, it would be the function of the SCC not just
to review proposed operations but to approve or disapprove
them as well.
All portions of this
document are unclassific
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(e) The independent approval or authority of the.
Chairman would be limited as follows: he could approve
"routine operations, pending an SCC quarterly review,"
and "in exigent circumstances" he could approve "other-
operations provided that.SCC members are promptly
notified and the operation is presented to the SCC for
approval as soon as possible."
(f) CIA would be required to maintain records
detailing the nature and scope of any operations
approved by the Chairman, and these records would be
available on request to any SCC member designated in
Section 1-303.
(g) The Chairman would report quarterly, both to
the President and to the SCC, and the SCC would conduct
an annual review both for the purpose of reevaluating
its prior decisions to approve or disapprove particular
operations and for the separate purpose of validating
the entire process by means of an inquiry about selected
operations not reported for approval by the DCI. The
annual review would be the subject of a report to the
NSC, as required by Section 1-306.
3. In some of its aspects, namely (a) through (c)
above, the draft guidelines parallel the proposal made by
the DCI and circulated for comment by the NSC staff in
October 1978. In its other aspects, however, having to do
with the role of the SCC in the review and approval process,
the draft guidelines depart sharply from the DCI's proposal
and are objectionable. A copy of that proposal is attached.
4. Under the DCI's approach, proposed operations
deemed to be sensitive would be reported to the Chairman,
and it would then be the Chairmen's responsibility to deter-
mine whether such operations "should be reviewed by the SCC,
and whether such operations should be subject to approval by
the SCC." These arrangements, which in my opinion are
perfectly consistent with the letter and spirit of the
Executive Order, would leave the role of the SCC to be
defined on a case-by-case basis by the Chairman. He would
be free in any given case not?to involve the SCC at all, or
to involve it only to the extent of presenting the case for
review and comment, or to involve it to the fuller extent
of seeking its approval, presumably with the expectation
that the operation in question would be abandoned or modi-
fied if such approval was not forthcoming. It would like-
wise be the prerogative of the Chairman to determine the
scope of the annual review.
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g. ~
5. Your draft guidelines would establish a'far broader
and more dominant role for the SCC. It would assume a
mandatory review function and become the final approval
authority as to all but the handful of operations that might
warrant the personal attention and intervention of the
President.
6. Obviously there are fundamental differences between
the DCI's proposal of last October and your draft, guide-
lines. The essential question is whether, as contemplated by
the DCI's proposal, the SCC should serve in a standby capacity,
to be consulted by the Chairman as that official might think
appropriate, or whether it is to have the full line responsi-
bilities that would be assigned to it under your draft guide-
lines.
7. While in my view either approach is legally permissible,
the DCI's concept is more faithful to the intent.of the relevant
provisions of the Executive Order. As you know, those provisions
were revised shortly before their adoption, at the DCI's
urging and with the concurrence of the President, for the
express purpose of limiting the role of the SCC in the review
and approval of sensitive foreign intelligence collection
operations. The pertinent background is summarized in John
Harmon's memorandum for the Attorney General dated 27 June
1978. As I see it, your draft guidelines ignore that background
and, by requiring SCC review and approval as the rule, would
create the very situation that it was intended to avoid.
8. I have read the comments on your draft guidelines
contained in Deanne Siemer's letter to you dated 16 February, STAT
and I agree with those comments so far as they are consistent
with this memorandum.
Anthony A. Lapham
cc: Sam Hoskinson, NSC Staff
Deanne Siemer, General Counsel
Department of Defense
Lee Larks, Office of Legal Adviser
Department of State
OGC:AAL:sin
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1
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1
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S
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1
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1
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Sensitive Foreig1 Intell
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Operations
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Chrono
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GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE
WASHINGTON, D. C. 20301
February 16, 1979
Mr. Frederick Baron
Special Assistant to the
Attorney General
Department of Justice
Room 5123
Washington, D.C. 20530
Dear Frederick:
This is in response to your request for review of
and comment on the draft standards and procedures for
sensitive collection operations that were attached to
your memorandum dated January 31, 1979.
It is our view that paragraph I(A) should be recast
to make it the responsibility of each SCC member to
review intelligence collection operations under his pur-
view and to report to the DCI the details of those opera-
tions that are candidates for treatment as sensitive
collection operations. The DCI would then make the final
review so that the same-standards would be applied across
the board.
Paragraph II provides that the Chairman may approve
routine operations. It is unclear what is contemplated
here because, if operations are "routine" in the normal
sense of that word, they would not be reported to the SCC
at all. It appears that the authority of the Chairman to
approve "sensitive" operations on the basis of exigent
circumstances is all that is required.
Paragraph III(B) requires quarterly reporting. This
would be in addition to the annual SCC review required by
the Executive Order. We think these are unnecessary report-
ing requirements and we urge that we not go beyond the
requirements of the Order.
Sincerely,
Deanne C. Siemer
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OGC 79-01579
13 February 1979
MEMORANDUM FOR: Director of Central Intelligence
VIA: Deputy Director of Central Intelligence
FROM: - Anthony A. Lapham
General Counsel-
9ta~*tr~''[m1+4a~eda~res~~v +e'~ Q
SUBJECT:
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2. Background: On 2 October 1978 you wrote a letter
to Brzezinski enclosing a set of proposed standards to
implement Sections 1-303 and 1-306 of Executive Order 12036,
which relate to the review and approval of sensitive foreign
intelligence collection operations.* Copies of your letter,
and its enclosure are attached at Tab A.
*Section 1-303 provides:
Under standards established by the President,
proposals for sensitive foreign intelligence collection
operations shall be reported to the Chairman'by the _
Director of Central Intelligence for appropriate review
and approval. When meeting for the purpose of review-
ing proposals for sensitive foreign intelligence col-
lection operations, the members of the SCC shall include
the Secretary of State, the Secretary of Defense, the
Attorney'General, the Assistant to the President for
National Security Affairs, the Director of Central
Intelligence, and such other members designated by the
Chairman to ensure proper consideration of these
operations.
Section 1-306 provides in part that it will be the duty
of the SCC to:- "Conduct-an annual review of ongoing special
activities and sensitive national foreign intelligence collection
operations and report thereon to the NSC."
C ONr1IIEHT1A
L Declassified when
separate from attachments.
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3. The NSC Staff made only one minor change in the
proposed standards, substituting the President for the NSC."
as the recipient of any SCC reports based on its annual
reviews, and then proceeded to circulate the standards to
SCC principals for. comment. DOD and the JCS commented
favorably. The Attorney General, however, responded by
proposing an alternative set of standards, which attracted -,.
support from the State Department. The differences between
your proposal and the Attorney General's counterproposal
were unresolved as of 8 November, when the SCC met to consider
a counterintelligence agenda, including draft standards
governing its' counterintelligence functions under the Execu-
tive Order, at which time the Attorney General was instructed
to redraft both the counterintelligence standards and the
sensitive foreign intelligence collection standards. A
copy of your memorandum to me regarding that meeting is
attached at Tab B.
4. A new DOJ draft of the sensitive foreign intelligence
collection standards arrived as an attachment to a memorandum
to me from Frederick Baron dated 31 January. Copies of this
draft and the covering memorandum are attached at Tab C. On
some of the points that were previously in dispute, DOJ has
yielded. So, for example, while the earlier DOJ draft would
have required that certain specified types of operations be
reported to the SCC as a matter of course, the new draft
accepts the idea that the DCI is to have full discretion,
taking into account various general considerations, in
deciding what operations are sensitive and are therefore to
be reported. Putting aside other less significant problems,
the central issues that now remain have to do with the
extent and nature of the role to be performed by the SCC
with respect to those proposed operations that are reported.
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