ISSUES PAPER FOR THE SPECIAL COORDINATION COMMITTEE CONCERNING POTENTIAL SOURCES OF ASSISTANCE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP87B01034R000100080030-3
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 7
• Document Creation Date: December 19, 2016
• Document Release Date: December 21, 2006
• Sequence Number: 30
• Publication Date: April 12, 1979
• Content Type: MF

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12 April 1979
MEMORANDUM FOR: David Aaron
Special Coordination Committee
The White House
FROM Anthony A. Lapham
.-General Counsel
SUBJECT Issues Paper for the Special Coordination
Committee Concerning Potential Sources
of Assistance _
The 28 March memorandum from the Assistant to the.
President for National Security Affairs assigned to CIA
responsibility for, among other things, the preparation and
coordination of an SCC Issues Paper regarding the collection
of information concerning U.S.'persons who are considered to
be potential sources of intelligence information or assistance.
The final version of such a paper, having been coordinated
with DOD, DOJ, State, Treasury, OMB, FBI, NSA, the NSC, and
the Office of the, Vice President, is enclosed for your use
in arranging an SCC meeting on this subject.
STAT
Enclosure
OGC:ARC:am
cc: Working Group Members
Distribution:
Orig - Addressee
Anthony A. Lapham
1 - OGC Subj;, Legislation-Intelligence Charters ARC holding
1 - Chrono.
1 - JED
1 - ARC Signer
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COLLECTION OF INFORMATION CONCEPNING POTENTIAL SOURCES
INTELLIGENCE CHARTER ISSUE PAPER FOR THE
SPECIAL COORDINATION COMMITTEE
I. Background:- It is the purpose of this paper to present
for SCC consideration and resolution issues relating to the
collection of information concerning United States persons
without their consent when such persons are determined by
United States intelligence entities to be potential sources
of information or operational assistance. Since there
appears to be no serious objection to collection of information
concerning United States persons who have agreed to provide
assistance and have consented to such collection or who are
being considered for employment or as contractors with an
intelligence entity, even utilizing false credentials to
conceal the intelligence interest because of the nature of
the activity for which assistance is sought, these two types
The issues presented relate to whether charter legislation
should:
a. Authorize collection of information concerning
United States persons who are identified as potential
sources of information or assistance without their
consent;
b. Limit the length of time during which such
collection without consent may be conducted; and,
c. Limit the means by which such collection
without consent may be conducted.
II. Current Practice: United States persons who may be in
a position to provide information or assistance to an
intelligence entity may come to its attention in a variety
of ways including chance encounters, recommendati-bns from
existing sources, official inquiries and positive efforts to
seek out persons with particular types of contact,-or capabilities.
Executive Order 12036 provides that information that is
not available publicly may be collected without the consent
of the United States person concerned when that person is
reasonably believed to be a potential source or contact, but
only for the purpose of determining suitability or credibility.
Such collection activities are required to be conducted -
subject to the order's restrictions on the use of various
collection techniques and pursuant to procedures approved by
the Attorney General. The required procedures, while under
development,, have not yet been finalized or implemented.
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When a United States person who may be-a useful source
or contact is identified, preliminary inquiries may be made
without the knowledge or consent of that person in order to
determine whether to attempt to solicit the person's assistance.
During this preliminary stage, a review of publicly available
information may be conducted, requests may be made for
reviews of the records of the intelligence entity and other
entities, and inquiries may be made to establish or confirm
identity or suitability.. To make these potential sources
aware of the intelligence interest and objective before'
assessing their veracity, reliability, loyalty, and receptiveness
is to risk premature disclosure and frustration of the
objective, undue exposure of the identities of the intelligence
employees involved, or the subsequent failure ofthe activity
itself due to difficulties with the source that could have
been anticipated as a result of a preliminary inquiry. -
When it appears that tbe_United States person has the
requisite contacts or capabilities, and maybe a suitable
prospect (a benchmark that may take varying lengths of time.
to reach depending upon the circumstances of each case) the
person's assistance is solicited and the intelligence, or,
in limited circumstances abroad', the United States Government,
interest is revealed. If the person agrees to cooperate,
consent is obtained for further inquiries. .
III. Issue - Whether Consent Should Be Required: Under
Executive Order 12036, nonpublic information may be collected
concerning United States persons who are reasonably believed
to be potential sources or contacts without their consent.
The order does not require. that such collection be approved
at any particular level of authority within the collecting
entity. However, such collection is limited under the order
by the restrictions on the use of various techniques and by
the requirement that collection be limited to that information
necessary to determine suitability or credibility and be .
conducted pursuant to procedures approved by the Attorney
General.
The Senate bill, S. 2525, would have authorized col-
lection of information concerning a.United States person
reasonably believed to be a potential source of information
or operational'assistance'to the extent necessary to determine
suitability or credibility.. The consent of-the subject
would be required except where a designated official of the
intelligence' entity collecting the information has determined
there to be a serious intention to utilize the United States
person as a source and that requesting consent would.jeopardize
the activity for which the assistance of the United States
person is to be sought. The SSCI has continued to maintain
this position in its most recent (November 1978) statement
of the intended conduct of charter legislation. -
. I
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A general requirement, with narrow exceptions, to
obtain the consent of any United States person believed to
be a potential source or contact prior to collecting non-
public information 'as to that person's suitability would be
intended, obviously, to limit the numbers and circumstances
of unconsented collection activities of this type. Rather
than proceeding without consent in all cases, a careful
determination would be required in- each case as to whether
to obtain the subject's consent and only a select number,'of
such collection activities likely would be conducted without
such consent.
In opposition it may be argued that such a requirement
is needless since the collection would be self-limiting
(i.e., information necessary to determine "suitability" or-
"credibility") and the most threatening collection techniques
(i.e., electronic surveillance-and monitoring, physical--
searches and mail surveillance) would not be available for.
this purpose. Further, a requirement that consent be
obtained except where security concerns militate against
requesting it,'-may be ineffectual and the- exception might
quickly become the rule since preliminary collection of one
degree or another is necessary in-virtually all cases to
determine whether the assistance and consent of the person
should be requested.
The alternatives appear to include:
Option A - Require consent in all cases prior to
any collection of nonpublic information to determine
suitability or credibility of a U.S. person as a
potential source or contact;
Option B - Require such consent as a general
rule coupled with authority for officials at appropriate
levels of the entity to invoke exceptions in cases
where there is some concern as to the subject-'-s suitability
or credibility;.
Option C - Do not require consent but leave it
to limited authorizing language and the restricted
means by which it may be accomplished to regulate
unconsented collection;.
Option D.- Do not require consent in statute but-
.leave it to entity procedures approved by the Attorney
General to limit the nature and extent of such collection.
IV. Issue - Limitations on the Time Allowed for Unconsented
Collection: If it is determined that some degree of collection
should be authorized without the consent of the United States
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person who is the potential source or contact, another issue
is raised concerning whether a time limit should be imposed
on such collection activities.
Executive Order 12036. includes no such time limit.
The Senate bill would have limited all collection for
such purposes, apparently whether consented or unconsented,-
to 90 days without exception and without provision for
renewal-or extension. _The most recent SSCI position paper
advocates "strict time limits."
A time limit on collection of this type would be
intended to prevent extended gathering and accumulation of
information concerning-any unwitting United States person
merely on the basis of an intention to utilize the person as
a source or contact'at some future date. Requiring that all
such collection cease after 90 days would require, that only-
a limited; specific. inquiry be-conducted,and would discourage
overbroad collection activities.
The difficulty with such a-time limit especially where
no provision is allowed for extention or exception; i.s that
it presumes a precise and focused dedication of resources
and fails to recognize the realities or practicalities of
this type of collection. Merely requesting, receiving and
assimilating information in the records of selected federal
agencies may frequently require over 30 days, especially
when the United States person has had extensive foreign
contacts. Such a time limit would effectively bar such
collection if it were to include in the 90-day limit the
collection that occurs after the consent of the subject is
obtained since such background investigations often require
a minimum of 180 days...
The alternatives appear to include:
Option A - Impose a specific time limit, such
as 90 or 180 days,' on unconsented collection of non-
public information to determine the suitability or
credibility of a U.S. person as a potential source or
contact;
? Option B - Impose such a limit on unconsented
collection of this type but allow officials at appropriate
levels of the entity to invoke exceptions or allow
extensions and renewals;
Option C - Impose no time limit on such collection
but leave it to the finiteness of available resources,
the non-availability of the most intrusive techniques,
and the language of the authorizing provision to
narrow the type and amount of information that may be
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collected and thus the period of time during which
collection will continue; or,
Option D - Include no time limit in statute,
leaving it to procedures approved by the Attorney
General to regulate the duration of such collection.
V. issue - Restrictions on the Means By Which Unconsented
Collection May Be Accomplished: A determination that
unconsented collection of nonpublic information to determine
the suitability or credibility of United States persons as
potential sources or contacts should be authorized also -
results in an issue concerning whether there should be
statutory limits on the means by which such collection may
be conducted. _. '
Executive order 12036 does not limit collection of - -
public information and does not include specific limitations
on techniques for collection of nonpublic information that
concerns a United States'' person's suitability or credibility
as a potential- source or contact.' However, the conditions
imposed by that Order on the use of electronic surveillance
and monitoring, physical search and mail opening,. and mail
surveillance, effectively prohibit the utilization of any of.-
those techniques (except that physical surveillance may be
used by the FBI "in the course of a lawful investigation")
to collect information concerning an unconsenting United
States person because that person is considered to be a
potential source or contact.
The Senate bill would have gone further and limited
collection for this purpose to gathering of publicly available
information, requests for existing information from the
records of federal agencies, and "interviews" (not defined
but apparently understood to mean individual. inquiries
without disclosure of the 'intelligence or United States
Government affiliation of the person initiating the inquiry).
It is argued in support'of such restrictions that this
type of collection should be strictly limited because the
United States persons involved may not only have violated no
law, but may not even be in possession.of information of
foreign intelligence or counterintelligence value - Yet they
may be subjected to scrutiny by the government because of
mere circumstance or acquaintance. On the other hand, such
limitations on techniques are opposed as impractical and
unnecessary since there will be sufficient limitations on
the type of information to be collected, and the use of the. most intrusive techniques will be effectively prohibited for
this purpose. Accordingly, the practical difficulties:
raised by arbitrarily limiting the remaining means of.
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collection, and the definitional problems (e.g., what is
"publicly available," what are "interviews") outweigh the
benefit to be gained.
The alternatives appear to include:
Option A - Impose no additional limitations on use
of-particular techniques to collect nonpublic information
concerning -the suitability or credibility of United.'
States persons who are potential sources or contacts
without their consent;
Option B - Impose no additional limitations on
such collection but note that electronic surveillance
or monitoring,* physical search and mail opening, and
mail surveillance may not be used for this purpose;
Option Cy'- Limit collection for this purpose to
public information, "national agency checks," and
"interviews" as in-S. 2525;
Option D - Limit collection for this purpose by
specific reference to all or some of the additional
techniques available, such as acquiring "public" and
"nonpublic" information, pretextual and third-party
interviews, physical surveillance, incidental collection,
inquiries to existing or newly-developed sources, and
national agency checks; or,
Option E.- Include no limitations on techniques in
statute'but leave it to procedures approved by the
Attorney General and restrictions on intrusive techniques
to regulate these collection activities.
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