INTELLIGENCE CHARTER LEGISLATION PRINCIPLES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86-00101R000100020029-1
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 8
• Document Creation Date: December 14, 2016
• Document Release Date: September 3, 2002
• Sequence Number: 29
• Publication Date: March 2, 1979
• Content Type: PAPER

STAT
Approve or e T - -
SUBJECT: (Optional)
FROM:
EXTENSION
NO.
Legislative Counsel
6D15 HQ
DATE
TO: (Officer designation, room number, and
DATE
building)
OFFICER'S
COMMENTS (Number each comment to show from whom
RECEIVED
FORWARDED
INITIALS
to whom. Draw a line across column after each comment.)
.
1 DDA
Attn:
Attached is a copy of the
7D18 H
charter legislation principles
2.
paper which we coordinated earlier
this week. The paper was submitted
to the Director.
3.
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4.
Assistant Legislative Counsel
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3-62 610 USEDITIEOVNE PR E a ea E1?'
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USE ONLY
UNCLASSIFIED INTERNAL CONFIDENTIAL
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INTELLIGENCE CHARTER LEGISLATION PRINCIPLES
1. Overall Framework
The National Security Act of 1947, as amended, has served for over
thirty years as the Government's charter for intelligence activities,
responsibilities and needs. The underlying premise on which the
National Security Act was based and continues to operate is that
the Government must have the ability to collect and provide essential
intelligence to policy makers and to conduct intelligence activities
pursuant to national security needs. The current charter
recognizes that it is essential to have and maintain an independent
intelligence collection and analytic capability. The position and duties
of the Director of Central Intelligence, and the centralized and independent
Central Intelligence Agency--under the National Security Council--were
established to meet this need. The proposed intelligence charter of
1978, introduced in the Senate on 9 February 1978 as S. 2525, appears
directed largely at ensuring oversight. and accountability and at placing
restrictions on foreign intelligence activities. Even with this general
thrust, however, it is important that the charter retain at its core
the independent intelligence collection and analytic capability.
W .....y.__~.~._ The detail included in S. 2525 is of concern. Problems arise,
for example, when efforts are made to legislate overly detailed grants
of positive authority, or to mandate restrictions that by reasonable
interpretation might preclude necessary and appropriate intelligence
activities. Attention should be directed to consolidating all the
restrictions in on lace inn'"fhe-'charter and to phrasing these pro-
visions as clear directives.
Excessive detail in legislation clogs the machinery of Government
processes and tends to bring about results not intended by:
--heightening the probability that a particular activity
not proscribed either by the letter or spirit of the law will
be found or believed to be unauthorized merely for want of a
specific statutory authority to conduct it, or because of the
complexity or vagueness of a related restriction;
--leading to an undesirably cautious mentality which would
tend to freeze all action, regardless of how desirable or proper,
that does not fit precisely within the dead center of a grant
of authority, or is not clearly restrained by restrictions, or
because of the magnitude of required attendant procedures;
and
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--generating innumerable technical, inadvertant violations of
both administrative and substantive provisions of the charter which
in themselves may lead to additional violations if the numerous
procedural and reporting requirements are not met precisely.
The Government's intelligence capability, contingent in large part as it
is on anticipating events largely beyond the control of the United States,
must remain sufficiently flexible to respond to unforeseen or fast-breaking
situations and challenges abroad. Our mandate-- to gather and provide
important intelligence to policy makers and to carry out intelligence activities
at their direction- -cannot be carried out with any degree of effective-
ness if every act must be subjected to detailed examination concerning
whether it falls within specific parameters, and to detailed require-
ments for prior and subsequent reporting and justification.
One overriding principle that must be borne in mind is that the
charter must serve as a reasonable and not overly burdensome guide
for intelligence officers and employees; the mandate must be workable.
There should be clear general authorities an responsibilities -E-swElF
.as clear and reasonable limitations. Although S. 2525 represents
a vast improvement over the earlier drafts, in many instances its
provisions still will cause serious practical problems (e. g.,
determining what activities constitute "sensitive intelligence
collection projects" and complying with procedures for findings and
reporting on such projects and on special activities; ambiguities in
some of the restriction provisions; and the criteria for and limits
on collection of information on U. S. persons and the utilization of
U. S. persons for intelligence activities).
Moreover, efforts to require in legislation that consideration of
certain activities must be of a certain type or quality or that numerous
specified factors must be taken into account before implementing an
activity raise problems of interpretability and tend to be unmanageable
in practice. P or example, a statutory provision requiring--as does
subsection 114(f)--that certain factors be "carefully considered" or
"fully expressed" before carrying out an authorized activity could,
without stretching the language unreasonably, raise subjective
arguments that the required conditions precedent were not met, despite
the fact that the activity itself was authorized.
2. Executive Order 12036
Insofar as substantive issues are addressed in both the Executive
Order and in the charter, the treatment of such issues should not
be in conflict. This guideline would be particularly applicable, for
example, in specifying the authorities and responsibilities of the Director
and of the Central Intelligence Agency, and in providing the mechanism
whereby special activities and sensitive collection projects or operations
are reviewed, approved and implemented.
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3. Broad Responsibilities
The Director of Central Intelligence--the Director of National
Intelligence under S. 2525--should be clearly identified as
the principle intelligence officer of the Government. The charter should
provide among its purposes that necessary intelligence shall
be collected and made available to policy makers in the Executive
Branch. While reference to the intelligence "needs" of the Legislative
Branch would not be inappropriate, such a "responsibility" should
not be implicitly co-equal with the Director's obligation to the
Executive Branch (Title I is somewhat ambiguous on this point).
The statute should specify that the Director shall head the CIA.
Subsection 114(d) provides that the Director "shall act as the Director"
of the CIA. Section 117, however, requires a formal Presidential
"transfer" of any of the DNI's duties pertaining to heading the CIA
to the Deputy DNI or an Assistant DNI. This mechanism creates
ambiguity as to the authority of the DNI to delegate any of his
authorities to the Deputy or an Assistant. Moreover, in practice it may
prove difficult to distinguish those duties and authorities of the Director
that "pertain to" his role as head of the Agency and those that do not.
The authorities and responsibilities relating to all aspects of the
collection, production and dissemination of intelligence should run
to the Director of National Intelligence. Title I accomplishes this in
large part.
Although efforts to categorize intelligence as "national, " "tactical"
or "departmental" tend to be artificial and temporal, it is necessary
in the charter to address these distinctions to the extent necessary to
provide the Director authority to review and have access to all foreign
intelligence. The definitions should be carefully drawn so as to pre-
serve departmental prerogatives while ensuring that the Director main-
tains the necessary authorities. It would seem that this could most
clearly be accomplished by including, as does S. . 2525, definitions
for these terms, rather than spelling out the distinctions in each
instance in the operative provisions elsewhere in the Act.
The Agency should have responsibility for the conduct and coordina-
tion of counterintelligence activities abroad. It is also important that
the Director's coordination authorities run clearly to all intelligence
liaison activities and to all clandestine collection of intelligence abroad
(see also paragraph 11, below). The Director should be responsible
for ensuring proper implementation of special activities. Collection
of foreign intelligence within the United States from public or voluntary
sources should also be specifically allowed. However, contrary to
3
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the provision in paragraph 413(h)(1) that all Agency activities, including
non-clandestine collection, within the United States must be conduced in
coordination with the FBI and pursuant to Attorney General/DNI pro-
cedures, Agency activities in this country should be authorized as
in sections 1-801 and 1-805 of the Executive Order, as presently
agreed to between the Agency and the FBI (limiting coordination
to clandestine collection).
The duties and responsibilities of the Director of National Intelligence
should be cast as clear and broad grants of positive authority. The
authorities and responsibilities of the CIA also should be drawn as
positive grants, and would include many, but not all, of the authorities
diid responsibilities assigned to the Director. Titles I and IV are
cast in.this manner, although there are some specific problem areas.
4. CIA Responsibilities
The Agency should have its own statutory identity and mission.
There ore,c~espite the a ct that the Di rector of National Intelligence
would head the Agency and would be "assigned" enumerated authorities,
the statute should include a compilation of Agency authorities and
responsibilities. These would be in addition to the administrative
authorities as embodied in the CIA Act of 1949, as amended. S. 2525
is deficient with regard to necessary A enc administrative authorities.
77ce -again-, ._
Executive Wider 106msi.ould provide the guide for the
necessary authorities and responsibilities of the Agency. There would
be no need to provide separately for an office or a particular individual
to head the.-Agency, but the Director must have clear authority to dele-
gate his authorities in order to provide for the appropriate manage-
ment of the Agency (see comments on this particular point in paragraph
3, above).
The Agency's authority to conduct clandestine signals intelligence
operations in support of clandestine activities should not be subject
to coordination or review outside the Agency.
5. Deputies to the DNI
The statute should provide the necessary authority to allow the
Director to appoint either a specified number, or up to a, certain
number of subordinate officers to assist him and to whom he may
delegate his authorites. Title I of the Senate bill provides for a
Deputy Director of National Intelligence and grants the President
authority to appoint up to five "Assistant Directors, " without further
specification of duties or areas of responsibility. This scheme seems
appropriate, although providing for such a relatively large number
of political positions--up to eight (DNI, DDNI, five ADNI's and
the General Counsel)-- raises concerns over "politicization" of
the intelligence apparatus.
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6. Budget and Fiscal Responsibilities
The Director's responsibility for developing, coordinating and
approving the intelligence budget should be commensurate with that
contained in Presidential Directive/NSC-17 and as reflected in
Executive Order 12036. The charter should specifically grant to the
DNI full and exclusive authority for approval of the National Foreign
Intelligence Program budget--which Title I does provide--and
stipulate that the DNI should provide guidance for program and
budget development to program managers and heads of component
activities involved in the NFIP.
It is essential that the charter provide for, and that the Director
be authorized to utilize, the CIA Contingency Reserve in order to
meet unforeseen Agency expenses subject, of course, to congressional
and Executive Branch guidelines. Subsection 425(c) provides for the
"contingency reserve fund. "
The unique mission and function of the Central Intelligence Agency
necessarily means that the Agency will and must conduct certain
activities which other agencies and departments would be pro-
hibited from conducting. Those provisions in the charter legislation,
particularly as regards Title IV, must be studied extremely carefully
to ensure that the Agency retains the flexibility, under congressional
oversight, to conduct these necessary unique activities.
The Director also must retain the authority to utilize "unvouchered
funds" in the interest of national security. Subsection 122(b) provides
this authority. Care must be taken, however, to ensure that the
sensitive intelligence in this extremely importan` category of informa-
tion is protected, particularly as regards external review. For example,
the scope of the authority granted the Director to exempt certain acti-
vities or expenditures from GAO review (subsectioion 123(e)) should
be more carefully addressed. As regards GAO generally, review
of Agency and/or DNI activities should be limited to financial (as
opposed to "program management") audit and review, and should
be conducted only through the intelligence oversight committees.
The Senate bill provides for program management audit and review,
and it does not go far enough in requiring that all GAO audits be
initiated and conducted through the oversight committees.
7. Special Activities and S nsitive Projects or Operations
The primary concerns in this matter should be to keep to an
absolute minimum the proliferation of sensitive information, to
avoid a cumbersome review and approval procedure, and to avoid
ambiguous or arbitrary characterizations of activities or operations.
Executive Order 12036 should be used as a guide in this regard. The
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procedures in that Order are much less cumbersome than those in
Title I, which also requires prior notification to the oversight committees
(with a "48-hour after" exemption). These provisions in Title I are
of concern also in that they require designation of categories of
"sensitive intelligence collection projects" and approval/ reporting
procedures similar to those for special activities.
Probably the most difficult substantive areas to address in the
legislation are restrictions on intelligence activities, and the authorities
to collect and utilize information on U. S. persons and to utilize U. S.
persons for intelligence activities. Restrictions generally should track
those in Executive Order 12036, and the charter language should avoid
legislating ambiguous restrictions; subsection 135(a), for example,
would prohibit the "violent overthrow" of "democratic" governments.
Furthermore, care should be taken to ensure that all activities are
conducted in accordance with U. S. --as opposed to foreign- -laws;
certain provisions in S. 2525 are not quite clear as to this important
distinction. Restrictive provisions should not preclude appropriate
Collection, use and dissemination of information on U. S. persons
should be addressed as in Executive Order 12036. The charter should
avoid imposition of rigid time limitations such as those now in Title II
regarding collection of information on U. S. persons for certain purposes.
Moreover, the Director and the Agency must be granted much clearer
and broader authority than is provided in Titles I, II and IV for
necessary security investigations of applicants and employees
and their spouses, contractors and employees of contractors, and
detailees or assignees.
There must be a more realistic and workable delineation of
the role of the Attorney General and the Department of Justice in
matters of collecting, utilizing, maintaining and disseminating
information on U. S. persons and on foreign persons in the U. S.
Title II now provides an unnecessarily pervasive role for the
Attorney G ~neral in `here activities.
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9. Reporting to the Congress
The charter should, as S. 2525 essentially does, specify that the
DNI shall be the primary adviser to the Congress (though, as noted
above, not on a co-equal footing with the Executive), but should also
specifically require that such information be provided under procedures
which ensure protection of sources and methods.
The basic reporting responsibility should be as provided in
Executive Order 12036. To the extent the charter includes additional
requirements for reporting to the Congress on particular activities
or categories of activities (e.g., use of the Director's termination
authority or of the contingency fund), these should not be subject
to precise time limitations nor should the Director have to report
on a frequent basis. In short, the reporting requirements should not
be so oppressive as to undermine the flexibility otherwise authorized.
The Administration's position on sources and methods legislation
has yet to be resolved. At a minimum, however, the charter legislation
should continue the sources and methods authority provided in existing
law. Subsection 114(1) of Title I provides such authority, but contains
caveats subjecting it to "provisions of this Act" and to "declassification"
which appears to unduly limit the actual protection afforded this
essential information. Although the bill does provide, in subsection
431(c), criminal penalties for the unauthorized disclosure of names
of Agency employees under cover in certain instances, there is a
conspicuous absence of provisions protecting other types of intel-
ligence information from unauthorized disclosure.
11. Relationships with Foreign Government Services
The DNI should be granted the authority to establish policies regarding
liaison arrangements, for implementing such arrangements and for
coordinating these relationships between foreign services and entities
of the Community. It is not appropriate, as required by subsection
114(j), that this authority must be carried out "in consultation
with the Secretary of State. "
Subsection 114(j) also provides, in paragraph (3), that the DNI must
advise the oversight committees in advance of any proposed agreement
between any entity of the Community aka foreign service. Other
sections, such as 137(b) regarding reporting on activities undertaken
by foreign persons or services, relate also to this issue. Specifically
identifying the highly sensitive issue of liaison relationships in the
charter would seriously impair, and in certain instances nullify, the
Government's ability to deal with and benefit from such arrangements.
Moreover, addressing this issue in the legislation could lead to political
problems for certain foreign services in their countries, which would
have a direct negative impact on such services' ability to maintain
relationships with us.
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