LAW AND NATIONAL SECURITY INTELLIGENCE REPORT

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• Collection: General CIA Records
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• Document Creation Date: December 22, 2016
• Document Release Date: September 13, 2010
• Sequence Number: 6
• Publication Date: January 1, 1985
• Content Type: OPEN SOURCE

STAT
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/ bl AMERICAN BAR ASSOCIATION
A 0 40L,
STANDING COMMITTEE Law and National Security
INTELLIGENCE REPORT
John Norton Moore, Chairman January 1985
Law and National Security 1984:
The Year in Review
Over the past year Intelligence Report has carried
many important articles. To summarize them all in the
limited space available, however, would be to present
our readers with a meaningless shorthand report. We
have therefore exercised editorial discretion in selecting
for summarization those articles which dealt with mat-
ters having the greatest impact or potential impact on
the national security.
In each instance, in case the reader is interested, we
have indicated which issue of Intelligence Report the
summary is based on.
Congress Votes FOIA Relief for CIA
After a long drawn-out debate, Congress, during the
latter part of September 1984, approved H.R. 5164, a
bill which grants partial relief from FOIA to the CIA by
exempting "operational files" from automatic search
and review in response to FOIA requests. "Operational
files" are defined to cover most records of the Direc-
torate of Operations, many records of its Directorate of
Science and Technology, and some records of its Office
of Security. All other CIA records will continue to be
subject to FOIA requests.
The House vote was 369-36. Despite differences be-
tween the bills passed by the Senate and the House,
Senate leaders assured speedy final enactment, without
a conference, by accepting H.R. 5164 as passed by the
House. Senate passage was unanimous on September 28.
This legislation reflects long efforts by the ABA,
Congress, and concerned federal officials, both present
and former. In August 1983, the ABA, after hearings
and floor debate, went on record favoring significant
relief from FOIA for foreign intelligence agencies. John
Norton Moore, chairman of the Standing Committee on
Law and National Security, and committee member
John H. Shenefield, former associate attorney general,
for
both testified in support of the legislation in the Senate
hearings, and Mr. Shenefield again testified for the
ABA during House hearings.
The president signed H.R. 5164 into law on October
15.
Under the new law, judges will have more limited
jurisdiction. While the old rules of judicial review re-
main in effect for non-operational files, in the case of
operational files, judges will be limited to deciding
whether the files in question have been properly labeled.
The measure as passed had an unusual spectrum of
support, including the ABA, the CIA, and the ACLU.
The CIA obviously would have preferred a bill that
would have removed a few more of the FOIA knots.
The ACLU would have preferred a few more knots. But
in the end everyone appeared satisfied.
(Based on article in October Intelligence Report by
Robert L. Saloschin.)
Senate Vote Approaches
Ratification of Genocide Convention
The January breakfast meeting of the Standing Com-
mittee on Law and National Security was addressed by
Ambassador Max Kampelman, a member of the com-
mittee. Ambassador Kampelman, who spoke on his
return from negotiations with the Soviets at Madrid,
said that the ratification of the Genocide Convention
would enhance his bargaining position and that of other
U.S. diplomats, and, conversely, that failure to ratify it
would complicate their position.
On September 5, the State Department announced
that after "an extensive review" of the Genocide Con-
vention and "at the strong urging of the American Bar
Association and other interested groups, the president
concluded that it would be in the nation's best interest
for the United States to ratify the Genocide
Convention."
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1984: The Year in Review
Continued from page I
In a speech made less than 24 hours later, President
Reagan said that his administration would "vigorously
support, consistent with the United States Constitution,
the ratification of the Genocide Convention.... I want
you to know that we intend to use the convention in our
efforts to expand human freedom and fight human
rights abuses around the world."
Announcement of the president's decision was
greeted "with enthusiasm" by John C. Shepherd, the
president of the American Bar Association.
Events moved rapidly after the president's statement.
On September 12 hearings were held before the Senate
Committee on Foreign Relations. The treaty was ap-
proved by a 17-0 vote (with Senator Jesse Helms,
R-N.C., voting present).
On October 10, the full Senate devoted six hours to
the consideration of the Genocide Convention. Only a
few senators offered opposition, but because it was ob-
vious that they had the power to delay proceedings at a
very critical time, Senator Chris Dodd (D-Conn.), with
the co-sponsorship of Majority Leader Baker, offered
the following resolution:
Resolved, That the Senate hereby expresses its
support for the principles embodied in the Con-
vention on the Prevention and Punishment of the
Crime of Genocide, signed on behalf of the
United States on December 11, 1948 (Executive
Order, Eighty-first Congress, first session), and
declares its intention to act expeditiously thereon
in the first session of the 99th Congress.
On the following day, October 11-less than a day
before the Senate adjourned-the Dodd resolution was
approved 87-2. Senators Symms and East were the sole
dissenters.
As the result of the administration's backing and the
overwhelming bipartisan support for the measure, the
Genocide Convention is expected to be one of the first
things the 99th Congress will consider.
(Based on articles in September and October In-
telligence Reports by Craig H. Baab.)
Ell Salvador and Central America
On January 11, 1984, the Kissinger Commission sub-
mitted its long-awaited report on Central America.
Despite original conservative misgivings about the inclu-
sion of two prominent members of the Hispanic-
American community, Mayor Henry G. Cisneros of San
Antonio and Carlos F. Diaz-Alejandro, Professor of
Economics at Yale University, the Commission con-
cluded unanimously
that the security interests of the United States are
importantly engaged in Central America; that
these interests require a significantly larger pro-
gram of military assistance, as well as greatly ex-
panded support for economic growth and social
reform; that there must be an end to the massive
violation of human rights if security is to be
achieved in Central America; and that external
support for the insurgency must be neutralized
for the same purpose.
The report warned that-
No Marxist-Leninist "popular front" insur-
gency has ever turned democratic after its vic-
tory. Cuba and Nicaragua are striking examples.
Regimes created by the victory of Marxist-
Leninist guerrillas become totalitarian. That is
their purpose, their nature, their doctrine, and
their record.
Considering the strategic implications for the United
States, the Commission concluded:
The present level of U.S. military assistance to
El Salvador is far too low to enable the armed
forces of El Salvador to use these modern
methods of counter-insurgency effectively. [A 10
to 1 advantage is the generally required ratio of
government forces to insurgents. It's about 4 to 1
now.]
Warning against "the tendency in some quarters of
the Salvadoran military towards brutality," the Com-
mission said that this
magnifies Congressional and Executive pressures
for further cuts in aid, and reductions in aid
make more difficult the pursuit of an enlightened
counter-insurgency effort.
The Commission, which was widely viewed as a ma-
jor success for bipartisanship, called for periodic
reports to Congress on the state of human rights in El
Salvador.
On May 6, 1984, there took place the presidential run-
off election in El Salvador. By arrangement with the
government of El Salvador, the U.S. sent a 24-man
delegation to observe and report on the election. The
delegation, under the co-chairmanship of Senator John
H. Chafee (R-R.I.), Ambassador Max M. Kampelman,
and Representative G.V. (Sonny) Montgomery (D-
Miss.), included 10 members of Congress and 14 private
sector observers. (John Norton Moore, chairman of the
Standing Committee on Law and National Security, was
one of the private sector observers.)
The observer delegation concluded:
It is our consensus that this election was fair
and honest, and that it provided a clear and un-
deniable mandate to whichever candidate is
elected to begin to grapple with the manifold
problems that confront this country after five
years of turmoil and unrest....
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Commentary
The GCHQ Case (Continued)
By Walter Pforzheimer
The October 1984 issue of Intelligence Report car-
ried a commentary on the court case arising out of
British Prime Minister Thatcher's ban on unions in the
Government Communications Headquarters (GCHQ),
including all of its installations at home and abroad.
To recap briefly, Mrs. Thatcher's ban, which was an-
nounced in Parliament in January 1984, was based on
royal prerogative which had produced the Civil Service
Order in Council, 1982. Some nine civil service unions
took the ban to court, and, on July 16, Mr. Justice
Glidewell of the Queen's Bench Divisional Court up-
held the government on four of the five points before
him. On the fifth point, Mr. Justice Glidewell found
the ban to be invalid, because "Fairness and the rules
of national justice required that it should not finally be
made" without any consultation with GCHQ staff or
their unions. Glidewell added one interesting comment:
"I see no reason in logic or principle why the exercise
by a minister of a power conferred by an order in coun-
cil should not be subject to the same scrutiny and con-
trol by the courts as would be appropriate to the exer-
cise of the same power if it had been granted by statute."
The government appealed the adverse portions of the
Glidewell opinion to the Court of Appeal.
On August 6, 1984, the Court of Appeal issued its
opinion in the case, [Regina v. Secretary of State for the
Foreign and Commonwealth Office and Another, Ex
parte the Council of Civil Service Unions and Others],
unanimously upholding all of the government's conten-
tions. The opinion was based largely on the national
security interests involved in GCHQ, of which "the
ministers are the sole judges." The unions were author-
ized to appeal to the House of Lords, which rendered
its opinion on November 22, dismissing the appeal.
Five Law Lords each rendered an opinion, the most de-
tailed of which was by Lord Fraser of Tullybelton.
Lord Fraser began by noting that the union disrup-
tions at GCHQ had been taken "mainly in support of
national trade unions" when the latter were in dispute
with the government on general civil service matters,
and were not about local problems in GCHQ. As had
the courts below, Lord Fraser cited union literature
which had proclaimed the importance to the unions of
disruptions at GCHQ. Lord Fraser described one inci-
dent in which a subordinate of a former director of
GCHQ tried to explain to the general secretary of one
of the unions the serious consequences of disruptive
action on GCHQ work. The reply was: "Thank you.
You are telling me where I am hurting Mrs. Thatcher
the most." His Lordship went on to say that:
The decision on whether the requirements of
national security outweighed the duty of fairness
in any particular case was for the government
and not for the courts; the government alone had
access to the necessary information, and in any
event the judicial process was unsuitable for
reaching decisions on national security.
The four other Law Lords all concurred on voting to
dismiss the appeal on national security grounds.
However, all five Law Lords took up the question of
judicial review of orders in council which had been
raised by Mr. Justice Glidewell below and had also been
briefly touched on in the Court of Appeal. Their
language signalled difficulties ahead if national security
type information were not involved. Lord Fraser con-
sidered that "The most important and difficult ques-
tion raised by the appeal concerned the royal preroga-
tive." The government's position was that prerogative
powers were discretionary, and the way in which they
were exercised was not open to judicial review. Lord
Fraser conceded that the weight of "the authorities"
bore this out. Had the present case merely involved the
power to regulate civil service, "there was no obvious
reason why the mode of exercise of that power should
be immune from review by the courts," although this
would run against the great weight of authority. For
this reason, Lord Fraser preferred to leave that ques-
tion open until it arose in a case where decision on it
was required (i.e., where national security was not in-
volved).
On another element of the case, Lord Fraser con-
sidered whether the power conferred under the order in
council was subject to an implied obligation to act fair-
ly. He saw no doubt that, had the order in council been
made under the authority of a statute, judicial review
would have been applicable. His Lordship "was unable
to see why the words conferring the same powers should
be construed differently merely because their source was
an order in council made under the prerogative," pro-
vided that national security did not require otherwise.
Absent national security, Lord Fraser felt that the fail-
ure to consult the unions and staff in the present case
"would have been unfair."
Lord Scarman gave it as his belief "that the law re-
lating to judicial review had now reached the stage
where it could be said with confidence" that if the sub-
ject matter were one on which courts could rule, "the
exercise of the power was subject to review in accordance
with the principles developed in respect of the review of
the exercise of statutory power." He said that the old
limitations on review of the prerogative power had now
been "overwhelmed by the developing modern law of
judicial review." He felt that the major question in the
present case was its subject matter, which is why he
would dismiss the appeal on the sole ground of national
security.
In somewhat the same vein were the views of Lord
Diplock and Lord Roskill. The latter offered an inter-
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Commentary
Continued from page 3
esting touch in saying that failure to note the changing
times anent the sovereign's absolute power was like
"harking back to what Lord Atkin had once called, in
a different context, the clanking of medieval chains of
ghosts of the past."
Thus "national security" certainly saved this case,
nor does their Lordships' language indicate that their
views would change in cases where national security
would be overriding. But on the general principle of
judicial review of the royal prerogative and orders in
council, absent the national security issue, warning flags
seem to have been raised.
Book Review
Too Secret Too Long by Chapman Pincher, St. Mar-
tin's Press, New York, $19.95.
By the Editor
This meticulously researched book about the ups and
downs (mostly downs) of British intelligence is both
fascinating and quintessentially depressing. Authored
by Chapman Pincher, the dean of British investigative
reporters on defense and intelligence matters, it has two
major themes and a number of sub themes, all inter-
connected and exhaustively developed.
The first major theme the author advances is that
Sir Roger Hollis, the head of MI5 (the equivalent in
Britain of our FBI) from 1957 to 1965, was in fact a
Soviet spy and had been ever since entry into the service
in 1938. Pincher constructs his case with all the care that
Pythagoras must have lavished on the development of
the Pythagorean theorem. The only difficulty this
lawyer reviewer has with the author's chain of circum-
stantial evidence is that the square of the intelligence
hypotenuse doesn't quite add up to the square of the
other two sides of the right-angled triangle. Something
more is needed to "prove" the case such as access to
Soviet files (don't wait) or another defector who had
such access or a parliamentary debate on Hollis which
would probably be least probative.
Two other lawyers, Furnival Jones and Anthony
Simpkins, the director and deputy director general of
MI5 respectively, reviewed the evidence against Hollis
in 1972 and reached a similar "not proved" verdict, but
Pincher dismissed their judgment, as he probably would
mine, in these words:
It was, perhaps, no coincidence that both
Furnival Jones and Simpkins had been trained as
lawyers and in that context the words of R.H.S.
Crossman, the Labour politician who had been
involved with wartime, are apposite: "The
essence of security is to make up one's mind
without the evidence because if one waits for the
evidence it is too late. Lawyers, because of their
great regard for evidence, are not necessarily the
right people to form opinions about spies...."
On that score they may not be the right people
to run a security agency. [Bill Casey and Judge
Webster please note!]
It is extremely difficult to unearth a mole in an in-
telligence organization. It's like trying to determine if an
oak tree, sound to the eye on the outside, has termites
at the core. No forester I ever met can tell without cut-
ting down the tree and examining it from bark to the
center, and that's what Pincher would like to do with
M15 and M16.
Hollis, according to Pincher, was probably recruited
to the Soviet cause during his nine years in China as a
part-time journalist and employee of the British Amer-
ican Tobacco Company. He points the finger at com-
munists Hollis met during that sojourn such as the
notorious Agnes Smedley, Arthur Evert, Victor Sorge,
and a dedicated lady agent, code named Sonia, who
spread her sexual favors across the ideological spec-
trum. Sonia became, says Pincher, one of the most
successful female spies in history and was probably
posted to England to become Hollis's controller.
Oddly enough, I met Hollis in Shanghai in 1933, first
in the office of the B.A.T. and then at various parties
in that then gay Paris of the Far East. It was aptly
described by Pincher as having "a night life which gave
the city a scandalous reputation." It never occurred to
me at the age of 22 that Hollis might be a Soviet spy. I
just categorized him as a stuffed shirt!
Hollis is not the only (potential?) spy I failed to
recognize as such and whose perfidy is revealed in Too
Secret Too Long. In. 1982, an inspection trip was
arranged for me to evaluate the strategic Simonstown
dockyard and the Silvermine intelligence center outside
Capetown-or so I thought! My official host was the
same Commodore Dieter Gerhardt (not commander as
Pincher ranks him) who had been a paid spy for the
Soviets for over 20 years. He and the commodore in
charge at Silvermine were very polite and even took me
to lunch at the Kirstenbosch Botanical Gardens. But
they never showed me anything but empty rooms-a
fact I duly reported to intelligence on my return to
Washington, without, however, suggesting anything ex-
cept that Commodore Gerhardt kept me from learning
much about Simonstown! And all the while he was sell-
ing the Silvermine commodore's secrets. What a strange
luncheon gathering it was.
Author Pincher is absolutely right that it takes an on-
going counterintelligence organization to sniff out every
suspicion even if it leads to the senior engineering
officer in the South African navy who sold everybody's
secrets he could get his hands on, including ours and
Great Britain's. And that organization must not be in-
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hibited or prohibited from the top. According to all
accounts, it was such an organization, Israel's Mossad,
which first suspected Commodore Gerhardt and his
wife and followed them all the way to the Bolshoi in
Moscow via London and Vienna. Apparently he made
the mistake of leaking an Israeli secret. Both of the Ger-
hardts are now in jail-he for life-and South Africa
is reported to be looking into its counterintelligence
efforts, just as Chapman Pincher is urging his country
to do.
There are many more sickening examples of the dam-
age wreaked by moles in British intelligence. An out-
standing one is the Prime case which the author calls
"GCHQ's Billion Dollar Spy" (see Chapter 55 and
Intelligence Report for December 1983). The Security
Commission's report on the Prime case disclosed the
most appalling deficiencies in this most secret of British
installations, all of which Pincher comments upon.
Chief among them were the failure of the positive vet-
ting system, the lack of physical security so Prime could
take out highly classified material at will, union slow
downs and strikes, and no use of the polygraph.
The author commends the report and recommenda-
tions of the Security Commission in the Prime case. He
is the first journalist in England that I have seen to en-
dorse the use of the polygraph. But, he points out,
Security Commission reports are backward looking. In
addition to the use of the polygraph and the training of
MI5 agents in its use, Pincher wants forward looking
oversight of intelligence operations, and that is the
second major theme of Too Secret Too Long.
After almost every chapter, Pincher advocates and
champions the use and lauds the potential value of over-
sight of intelligence activities. At one point he relates,
quoting confidential American sources (about one-third
to one-half of his footnotes cite confidential sources):
I have been assured that, to date, the benefits
of oversight have outweighed any disadvantages
and that the services themselves now favour it, if
only because it spares them from unfounded
criticism.
Let me say to Mr. Pincher that oversight is not, as
they say in his country, "all beer and skittles." I am
sending him an article and a column by a retired CIA
employee which appeared in the Washington Post on
January 2 and which describes the pitfalls and pratfalls
our oversight procedures have brought to the American
intelligence community. How our intelligence oversight
mechanism would fit into the British parliamentary
system is not for an American to say. The prescription
for Britain is given by the author at pages 586-87, but
again the whole oversight process is a "sticky wicket"
on both sides. I think our oversight procedures should
be more closely examined by the author before he tries
to transplant them to a similar but different political
system. He needs to do more investigation into our
many oversight bodies and perhaps even write another
book or article on the subject.
Let me conclude by saying this is an important book,
perhaps the most important ever written about the
strengths and weaknesses of world intelligence systems.
It should be read by all who teach or are merely inter-
ested in intelligence.
1984: The Year in Review
Continued from page 2
Three successful elections in two years are a
clear repudiation of the insurgency. The people
of this country have declared themselves in favor
of the democratic process. The delegation calls
upon all Salvadorans, including members of the
armed opposition, to heed the message of this
election.
(Based on articles in April and July Intelligence
Reports.)
Administration Reports
On Soviet Arms Control Violations
On October 10, the administration released to Con-
gress, pursuant to congressional amendments to the
fiscal 1985 Defense Authorization Bill, a report on
Soviet violations of treaties and declarations bearing on
arms control and disarmament. The report was
prepared by the bipartisan General Advisory Committee
on Arms Control and Disarmament, which had been
studying the subject for more than three years.
The report substantially increased the number of
named violations-still holding in reserve a large
number of violations which were not listed in the
declassified version given to Congress and the public.
The report is the first comprehensive United States
study of all Soviet practices under arms control obliga-
tions since World War II. It studied 26 documentary
agreements along with numerous unilateral Soviet com-
mitments. The committee noted that in most cases of
alleged Soviet violations, the Soviets readily could have
shown that the allegations were false-if they had been
false. In summing up its findings, the committee said:
The Committee has determined that the Soviet
Union's practices related to about half of its
documentary arms control commitments have
raised no questions regarding compliance. Soviet
practices related to the other half, however, show
material breaches-violations, probable viola-
tions, or circumventions-of contractual obliga-
tions.
Among the Soviet violations made public by the presi-
dent's message to Congress, it was noted that-
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1984: The Year in Review
Continued from page 5
? The Soviets had breached the unilateral commit-
ment not to send offensive weapons to Cuba, thus
precipitating the Cuban missile crisis in 1962.
? In return for a U.S. agreement not to invade Cuba,
the Soviet Union had committed itself not to base offen-
sive weapons in Cuba. Despite this, from 1970 to 1974
the Soviets had deployed and tended nuclear weapons
submarines in Cuban waters.
? The Soviets had violated the Geneva Protocol of
1925 prohibiting the use of chemical and toxin weapons,
and had violated the Biological Weapons Convention of
1972 by continuing to produce, store, transfer, and use
such weapons up to the present time.
? The Soviet Union had systematically violated the
provisions of SALT I (agreement) barring the use of
concealment and missile test encryption to impede
verification of compliance by national technical means.
? The Soviets had violated the ABM treaty by build-
ing a massive phased array radar system at Krasnoyarsk
in Siberia, which makes sense only in the context of a
national ABM system.
In concluding its report, the General Advisory Com-
mittee said:
The Committee found recurring instances of
Soviet conduct involving deliberate deception,
misdirection, and falsification of data during
negotiations ....
The development of means to safeguard the
U.S. against Soviet non-compliance is essential if
the arms control process is to avoid being further
undermined, if it is to have favorable long-term
prospects, if it is to build trust among nations,
and if it is to contribute to U.S. national security
and the cause of peace.
(Based on article in November Intelligence Report.)
Attorney General Smith Charges
Communist Disinformation, Drug Activities
Violate Rule of Law
Editor's Note: We do not oridinarily review speeches
in our annual report, once we have excerpted from them
in our monthly Intelligence Report. The speech made
before the American Bar Association by Attorney
General William French Smith on August 6 has been
made an exception to the rule because it dealt with two
subjects that have not been emphasized by previous at-
torneys general: Soviet disinformation activities and the
involvement of communist governments in drug traf-
ficking targeted at the United States.
Communist active measures strike at the intellectual
underpinnings necessary to the rule of law....
As you know, the Soviet Union has chosen to boycott
the 1984 Olympics now underway in Los Angeles....
We were especially concerned by reports in the press
that the Ku Klux Klan had allegedly mailed threatening
and abusive letters to some 20 Asian and African coun-
tries planning to take part in the 1984 Olympic Games.
We have copies of those letters.
But even more reprehensible than the letters
themselves is what we now know about their actual
origin. They were not produced or sent by the Ku Klux
Klan. They were instead manufactured and mailed by
another organization devoted to terror: the KGB....
The damage done in this country by trafficking in
drugs is well known in the ruined lives of drug users, the
tremendous illicit and untaxed profits generated for
criminals, and the violence spawned by users and traf-
fickers. Any coming together of terrorist or insurgent
groups and drug-trafficking must be viewed as an ex-
tremely serious threat to law and society.
We believe that two foreign governments-Cuba and
Bulgaria-have actively used drug-trafficking to assist
terrorists. In November 1982 a federal grand jury in-
dicted four high-ranking Cuban officials, nine others,
and the alleged Colombian drug trafficker Jaime
Guillot-Lara. According to the indictment, the Cuban
officials included: a member of the Central Committee
of Cuba's Communist Party, who was also president of
the Cuban Institute of Friendship with the People;
Cuba's ambassador to Colombia; another Cuban
diplomat in Colombia; and a Cuban vice-admiral, who
was also a member of the Communist Central Commit-
tee.... [the evidence] has already resulted in the convic-
tion of five of the defendants ....
Just last week, a federal grand jury in Miami indicted
11 persons on drug-trafficking and conspiracy charges
involving a major cocaine shipment smuggled into this
country via Nicaragua. One of those defendants-
Federico Vaughan --has been identified in court
documents as an aide to the Sandinista minister of the
interior.
The facts alleged in the indictment make it especially
hard to believe that these drug smugglers-four of
whom are believed to be among the largest smugglers in
the world-could have been operating in Nicaragua
without active assistance from someone in power in the
Sandinista regime.
(Based on article in September Intelligence Report.)
Debate on Use of Chemical, Toxin Weapons
The year 1984 witnessed an intensification of the in-
ternational discussion on chemical and toxin weapons.
On the one hand, the United States stood by its charges
that the Soviet Union had provided its Vietnamese
clients with trichothecene toxins which they had used
against rebellious tribesmen in Laos and Cambodia and
that it had used chemical and probably toxin weapons in
Afghanistan. It also condemned the use of chemical
weapons by Iraq in the Iran-Iraq war. On the other
hand, the United States addressed the entire question
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frontally and in detail when Vice President Bush, on
April 18, presented to the U.N. Disarmament Con-
ference in Geneva the draft of a convention prohibiting
the use or possession of chemical weapons as in-
struments of war.
The use of toxin weapons in Indo-China has been
denied by the Soviet government, and the evidence has
been attacked as flimsy or non-existent by some scien-
tists in the Western world. However, Mr. Stuart
Schwartzstein, a noted expert on chemical and
biological warfare, informed a breakfast meeting con-
vened under the auspices of the Committee on Law and
National Security on May 14 that after three years'
work on the issue, both in and out of government, he
had no choice but to conclude that the Soviets and their
Vietnamese clients were indeed guilty of the use of
chemical and toxin weapons in Southeast Asia. His con-
clusion rested not only on numerous interviews with the
Hmong refugees in Thailand who had been victims of
such attacks and on interviews with communist defec-
tors but on the testimony of independent scientists, in-
cluding a medical commission set up by former Prime
Minister Trudeau of Canada.
He noted that Professor Meselson of Harvard
University and several other American scientists had
challenged the conclusion that Soviet-produced toxin
weapons had been used in Laos and Cambodia, arguing
that the toxins in question were in fact bee feces.
However, no Western scientific personnel familiar with
the medical history of the southeastern Asian peoples
knew of any incidents of the symptoms manifested by
the victims of "yellow rain" that could be attributed to
bee feces. The combination of acute symptoms was
peculiarly a phenomenon of recent years.
In 1925 at Geneva, under the auspices of the League
of Nations, a protocol was signed banning the use of
chemical and biological weapons as instruments of war.
However, the protocol did not contain any provision
regarding possession of stockpiles, production or
research and development of chemical weapons, nor did
it contain any provisions for verification of compliance
or consultation. For these reasons it left the interna-
tional community harboring deep suspicions about
chemical warfare activities by potentially hostile na-
tions.
In 1972 the U.N. sponsored a convention that extend-
ed the Geneva protocol by prohibiting the production,
stockpiling or transfer of biological and toxin
weapons-but there was still no provision for verifica-
tion of compliance.
The 66-page draft convention on the prohibition of
chemical weapons filed by Vice President Bush differs
from previous conventions and protocols in this area in
the detailed manner in which it provides for the phased
destruction of production facilities, inspection of
stockpiles, and on-site verification. It also spelled out
the details of an agreement on mutual on-site inspec-
tion. It specified that there shall be systematic on-site
verification by a consultative committee on chemical
weapons and their destruction, and the closure and
destruction of chemical weapons production facilities.
It stipulated that any request for an on-site inspection
must, within 24 hours after receipt of such notification,
"provide the inspection team unimpeded access to the
location or facility."
Spokesmen for the administration have insisted that
details of Bush's draft protocol are negotiable-but on-
ly within a framework that would give the United States
confidence that the basic provisions of the treaty were
being complied with.
(Based on articles in May and July Intelligence
Reports.)
Debate on Polygraph Testing
In March 1983, the administration promulgated Na-
tional Security Decision Directive 84 authorizing the use
of the polygraph to determine the source of government
leaks of sensitive information and requiring lifetime
prepublication review of writings by employees with ac-
cess to sensitive compartmented information. On
February 15, 1984, it was announced that the ad-
ministration would not press ahead with these pro-
grams.
The retreat was a tacit acknowledgment of the fact
that there was much congressional opposition to both
proposals, even on the part of staunch Republicans. An
administration spokesman said that the administration
had erred in not preparing the way more carefully for
the introduction of the two proposals.
In a belated response to critics of polygraph testing on
Capitol Hill, the Department of Defense, in April 1984,
produced a sizeable monograph entitled, "The Ac-
curacy and Utility of Polygraph Testing." It is not com-
monly realized, said the monograph, that there has over
the years been a vast improvement in equipment,
methodology and investigator training. The use of the
polygraph can never supplant a fair trial for the purpose
of determining whether a person is guilty or innocent.
However, it has proved itself a powerful adjunct to con-
ventional investigation.
What is not commonly realized by the critics is that
the polygraph is used regularly by 15 government
departments/agencies including the epar ment of
Defense, the Secret Service, the FBI, the CIA, the -
United States Marshals, and the U.S. Customs Service.
These 15 agencies meet regularly at least four times a
year in the Federal Interagency Polygraph Committee.
The polygraph has been used routinely among other
things in the investigation of felony crimes by the
Armed Forces investigative services-the Army
Criminal Investigative Division, the Naval Investigative
Service, and the Air Force Office of Special Investiga-
tion. The U.S. Army uses the polygraph in 95 percent of
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1984: The Year in Review
Continued from page 7
its investigations of crimes carrying the maximum
penalty of 15 years or more. The Pentagon study notes
that the Army during that period of time solved 64.7
percent of its felonies against a national average for the
same period of 19.5 percent.
The most common criticism of the polygraph is that it
constitutes a massive invasion of privacy. However,
blind questionnaires submitted to U.S. Air Force and
private industry personnel who had undergone poly-
graph testing, raise serious questions about the validity
of this criticism. By 98 to 99 percent, 1,365 Air Force
personnel answered that they were not "offended, em-
barrassed, humiliated, or degraded in any way" during
any part of the examination, nor did they feel that there
had been any unwarranted invasion of their privacy.
They said that, if they changed jobs and their new
employer required a counterintelligence security
polygraph examination, they would undergo such an ex-
amination. They also said (94.9 percent) that polygraph
examinations enhanced the security of their work en-
vironment and that they would favor the use of
polygraphs in cases of suspected espionage or sabotage
(99.2 percent).
(Based on "Book Review," Intelligence Report, June
1984.)
Major Court Decisions
Impacting on National Security
McGehee v. Casey, Slip Opinion No. 81-2233, October
4, 1983.
McGehee, on being employed by the CIA in 1952,
signed a secrecy agreement promising not to divulge
classified information obtained by virtue of his employ-
ment unless authorized in writing by the CIA to do so.
After the CIA censored portions of a manuscript of his,
McGehee sought a declaratory judgment that the "CIA
classification and censorship scheme violates the first
amendment and that, even if the scheme is constitu-
tional, his article contained no properly classified
material."
The District Court rejected McGehee's contentions.
Judge Wald, who delivered the Circuit Court's opinion,
said that "the government has a substantial interest in
assuring secrecy in the conduct of foreign intelligence
operations," and that "in this case, the CIA properly
classified the censored portions of McGehee's ar-
ticle...." (See February Intelligence Report.)
Steven C. Schlesinger v. CIA, Civil Action No. 82-1749,
March 5, 1984.
The CIA had turned over to the plaintiff 165 respon-
sive documents but refused to turn over 180,000 pages
of a "raw file" concerning U.S. involvement in the 1954
Guatemalan coup. The CIA, by affidavit, stated that
the documents withheld "would reflect specific and par-
ticular intelligence activities... methods utilized... and in-
telligence sources."
The plaintiff appealed against denial of the
documents under FOIA. The court, however, rejected
the appeal, stating that "After in camera review of the
classified affidavit and sample documents, the court
agrees with defendant that further public description of
the documents and the agency's justifications for
withholding them would jeopardize national security in-
terests and is not required." (See May Intelligence
Report.)
Londrigan v. FBI, Slip Opinion No. 83-1101 CA DC,
December 13, 1983.
The Privacy Act requester, Joseph P. Londrigan,
sought a court order directing the FBI to disclose the
identities of the persons who provided information
about him during the course of a 1961 background in-
vestigation. The district court granted summary judg-
ment for the FBI. The Court of Appeals reversed and
remanded, because of faulty presentation by the FBI.
After further proceedings, the district court granted
summary judgment for Londrigan. The Court of Ap-
peals stated that this volte-face was unwarranted. The
decision said that "through the submission of affidavits
of agents who participated in the Londrigan back-
ground investigation, the FBI did all a court could
reasonably demand of the Bureau to show the existence
of an implied promise that sources' names would be
held in confidence." (See April Intelligence Report.)
Standing Committee on Law and National Security
Chairman: John Norton Moore. Members: Richard E. Friedman, Rita E. Hauser, Ronald A. Jacks,
Max M. Kampelman, Monroe Leigh, John B. Rhinelander, John H. Shenefield,
Daniel B. Silver, Raymond J. Waldmann, R. James Woolsey.
Advisory Committee Chairman: Morris I. Leibman.
The views expressed in this publication are not necessarily those of the American Bar Association or the Standing Committee
on Law and National Security. Questions or comments should be directed to W.C. Mott, Editor, 217 9th Street, S.E.,
Washington, D. C. 20003, Tel. [phone].
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