CONFERENCE ON INTELLIGENCE LEGISLATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00806R000100080028-2
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 143
• Document Creation Date: December 22, 2016
• Document Release Date: September 13, 2010
• Sequence Number: 28
• Publication Date: June 26, 1980
• Content Type: OPEN SOURCE

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CONFERENCE ON
INTELLIGENCE
LEGISLATION
Standing Committee on Law
and
National Security
American Bar Association
June 26-28, 1980
University of Chicago Law School
Chicago, Illinois
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CONFERENCE ON
INTELLIGENCE
LEGISLATION
Standing Committee on Law
and
National Security
American Bar Association
June 26-28, 1980
University of Chicago Law School
Chicago, Illinois
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TABLE OF CONTENTS
FOREWORD
Welcome and Introduction: Mr. Morris I. Liebman
I
Honorable Frank Carlucci
2
Dean Gerhard Casper
Honorable John 0. Marsh, Jr.
I I
15
1.
OVERVIEW OF INTELLIGENCE CHARTERS
30
Moderator: Mr. Raymond J. Waldmann
30
Mr. William G. Miller
31
Mr. Kenneth C. Bass, III
40
Professor Roy Godson
48
II.
THE ROLE OF THE JUDICIARY AND THE STANDARDS
TO BE APPLIED TO INTELLIGENCE OPERATIONS
55
Moderator: Professor Antonin Scalia
55
Morton Halperin
57
Honorable Edward Levi
68
Honorable William Webster
72
Ill.
THE CONGRESSIONAL ROLE
79
Moderator: Mr. Charles Ablard
79
Mr. Herb Romerstein
80
Representative Ron Mazzoli
84
Professor Ernest Gellhorn
88
Mr. Frederick P. Hitz
94
Professor Philip Kurland
98
IV.
THE PUBLIC'S RIGHT TO KNOW AND THE NEED
FOR OPERATIONAL SECRECY
102
Moderator: Mr. Michael Uhlmann
102
Mr. Daniel B. Silver
103
Mr. Floyd Abrams
113
Dr. Angelo Codevilla
121
Mr. Frank Barnett
129
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FOREWORD
As part of its continuing effort to enrich public understanding of critical
national security issues and, particularly, to involve the Bar in their resolution,
the American Bar Association's Standing Committee on Law and National
Security sponsored a Conference on Intelligence Legislation, June 26-28, 1980, at
the University of Chicago Law School, Chicago, Illinois. The purpose of the
Conference was to provide a forum for a broad-gauged discussion of the relevant
issues by representatives of groups and organizations with special competence
and interest in intelligence matters. The desired representation was achieved
through the participation of more than 150 present and former government
officials, media representatives, law professors, private practitioners, American
Civil Liberties Union officials, members of the intelligence community, and
leaders of the business community.
The substantive program, revolving around the competition between the
public's right to know and the government's need to protect information
generated or utilized in its operations, consisted of presentations by leading
specialists on media, civil rights and national security law. The specific subjects
included the history of intelligence, the "great debate" concerning the need to
balance individual and national security interests, the specific legislative
proposals and actions of the 1970s, and the anticipated developments in the
1980s. The format provided ample opportunity for extensive group participation,
including partisan debate which, although heated at times, never lost its
constructive tone. The amount of light generated far overshadowed the
accompanying heat.
The positive response to the Conference has encouraged the Committee to
prepare the written proceedings that follow. Convinced that an informed
approach to national security issues is key to the survival of an open society, the
Committee will pursue its enrichment effort.
Morris I. Leibman
Chairman, Standing Committee on
Law and National Security
Chicago, 1980
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CONFERENCE ON INTELLIGENCE LEGISLATION
AMERICAN BAR ASSOCIATION
June 26-28, 1980
University of Chicago Law School
Chicago, Illinois
Welcome and Mr. Morris I. Leibman
Introduction: Chairman, Standing Committee on Law
and National Security, ABA
Welcome to our Conference on Intelligence Legislation. We of the American
Bar Association are delighted to join in this program with our host partner, the
University of Chicago Law School, headed by Dean Casper. One of our friends,
whom many of you know, wrote me this morning from the Middle East saying
that he hoped we'd do well because he, too, is trying to learn the difference
between intelligence legislation and intelligent legislation. In our previous
workshops and conferences the first evening, this evening, is usually reserved for
a dinner for the panelists and the people on the program. When we were advised
that our speaker for the evening would rearrange his difficult schedule to fly in
to be with us tonight, we decided his remarks should be available to all of the
participants. We are delighted that Mr. Carlucci has made this possible.
Frank Carlucci is truly a man of all seasons. He's been in business and his
government service includes the Navy, Foreign Affairs, and Domestic Affairs.
He was educated at Princeton and Harvard, served in the Navy, and joined the
Foreign Service in 1956, spending a good deal of his time in Africa and Brazil. I
first met Frank in 1969, as he joined the Office of Economic Opportunity and
became its Director at a time when I was Chairman of the President's Council.
His ability was recognized by all, and he went on to become the Deputy Director
of the Office of Management and Budget in the White House and then served as
Undersecretary of HEW. While Frank was there, they didn't take the "E" out.
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The President designated him as United States Ambassador to Portugal in
1974, and he served in that sensitive post for three critical years. His superior
service has earned him numerous awards from the State Department, the
Defense Department, and HEW. Certainly, we are fortunate that a man with
such broad, deep, and relevant experience was selected as the Deputy Director of
the Central Intelligence Agency, to which post he was appointed by the President
on February 18, 1978. We are delighted to have him with us, and I give you
Director Carlucci.
Honorable Frank Carlucci
Deputy Director
Central Intelligence Agency
Thank you, Morry, for those very kind words. I am delighted to be with you
tonight, and I congratulate you, Marry, and Dean Casper for organizing this
conference. I think this kind of conference can do a great deal to illuminate the
very difficult issues that our country faces in the intelligence area. And as you
begin your deliberations, let me start off with a reminder. You will be studying
in depth the role of the Congress, the role of the Executive, and the role of the
Judiciary in structuring the legal framework for our intelligence agencies. In
doing this you will necessarily bring to bear traditions of the American legal
profession and the American governmental system. But, as you do this, I think it
is important that you bear in mind that those of us in the intelligence agencies,
that GS-12 or 13 up there in some other country trying to recruit an agent,
operate under circumstances where our rules are not necessarily applicable. Our
cultures are very different.
I'm reminded of the time when I was a young Foreign Service officer back in
1960, and I'd been assigned to the Congo, Zaire, then Leopoldville. It was shortly
after independence and the Congo was in chaos. We had a visit from three
American senators--Senator Gore, Senator Hart, and Senator Neuberger. I was
named as escort officer and I had arranged for them to have lunch at the home of
the President of the Congolese Senate, a man named Victor Cumarico. In those
days you very seldom saw the wives of the Congolese, but as we came in the door
a woman came up who I introduced as his wife. We were sitting around having
drinks before lunch (I was interpreting), and another woman came in and shook
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hands a! I around, went over and sat down next to the first woman. Senator Gore
turned to me and said, "Who is she?" And I said, "Well, I don't know, maybe she's
his wife." He said, "I thought you said that first woman was his wife." I said,
"Let me ask him." I asked him and he said, "Oh yes, both of them are my wives."
Well, with that the interest of the American senators picked up considerably.
And Cumarico said, "Oh, you must really understand that over here our customs
are very different from yours. From where I come from in the Leopold district
of the Congo, I'm a big tribal chief and as a tribal chief I'd normally be entitled
to five or six wives. But since I'm a Catholic, I have only two."
So if we think about it, the strangeness of the intelligence business operating
in other cultures becomes apparent. We, in organizations like the CIA, must go
forward with our task, often in disregard of foreign law. And there's a paradox
here, because in this country we are sometimes mesmerized by our legalisms
when we structure our environments in which our intelligence agencies must live.
But in so doing we must be careful not to block out the realities of our operating
environment. The decision makers in our country need a great deal of
information. This information is not easy to come by, by definition. We in the
intelligence business go after the most difficult and, by definition, other
countries want to conceal it from us. Our job is to get it. We do so in many
cases by establishing a contractual relationship, something very familiar to you
lawyers. The agent provides a service, information, and we frequently but not
always provide some compensation, salary. There are two significant differences
from the usual contract. One is that in many instances that contract may break
the law of the agent's host country. And the second is that that contract by
nature must be secret. Now, I don't think any of us should make any apologies
for this procedure. When it comes down to the hard facts, our country has no
alternative. The problem that we all face, and you as lawyers in particular face,
is how we sanction this kind of activity within a carefully drawn legal
framework.
The 1947 National Security Act simply said do what's necessary. It dodged
the issue. Or perhaps it is possible, I personally think it is, to be more specific;
but in being more specific, we must always bear in mind that we are legalizing an
activity that is inherently antagonistic to the interests of other countries in
which that activity is going to be conducted.
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There's another upside down element to the intelligence business. In our
society openness is a virtue. The government can't be closed. We have sunshine
laws, open advisory committee meetings; we're perhaps unique in the world in
this aspect. But in the intelligence business we must by nature circumscribe our
openness. Secrecy is absolutely imperative. Well, you say, that's a truism. Of
course, we all know that. But I can tell you quite frankly in the two and a half
years that I've been in the CIA, getting this simple concept across has been our
single most difficult problem. Our problem throughout the world is that nobody
believes we can keep a secret. And it's not just a simple problem of leaks. Quite
frankly it's the entire atmosphere in which we operate. As you're all aware,
we're living in the post-Watergate, post-Vietnam syndrome where the emphasis
has been placed on the investigative reporter, the inspector, the oversight
mechanism, the leaker who almost inevitably takes on a moral mantle and says
he's a whistle blower. All of these people and functions have a very legitimate
role. No question about it. I don't mean to gainsay it. So does the doer have a
legitimate role and we have to strike a balance. I would suggest to you the
balance has been tilted a bit away in government from the man who must
accomplish the mission. We need to give him some incentives, too. We need to
give him some tools. In the intelligence business the principal tool--I'm almost
tempted to say the only tool--is secrecy, because nobody is going to impart
information to an intelligence representative if he thinks he's going to see it in
the open press and if this information is going to be traced to him. This inability
to protect confidentiality of the information given to us has hurt us.
Now our critics say, "Demonstrate this." Well, you as lawyers know how
difficult it is to prove a negative. Nobody is going to come up to you and say,
"Well, I didn't give you this information for this reason." We've had some cases
of people who have said, "I can't trust you; therefore, I'm signing off." But in the
vast majority of cases people just discontinue contact or don't establish contact
in the first place, and you never know how much information you didn't receive.
But time and time again we are asked, "Well, is this information going to go to
the Congress? Can you protect me? What about the Freedom of Information
Act?" When you're involved in high stakes, nobody wants to play with a partner
who can't control his own hand.
Before we frame new laws in any business, including the intelligence
business, I think we need to be clear on the existing laws. Some moments ago I
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suggested that because of the world in which we operate some of our usual norms
do not apply. I would suggest also that our standards have not remained constant
but have changed over time. We have had a propensity to indulge in retroactive
morality and to give it a legal base. We have perceived in the seventies what
seemed to have been a good idea for law in the fifties and sixties. We have seen
numerous accusations that intelligence agencies have acted illegally when, in
fact, the law has only been interpreted as such in recent times. An example is
the retention by CIA of counterintelligence information on U.S. persons.
Everybody readily concludes that that's illegal, although the CIA has long had
counterintelligence responsibilities and much of the same kind of information is
held by other agencies without any problem. Sorting out this particular issue has
been complicated. It has now been determined that CIA can act in this area only
in cooperation with the FBI. That is a recent development, not as much of the
press would have you believe the law as it existed in the sixties. Of course we
recognize that times have changed, and we in the intelligence business don't want
to turn the clock back. To the contrary, we think our mission is to look ahead
into the 1980s and to put all the polemic behind us. And in so doing we welcome
guidelines and safeguards through statutory authority and through the surrogate
process. These are helpful, providing of course that they don't impede our ability
to do our job.
As we've gone through successive iterations of intelligence legislation, there
are some concepts that have arisen that I personally consider a bit curious or
difficult. One is that we can reduce every detail of the intelligence business to
statute. The original intelligence charter, S. 2525, 273 pages, had an array of
prohibitions, restrictions, and reporting requirements. There was even one that
said CIA should be prohibited from covertly taking action likely to lead to flood,
pestilence, plague, or mass destruction of property. And in CIA there was a
tongue-in-cheek comment that we ought to oppose this just to keep our options
open. But the sting was there. I think all of us, including the vast majority of
people on the Hill, now realize that we can't legislate the intelligence business in
that kind of detail.
There is another interesting concept, legislation which is perhaps not unique
to the intelligence business but which runs somewhat along the following lines. If
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you don't like the policy--kill the instrument. This has happened with covert
action, our ability to try and influence events in other countries clandestinely.
There were people who objected to how this instrument was used--in Chile,
Angola, perhaps elsewhere. Fair enough, but saying that you can't have this
capability because we object to that policy is like saying we can't have an aid
program around the world because we object to the way aid was handled in Brazil
in 1966. It's even gone one step further, in my judgment. We created an optical
illusion, because we said our country will have a covert action capability. All
that has to happen before you start one of these operations is for the President
to make a finding and you brief eight committees of Congress. That's two
hundred members of Congress, perhaps fifty staff. Now, fair enough, we haven't
always had to brief that many members. But as long as the requirement exists it
is a significant deterrent to a flexible instrument that purportedly has been given
to the President.
Despite the problems that I've mentioned, it seems to me that we have
reached agreement in the body politic on some of the very large issues that have
faced our country in the intelligence area. First of all, we have agreed that we
need an effective intelligence organization; we need an effective CIA. Some of
you may have seen the ABC program the other night on intelligence; the
commentator was Britt Hume. He interviewed me for some forty minutes--none
of the interview was used on the program--but the theme he was following in the
interview was how in the world have you guys pulled the wool over the eyes of
the Congress and the American people, because four or five years ago we were
ready to tear you apart and now we find this outpouring of sympathy for CIA. I
allowed as how I didn't exactly see an outpouring of sympathy, but I detected a
lot of support and I presumed that some of the arguments we were making
carried a certain amount of weight. But the fact is that the American people,
perhaps as never before, realize how important intelligence is to their well-being
and we can no longer continue to pull it out by the roots just to see how it's
growing.
We have decided that the U.S. government will have covert action capability
and that it will be housed in the CIA. I think there is a widespread consensus on
the Hill that we do need to cut down the reporting requirements from eight
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committees to two. And if there's any bill that will pass this year, I think it is a
bill that cuts down on the Hughes-Ryan reporting requirement. There is a
consensus that CIA needs to protect the information it receives. The only issue
is how to do this. There is a consensus that U.S. citizens must receive a full
measure of protection of their constitutional rights vis-a-vis intelligence
organizations. And there is a consensus that there will be effective oversight of
our intelligence organizations. I'm pleased to report to you that, in my judgment
at least, oversight is working well. We don't always agree with our friends on the
committees and vice versa. We get criticism, we get support, and we have a
heated dialogue. The important thing is that it's there and it's working and it's
working well in my judgment.
These new aspects of agreement are now very much a part of intelligence
community life. There are still some issues that remain to be resolved. One of
these is the whole question of statutory access to CIA intelligence information.
Is it necessary for the oversight process? There are those who argue that it is.
We've had a relationship for the past two years which we both say is satisfactory.
Let's continue that relationship where we are furnishing the information that you
need. If you build in a statutory requirement, there must be some exceptions,
otherwise you raise questions around the world. I myself have been told by
people who were giving us very important information, "We will give you this
information providing you promise us that you will not give it to the Congress." I
was able to make that commitment because if I passed that kind of a
commitment onto the Congress today, they respect it. With a statutory right of
access, there is no way that I could make that kind of commitment.
There remains to be worked out the question of details on the collection of
intelligence on U.S. persons. Now there's been a lot of debate on the tensions
between civil liberties and intelligence. As a practical matter, looking at its
pragmatic aspects, I think this debate has been overdone. We don't need a lot of
intelligence on Americans. The problem is that when we do need it, it's liable to
be critical. We can all think of cases where intelligence collection on an
American citizen might be important: a dual national who is in a high position in
a particularly critical country or the American scientist who might be engaged in
the building of a bomb for a potential nuclear proliferator.
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The question, in my judgment, is not whether or what kinds of thresholds
should be built. And we agree that there ought to be substantial thresholds. So
we see it not as an either/or question but as essentially a design question. There
is the issue of how much exemption there should be from freedom of information
concepts. And here there's been a good deal of misunderstanding. The press
would have you believe that we have sought a blanket exemption from the
Freedom of Information Act. We have not. We have sought the authority to
exempt our most sensitive sources and methods from release and from judicial
review. This position has been supported by the Justice Department, but we will
continue to respond to first-person requests and to requests for our finished
product.
Also unresolved is the form identities legislation should take. Everybody
agrees that the practice of deliberately exposing CIA personnel and CIA agents
overseas with the avowed purpose of destroying our intelligence organizations is
abominable. The question is how to deal with this practice without infringing on
First Amendment rights. We believe this can be done and we hope that it will be
done this year.
These are all issues that you will be debating and we will read the results of
your deliberations with great interest. But let me give you, for just a minute
before closing, a non-lawyer's appreciation of what is at stake. The 1980s, in my
judgment, will be a very difficult period. We are finding that our nation's
interests are increasingly intertwined with developments in all parts of the
world. We learned in Afghanistan that it's not sufficient to know Soviet
capabilities. We have to know their intent. We learned in Iran that we need to
have intelligence on political/social developments. We learned in Central
America the importance of intelligence in subversive activities. And we learned
in the oil crisis the importance of intelligence collection and analysis in the
resource areas. The U.S. and Soviet strategic forces are now more in balance
than ever before. My judgment is Soviet leaders see themselves free to
undertake additional Afghanistans and Ethiopias as long as they don't challenge
vital U.S. interests. Under the protection of their strategic power they can wield
their very substantial conventional power and their very substantial capability
for political action.
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There are two uncertainties in Soviet society. They have their problems:
rising consumer expectations; labor shortages; declining growth rate; unrest in
Eastern Europe; topping out in oil production which is perhaps the most
important transition. I frankly doubt that we should take any satisfaction in the
problems of the Soviet Union. We know very little about the leadership that is
likely to come in after the transition phase--post-Stalin leadership. We have a
conservative leadership in the Soviet Union right now. Nobody knows how a new
leadership under the pressure of the topping out of oil production, consumer
expectations, and the other problems I mentioned, will react. The 1980s clearly
will be a difficult period in our relations with the Soviet Union. Similarly, there
will be no let up, in my judgment, in the problems of the Third World. In addition
to the aspirations of the Third World, we have a growing division between the
upper and lower tier of Third World countries. And then in Europe we see an
emerging economic power that could lead to stronger political positions on the
part of our allies.
The ramifications of all of this for intelligence are profound. There is less
and less margin for error. We must succeed in getting good intelligence with
regard to both intentions and capabilities. During the period to come,
intelligence could make that crucial margin of difference. There are those who
think that the paramount threat in this country comes from within, from the
excesses of our own institutions. As one who has lived in a number of countries
where democratic institutions have been destroyed, I share that concern. But
I've also seen Soviet expansionism at work, and that danger is no less real. And
what we're talking about is not a tradeoff. It seems to me we can certainly
accommodate concerns on both sides of the intelligence issue if we can just
control our emotions in channeling our intellects. You as lawyers are the
dispassionate element in American society. We need your help. The tools of the
profession here assembled are those of law. Thanks to the legal system, the
richness of the legal system, there are a variety of measures that can be seized
upon to work our will. And thanks to the constitutional framework of that
system, the levers and gears of our self-governance are never very far away.
While the tools are there in profusion, it must take the wisdom of the law to
ensure that the measures apply to stimulate good help without permitting
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abnormal growths or flooding the system with toxic medicines. Lawyers know
only too well that the cry "there ought to be a law" takes us only to the starting
point of inquiry. Thank you.
QUESTION PERIOD
The question period following Mr. Carlucci's address included discussions of
what type of Freedom of Information Act could the CIA support; what type of
legislation does the CIA support to prevent agent disclosure; what kind of
oversight can be had without making the Agency ineffectual; and the power of
the Congress, through funding, to control, slope, and direct Agency activities.
Welcoming
Remarks:
Mr. Morris I. Leibman
Chairman, Standing Committee on Law
and National Security, ABA
Welcome to this morning's session. I thought I might just take a few brief
moments and give some little history of the Bar Association's interest and
antecedents in this area. In 1961, almost twenty years ago, Lewis Powell, who
was then Chairman, prepared a report on "The Educational System and the Need
for the Comparative Study of Totalitarianism, Communism, and the Free
Society." In this report he said that the first objective of the ABA as stated in
its constitution is to uphold and defend the Constitution of the United States and
maintain representative government. If the ambitions of the communist
dictators are realized, our constitution and representative government in
America will be destroyed. In a broader sense, freedom under law would be
destroyed everywhere. The preservation of this basic freedom, which embraces
all of our cherished freedoms, traditionally has been within the unique
competency and responsibility of lawyers and judges. For some quarter of a
century we have conducted numerous programs, including law professor
workshops which are held at various institutions such as the University of
Chicago, with the University as a co-host, and with the cosponsorship of the
International Law Section. We have had a number of these and we're delighted to
be here at the University of Chicago.
We also present a program each year at the Association of the American
Law Schools. In 1979, our featured speaker was our Counselor to the Committee,
Edward H. Levi, who spoke on "The Intelligence Issues in the Open Society." In
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II
1980, at the last session, our Committee member John Norton Moore spoke on
"The Developments in the Field of National Security Law."
The activities have multiplied since we became interested in the role of
intelligence in a free society. As that area became more recognized, and we
understood that we were developing a new body of law, this again became of
interest to the Committee, and we were very fortunate at that point in having
Professor Scalia, Ray Waldmann, and Mike Uhlmann join us in this work.
The last large conference was held in December 1979 in Washington and
many of you were there. Those proceedings have now been transcribed and
copies are available for everybody.
Four years after I graduated from this law school, when the building was on
the other side, an older but beautiful old Gothic, and Herb Fried in the audience
sat next to me, a beautiful male child was born in Hamburg, Germany, to the
Casper family. Forty-three years later he is our host and the celebrated Dean of
the Law School. I want you to know a little about his distinguished career. He
was educated in Hamburg, studied law at the Universities of Freiburg, Hamburg,
and Yale. He received a doctorate from the University of Freiburg in 1964.
From 1964-66 he was a member of the faculty of the Political Science
Department of the University of California at Berkeley. He was a visiting
Professor of Law at the Catholic University of Louvain in the fall of 1970. He's
known widely as a great writer and expert in the field of constitutional law,
constitutional history, the law of the European Community, and our own Supreme
Court. He is a real master of comparative law and jurisprudence. I don't want to
embarrass him any further by reading his honors, degrees, and awards. Dean
Casper.
Dean Gerhard Casper
University of Chicago Law School
Morry, as Dean, one gets used to being introduced. You surely get the prize
for the most unique introduction yet. It is a great pleasure indeed, ladies and
gentlemen, to welcome you to this conference at the University of Chicago Law
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School. In his opening remarks Mr. Leibman did not make clear that without his
moving spirit there would have been no conference. If you have never seen one
before, look at him closely. Mr. Leibman is a conditio sine qua non. So is my
colleague, Professor Scalia, who has applied to the conference project the
combination of acute academic inquiry and high level government experience
which has so greatly enriched the Law School since he joined its faculty in 1977.
If I may be permitted a decanal type of remark, I view this conference in
part as marking the special place of the University of Chicago Law School in the
field of scholarship concerned with the separation of powers. I think it is fair to
state that no other law school has so consistently recognized the extraordinary
importance of separation of powers issues in its research and teaching. From the
past I would single out only the names of Ernst, Freund, and Crosskey. As to the
present faculty, at least five of its members have concerned themselves in major
ways with these matters. In addition to Mr. Scalia, I may mention Edward Levi,
Philip Kurland, Kenneth Dam, and--last and least--myself.
In the last decade or so, there has emerged from Congress a type of
legislation that, while not unprecedented, is novel in its frequency and particular
applications. I have defined this type of legislation as framework legislation, a
term which is slowly gaining recognition in the literature. Framework legislation
attempts to ensure that the collective judgment, especially of Congress and the
President, will apply to important areas of public policy. It interprets the
Constitution by providing a legal framework for the governmental decision-
making process. Examples of such legislation are the War Powers Resolution of
1973, the Congressional Budget and Impoundment Control Act of 1974, and the
National Emergencies Act of 1976. In part, framework legislation results from
the increasing awareness that the judicial model of constitutional constraints is
not an all-purpose model.
Charter legislation, which sets up a framework for the intelligence activities
of the United States, is obviously of the same family--formally as well as
substantively. In these remarks I can be concerned only with the phenomenon
itself, not the particular substantive problems associated with these legislative
endeavors. Whatever these may be, and whether Congress will enact such a
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framework or not, the separation of powers issues will not go away. Intelligence
activities are simply too interrelated with the great questions of foreign policy
and, indeed, war and peace. These are not just political but also constitutional
questions. Furthermore, nagging doubts persist whether presidents and their
experts are the sole owners of the perspective and knowledge needed to define
the national interest in a hostile and complex world.
In facing the legal questions it will not do to juxtapose the simple world of
the early republic with the complexities of the modern world. This argument
proves too much, condemning the entire Constitution to irrelevancy. But one
may also doubt its accuracy. At the time of the Constitutional Convention,
Europe presented America with incredibly intricate foreign policy problems. The
Europe of that period was a tangled skein of shifting alliances, dynastic
ambitions, incipient revolution, and trade rivalries. The framers undoubtedly
came to appreciate the complexity of foreign affairs in a troubled world.
Nineteen-seventy nine saw the uncelebrated two hundredth anniversary of
the birth of Joseph Story. In his Commentaries on the Constitution, which date
from 1833, Story said about the ultimate question of war and peace and the
matters closely related to our subject here today, the following, and I may quote:
"But in the exercise of such a prerogative, as declaring war, dispatch, secrecy,
and vigor are often indispensable, and always useful towards success. On the
other hand, it may be urged in reply, that the power of declaring war is not only
the highest sovereign prerogative; but that it is in its own nature and effects so
critical and calamitous, that it requires the utmost deliberation and the
successive review of all the councils of the nation. War, in its best state, never
fails to impose upon the people the most burthensome taxes and personal
sufferings. . .. It is sometimes fatal to public liberty itself, by introducing a
spirit of military glory, which is ready to follow, wherever a successful
commander will lead, and in a republic, whose institutions are essentially founded
on the basis of peace, there is infinite danger, that war will find it both imbecile
in defense, and eager for contest. . . . The cooperation of all the branches of the
legislative power ought, upon principle, to be required in this the highest act of
legislation, as it is in all others." I hope we will have a very successful
conference.
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Morris Leibman
There are a number of very technical lawyers in the audience who pointed
out to me that in the first draft of the program we had some references to Mr.
Schlesinger. Then it said John Marsh. Well, that was done deliberately because
when Jim said he might be here, we knew how uncertain he was and we made
arrangements immediately that Jack would be here to either introduce him,
welcome him, or substitute for him. But more than substitute for him, we are
proud of Jack as being a Committee member of tremendous experience and
abilities. Jim did call and said that he got back from Europe but his foot was
still bothering him, and he had promised his family a bird-watching holiday.
In introducing Jack, I take a particular pride in the fact that he's a
Committee member and we are very proud of our Committee which includes as
one of our latest achievements Max Kampelman who will be our representative
at Madrid. Max was here for awhile yesterday but unfortunately couldn't stay for
the whole program.
Jack Marsh is a truly distinguished lawyer. He's a partner in the firm of
Mays, Valentine, Davenport, and Moore of Richmond, Virginia, and Washington,
D.C. He has practiced law for almost thirty years but has interrupted his private
practice for devoted service to his country. At the age of 19 he graduated
Infantry OCS and was a veteran of World War II. He's a retired Lt. Colonel who
insisted on graduating from the Army Parachute School and Jump Masters
School. He served four successive terms in the United States House of
Representatives and decided not to seek reelection in 1970. The Congressman
was an active member in many areas, but he should be recognized as the
introducer of the original legislation to establish the American Revolution
Bicentennial Commission. I know we were all thrilled by the tall ships and the
other events of that wonderful day. But on that memorable July 4, my thoughts
turned to Jack who fought a really long battle to create the Bicentennial
apparatus. He subsequently served as Assistant Secretary of Defense, then as
Assistant to Vice President Ford. When Mr. Ford became President, Jack was
appointed as a Counselor with Cabinet rank.
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In that connection, Jack had many important duties. I think the one that's
most important and most relevant to our work is that he chaired for the
President the Intelligence Coordinating Group which handled the intelligence
hearings; it conducted reorganization of the intelligence community. The
membership consisted of the Counsel of the President, the Director of the NSC,
the CIA, the Attorney General, Secretary of Defense, and Secretary of State.
And Jack served in that important and responsible post.
There is, however, a very personal story about Jack that really indicates the
character of this wonderful, wonderful man. Some years ago before he went to
Congress, we sat in a hotel in Washington one evening, concerned about the
destiny of the Nation, and Jack said, "Morry, I'm tired of all these talks and
conferences and seminars. I'm going to do something to get something done. I'm
going to run for Congress." Those of us who sat there just couldn't believe it but
he went ahead and did it and served for four terms. Subsequently, when he was
in the White House, he was nice enough to have me there one day and we were
having a visit and I said, "Jack, did you ever think back to that night when we sat
there and you said you were going to get something done? Did you ever believe
you'd be sitting here in this throne of power?" And he looked at me and he said,
"Morry, I've been thinking about that a lot." He said, "I really want to get
something done. I think I want to run for Congress again." If all of us, and I
mean it, if our government understood this great personal lesson and
governmental lesson, I'm sure we'd have the finest government in the world. I
give you my dear friend, my sole Committee member, who is a true son of
Virginia, and a lover of American history. Jack.
Honorable John 0. Marsh, Jr.
Standing Committee, ABA
Former Counselor to President Ford
Thank you very much, Morry, for that introduction. I'm very grateful to you.
You did not point out that four years before you graduated a child was born in
the valley of Virginia in Winchester.
I'd like to review for you some background and history and also point out
from a vantage point of having been a member of Congress dealing with the
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Executive Branch of government and with the intelligence community, and then
later having had Executive Branch responsibilities on that same subject, some of
the problems and considerations that cause us really today to discuss means, to
strike a balance in our society between the needs of national security and
individual liberties.
At about 3:00 A.M., on the morning of October 22, 1781, as the watchman in
Philadelphia walked his post, he was surprised to hear a horse moving at a fast
pace, thundering down the dirt streets of that city. The rider was one of
Washington's aides. Exhausted, barely able to stay in the saddle, he had ridden
from Yorktown three days before as a courier with a message from the
Commander-in-Chief to the President of the Continental Congress, Thomas
McKean.
He sighted the watchman and reined to a halt, seeking directions to
McKean's home. Before departing he disclosed the message he brought to
Philadelphia. Cornwallis had surrendered. The British Army in Virginia had been
captured. The watchman hurried down the streets calling in a sing-song voice,
"Past 3:00 o'clock, and Cornwallis is taken." Suddenly, the city of Philadelphia
was awakened to the news that the American Revolution appeared to be over.
The Colonies were independent.
I go back to this Revolutionary experience because the victory that occurred
at Yorktown in 1781, and was eventually capped by the Treaty of Paris in
January of 1783, ended a war where espionage and intelligence played a key part
in its prosecution and outcome.
From Concord Bridge to Yorktown--in the six years between these two great
events can be recited a litany of intelligence operations ranging from Vermont to
Georgia. These intelligence operations reached across the Atlantic to the
continent of Europe.
There were covert operations in which the French were participants. It was
a war of black propaganda in which Franklin excelled. It was a war of double
agents, covert operations, secret codes, and daring spies.
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These operations were so skillfully conducted by both the British and the
American operatives that to this day the identities of some of these intelligence
agents have not been established. They conducted operations, submitted written
reports on their activities, and were known to a few key Revolutionary figures.
For example, it is suspected there was an American agent in London at or near
the Cabinet level in the British Government. That agent has never been
identified. It was not until 1930 that a scholar examining the papers of the
British Commander, General Gage, would come across evidence in the General's
notes that conclusively proved a leading American patriot, Dr. Church, was
really a British agent.
Also, in the 1930s, an American researcher noted in examining records of
the Revolution a similarity in handwriting that he had seen on another document
in Massachusetts. By this historic detective work, this scholar established for
the first time the identity of the Chief of the highly effective Culper Ring which
was the name of Washington's espionage network for the New York-New England
area. That individual was Robert Townsend, a Quaker who operated in
Manhattan and who many of his fellow citizens believed was an officer in the
British Provincials.
The news of the victory that Washington's courier brought to Philadelphia
occurred as the end result of intense military action. It was climaxed by the
storming of Redoubt 10 in a night bayonet assault which was led by a 24-year old
Lt. Colonel on Washington's staff who was also Washington's French interpreter.
That officer was Alexandria Hamilton. But that assault on Redoubt 10 occurred
because of a highly dangerous but successful intelligence mission carried out a
short time before by an American soldier in Lafayette's command, Private
Charles Morgan, of a New Jersey light infantry battalion. It was vital the
British Army be kept on the York Peninsula which lies between the York and
James Rivers, until Washington and Rochambeau, who were in the North, could
join Lafayette and the other American troops in the South.
Lafayette sought volunteers from a New Jersey battalion to defect to
Cornwallis' Army. Morgan volunteered and was promised by his commanding
officer that, if he were executed as a spy, he would publish the true
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circumstances of his desertion in New Jersey. On this cheerful note, Morgan
deserted his unit, and was able to convince the British he was a genuine defector,
with information on the American plans.
Cornwallis was considering abandoning his position at Yorktown by crossing
the James and thereby escape the trap which was being laid. Cornwallis
interrogated Morgan who deceived them into believing Lafayette had a number
of small boats capable of crossing the James in a swift pursuit should Cornwallis
try to escape.
In Morgan's presence, Cornwallis indicated to his staff escape was not a good
plan. Sometime later, Morgan was able to slip away from his British unit. He
suddenly appeared at Lafayette's headquarters in the dress of a British soldier
and brought with him not only four British soldiers who he had convinced to
defect, but a Hessian sentry who tried to intercept them.
The sands of time had run out for Cornwallis. Washington and Rochambeau
had moved to Virginia. The French fleet was in the Chesapeake. It was now a
waiting game, and the hand was finally played out when the British band played
"The World Turned Upside Down" as a tune for the surrender ceremonies.
I make reference to these incidents in the American Revolution not only
because of the significance they played in the outcome of that struggle, but the
fact they show an historical precedent for intelligence operations in our own
government. They indicate a clear awareness by the Revolutionary leaders on
the vital role intelligence plays in national defense. There are many other
examples in the Revolutionary experience. These practices were accepted,
encouraged and refined. They were carried out with daring and skill. They were
sophisticated and complex. They were dangerous and the risks of severe
penalties including death were great, witness Nathan Hale.
Obviously, the Continental Congress was easier to deal with than the modern
Congress, and you were not likely to find Washington's Order of Battle printed in
the Williamsburg Gazette.
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As you are aware, the real chief and director of the American intelligence
operation was Washington. He performed that task with consummate skill. As
we know, he had been a Member of the Continental Congress and he served as
the Chairman of the Constitutional Convention. Many of his compatriots, both
on the military and the civilian side, had played a significant part in many
aspects of American intelligence operations ranging from Franklin to Jefferson
to Jay, who became the Chief Justice of the Supreme Court.
These Revolutionary leaders became the framers of the Constitution and the
sponsors of the Bill of Rights. When the Republic was established after eight
years of unsuccessful government under the Articles of Confederation, the
draftsmen of the Constitution must have remembered the Revolutionary
experience and anticipated in our national defense, the arts of intelligence would
be employed.
In the latter years of the twentieth century, as we move to the two
hundredth anniversary of the founding of the Republic, we are confronted with
the dilemma of need for national security, intelligence operations, and attendant
secrecy balanced against the institutions of an open and democratic society
founded on the corner-stone of individual liberty whose well springs are found in
the Declaration of Independence. It is a delicate but necessary balance. In
recent years, a power struggle of enormous proportions continues between the
Executive and Legislative Branches of our Government as the Congress seeks to
redress its power.
The later struggle is not new to the American system. Rather it is a
cyclical one, as, historically, Executive or Legislative power have ebbed and
flowed. For example, there were years of marked Congressional assertiveness
following the War Between the States, as there has been a marked Executive
assertiveness since the Depression years of the 1930s.
The Constitution is not express in establishing or defining a foreign
intelligence function in the Federal system. However, such a function has always
been considered a part of the Federal role and generally considered to flow from
the authority of the Republic to conduct relations and effect its national
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defense, a role with significant authority vested in the Congress and the
President.
The Constitutional authority also comes from the Article II, Powers of the
President, and includes his authority to conduct foreign affairs and importantly
his duties as Commander-in-Chief. It is clear in the latter role, his authority for
intelligence operations in a situation where war has been declared by Congress,
goes well beyond his power absent that condition.
The duties of the Legislative Branch to raise and support armies and to
provide for Defense, as well as the important appropriations role, have been
recognized through the years as a Charter for the Congress in this field. The
"necessary and proper clause" is a basis for legislative action inasmuch as it
contemplates the Congress has the authority to enact such laws as are necessary
and proper for the governance of the Nation. There are Court decisions and
legislative precedents that when taken together provide a considerable body of
legislative and judicial precedents.
However, in examining the Constitution and the conduct of foreign
intelligence operations, this must be considered in context of the whole
document. In this regard, the First and Fourth Amendments are of enormous
consequence. They are the bulwark of personal liberty. The freedom of speech,
assembly, petition, and security against unlawful search and seizure are the
bedrock of rights of a citizen of the Republic.
The First and Forth Amendments pose contrasting balances which are the
dilemma of the open society as it seeks to secure its own survival from predator
nations less inhibited by such Constitutional scruples, or concerns about the
unwarranted excesses of naked power. The present situation of our intelligence
community can only be appreciated in an historical context.
In the nineteenth century, safely behind our two ocean walls, and in a
wilderness world, safe from the intrigues of Europe and the wars of the
Continent, we did not establish an intelligence effort in the National
Government. This function, to the extent it was performed, in large measure
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was contained in the reports of diplomats or was relegated to the Army and Navy
as a classic part of their military function, but was not national in scope.
The importance of intelligence efforts surfaced in the War between the
States, but it developed nothing of permanence. An interesting historical foot-
note was the temporary employment of Pinkerton to carry out this function on
behalf of the Union.
It should be noted the Supreme Court decided in 1875, in Toten vs. the U.S.
(92 U.S. 105), arising out of the War, the President had the authority to hire a
secret agent for intelligence purposes during time of war.
World War I found us with no real improvement in our intelligence
capability. Even when war was declared on Germany in April 1917, there was
still no American intelligence unit. This became a cause for a young major in the
Army named Van Deman. However, the Major's efforts to convince the Chief of
Staff of the Army to form such a unit were repeatedly disapproved. In short, he
was told to drop it, and not approach the Secretary of War. However, Major Van
Deman was not a man to be put off. First, he informed a visiting novelist of the
inadequacies, and perhaps more resourcefully he found a secret ally. Aware that
the Chief of Police of the District of Columbia was a frequent breakfast guest of
the Secretary of War, he prevailed on the Chief of Police of the District of
Columbia to convince the Secretary of war to do something about this glaring
deficiency in America's preparedness. Secretary of War, Newton Baker,
responded from either one or both contacts and the Major was promoted to Lt.
Colonel and ordered to form an intelligence unit.
World War II is the genesis of the modern American intelligence community.
Pearl Harbor convinced us of its necessity.
Noting the example of allies and our enemies, we formed the O.S.S. for
military and paramilitary intelligence operations. This concern for a national
intelligence organization survived World War II. It is important to note there is
relatively little congressional authority for our intelligence organizations.
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The 1947 National Security Act established the Central Intelligence Agency;
however, it is not a precise and comprehensive charter as to mission,
responsibility and authority. With the exception of the last several years, there
has been relatively little legislation on the subject. An earlier statute gave a
special protection to what is called signals communications--a relatively narrow
area.
The classification system used in government for national security matters,
such as Top Secret, Secret, etc., is not a creature of statute, but an
administrative control mechanism, for the Executive Branch. There is no charter
or statutory authorization for the FBI's role in counterintelligence. The National
Security Agency is a product of an Executive Order.
What is not understood is that by-and-large the American intelligence
community has been created by a series of Executive Orders. Most of these
Executive Orders were highly classified.
For security purposes, there has been a fragmentation of the intelligence
effort with significant pieces found in the Central Intelligence Agency, the
National Security Agency, various Department of Defense, the National Security
Council, Treasury, Justice and the Intelligence Oversight Board.
A major issue for President Ford in 1974 and 1975 in his efforts to reform
and reorganize the intelligence community was whether to endorse statutory
charters as opposed to Executive Orders, and whether Executive Orders were to
be classified or unclassified. In an historic decision, President Ford on February
18, 1976 issued Executive Order 11905 which for the first time publicly
recognized various components of the American intelligence community and in
broad guidelines set forth their authority, and mission, as well as spelled out
certain safeguards to their operations. The backgound factors bringing
President Ford to this decision are important.
The winds of change for the intelligence community began to blow in the
middle sixties. Prior to that time, the Executive Branch had had almost a carte
blanche relationship with Congress. The major function of appropriations was
controlled by literally a handful of legislators in the House and Senate.
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Powerful committee chairmen and bi-partisan congressional leaders could be
counted on to obtain Committee approval and provide swollen majorities on the
floor, with a minimum of assurances and sparse answers to the few questions that
were asked about intelligence programs.
By mutual agreement, reporting to congressional leaders intelligence was
confined to several people and this was not in great detail. Often it was after
the fact with interim status reports. There's no question they could have known
more, but there was an attitude that it was best not to know. This dimension of
congressional desire for minimum knowledge of intelligence operations cannot be
over looked.
This method of congressional oversight would come under serious attack in
the 1970s.
But there were other factors that would lead to the intelligence crisis of the
1970 s:
-- New Technology, particularly in the field of electronic collection,
including microwave interception. Electronic chip microphones, laser
devices, new techniques in telephone interception and improved photography
monitoring are but a few. These new technologies became the tools of the
trade in the twilight world of espionage and covert operations. They are not
exclusive American tools. They are being used against Americans by our
friends and our adversaries not only abroad but here at home.
-- Improved communications in trade and personal exchanges nationally
and internationally lend themselves to exploitation for intelligence purposes.
Transmittal of diagrams, charts and blue prints through facsimile processes
became targets of opportunity for interception.
-- New generation computer capabilities went hand-in-hand with an
information explosion and became capable of compiling for rapid recovery
mountains of information on a person ranging from health records to credit
status, military service and employment data.
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Two statutes became of consequence. They were in part citizen
protests about Big Government meddling in their lives. They have created a
problem for our intelligence community. I refer to the Privacy Act and the
Freedom of Information Act. These two statutes must be viewed not simply
from what they require or the rights they give, but what they represent.
Although their adverse consequences go well beyond intent, their existence
is a guidepost of concern to the intelligence community.
-- Court decisions--In the last two decades the Courts, particularly in the
domestic and criminal fields, have sharply limited the parameters of
telephone interception.
-- There have been other legislative developments such as the Safe Streets
Act of 1968, the scope of which although largely in the domestic criminal
field, does become cautionary from a foreign intelligence standpoint. The
Foreign Intelligence Surveillance Act of 1978 which addresses the use of
electronic surveillance to obtain foreign intelligence information is another
significant legislative action by the Congress.
-- The Vietnam War--Whether you are a dove or a hawk, and I was a hawk,
it must be recognized that this war ripped the fabric of American society.
The years of protest and debate would enbroil the American intelligence
community. It was an involvement that ultimately exacted an enormous
price.
-- Watergate--The casualties of this catastrophe went for beyond the
President and the President's men. It led to one of the most difficult and
exhaustive series of congressional hearings any Executive Branch has ever
sustained. A Secretary of State was threatened with a congressional
contempt action, and the Legislative Branch nearly collided with the
President in a confrontation over issues that would have raised profound
Constitutional questions for the Courts to resolve. The intelligence agencies
were subjected to one of the longest, most sustained and grueling
examinations in the country's history. Some argue at a price of impairing
their effectiveness.
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The fact the Congress was in the majority of another party, with the
Executive Branch headed by a minority president, contributed to the ability
of the Congress to pursue their investigative thrust.
Using the appropriations process and spending limitations which were so
successful in winding down the Vietnam War, the Congress limited in 1974
covert operations by the Hughes-Ryan Amendment. Later they denied
funding for covert operations in Angola, ironically, a limitation that was just
lifted this week by the Senate.
To those who hail this new congressional era of involvement in the
intelligence activities, there are caveats. First, there is the risk of breaking
down compartmentalization by the collection in one place of various
components of intelligence data which for security purposes are widely
disbursed so that no single person is aware of all of the sources, methods or
data involved.
Second, there is a danger of disclosure of sources and methods not by
design but through inadvertence, carelessness or over-exposure, By sources
and methods I refer to the names of individuals who cooperate with our
agents, and by methods I refer to collection devices or techniques whereby
certain information is obtained.
There has been a proliferation of the committees to whom sensitive
operations must be reported. Some eight in all in both House and Senate.
However, steps are underway to try to limit this disclosure.
With Congress involved, there will follow legislative responsiblitiy and
accountability for mistakes and failures. These mistakes will be inevitable.
However, accountability for them is a burden a Member of Congress may not
want to assume.
-- Lack of disipline for the errant member is a problem. Under the Speech
and Debate Clause of the Constitution, a member has immunity for what he
might say on the floor of the House or the Senate. This raises problems for
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the intelligence community in a situation where a single member may feel so
strongly as a matter of conscience against an operation in which he is
briefed as to make a disclosure on the floor. This presents a situation where
only the Congress can discipline its members. It is essential that the
Congress establish its own rules in reference to disclosure. Rules which it
enforces. Rule I I of the House Rules has been a concern because in effect
it says that any member of the House can be privy to any information made
available to another member.
To those of us who think some of these concerns I mentioned are
strained, I can assure you that in handling the President's relations with the
Congress involving the intelligence investigation, each of the points I
mentioned became questions of real concern.
You cannot overlook the fact that a privileged and highly sensitive
report of a Select Committee of the Congress, general publication and
distribution of which was expressly prohibited by a majority vote of the full
House, was published in full in the Village Voice.
The doctrine of Executive Privilege came under severe attack with
consequent erosion and more narrow interpretation of its application. The
extent to which documents can be withheld from Congress has been sharply
challenged.
In considering the role of intelligence operations in America, we must
continually inject a note of realism. From a national investment standpoint, it is
one of the least expensive methods of defense. In the decade ahead, we must
have more, not less, foreign intelligence capability.
There is turbulence in the Third World. There we seek political stability
with a system of government that provides their citizens individual freedom and
economic well-being. It also is an area to which our future is linked by raw
materials and resources vital to the Western economy. It behooves us to know
what is happening there.
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Soviet military power continues to grow both quantitatively and
qualitatively. It is being extended to the four corners of the globe. A blue
water navy takes the hammer and sickle into ports where it has never been
seen. Soviet secret police and the NKVD, the agents of their intelligence
apparatus, have no problems in obtaining official "cover" and no qualms
about their targets for surveillance, regardless of their citizenship or where
or how they are surveilled.
-- Economic intelligence concerning the movement of grains, oil, ores,
machinery, petro-dollars, crop yields--this is a new field for collection and
evaluation of data. This is becoming as important as the location of missiles
and submarines. However, it raises a new host of problems in reference to
the collection process.
The role of Congress in the intelligence process will continue to change.
Because of the vast scope of legislative affairs, Congress is likely to add to its
oversight role that of a consumer seeking vital intelligence data to support
legislative enactment. This will require a new cooperation and different
standards and safeguards between the two branches. One that is not adversary in
nature.
-- Terrorism is a frightening phenomenon of our era. It is the type
violence that may escalate into broad conflicts. Knowledge of the terrorist,
his methods, his targets, his sancturaries is essential not just because it
produces stability but to preclude the suffering and misery that accompanies
the terrorist's attacks.
What is the role of the Bar in all of this?
The role of the Bar is leadership in an area in which it has vested interest.
To provide that leadership, the Bar must be informed and it must be educated on
the issues.
In reference to charters and defining the intelligence operations of the
national government, Chief Justice Marshall observed that "Congress,
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unquestionably, may prescribe the mode" through which executive power is
exercised. It is up to the Executive Branch to develop the method and
procedures within that mode that strikes an acceptable balance in a free society
between national security issues and individual liberties. This will require the
rule of law and the collective wisdom of the Bar.
The Bar must understand the realities of world power situations that create
the need. From the standpoint of intelligence, the Bar must study the
Constitution, particularly Article I and Article II provisions that relate to the
mutual role of the President and the Congress, and the conduct of national
defense and foreign affairs. This must be done in the context of the First and
Fourth Amendments in order to establish their parameters as part of the
"prescribed mode."
The Bar must stake out its position and become an advocate and defender of
its handiwork. It must direct its voice
-- to the Executive Branch;
-- to the Congress;
-- to the Bar;
-- and, most importantly, to the people of the United States.
In less than a decade, we shall observe the two hundredth anniversary of the
founding of the Republic. At a point in the deliberations of the Constitutional
Convention, when all was in disarray, Washington assigned to the delegates their
task with this charge: "Let us raise a standard to which the wise and honest can
repair. The event is in the hands of God."
In the troubled days ahead, the Bar, which bears a special trust for the
protection and perpetuation of that great document must raise a standard in this
field, vital to our national survival.
Morris Leibman
Thank you very much, Jack. You know, it's easy to be Chairman of the
Committee when you've got this kind of support. In the audience, I want you to
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know, Dick Ham was the correcter of the Van Deman thing. Dick's a long-time
member of our Committee and now serves on the Advisory Committee as Jack
referred to Team A and Team B. Bob Galvin's been with us since last night, and
we'll look to his wise thoughts on his experience in PFIAB. As Jack mentioned
electronics, I find that the more I hear about this thing, the more I realize that it
cuts through all kinds of legal concepts and legal segments that we used to have,
and it's a brave new world out there.
In describing the Committee's work, I told you about how fortunate we were
to have the benefit of people like Ray Waldmann, Nino Scalia, and Mike
Uhlmann, and in the work that we've done. In recent weeks and recent months,
we had a number of our experts work intensively on the FBI Charter legislation
and the Graymail legislation. Our efforts were reflected in the report of the
House of Delegates and the resolutions adopted by the House. The Committee
conducted a major workshop you heard about and is now, and you'll hear later
about this from Ray, sponsoring a specific research project at Yale. The
newsletter, for which Ray is Editor and of which Florence Bank is Associate
Editor, has been a total success and a real contribution.
For many months Ray has also had a special task force that's devoting itself
to the CIA charter legislation. That major report, which has had some
circulation already, is continuously reviewed by the Committee and its experts
and will be available for study by all. It's a monumental job and a great start in
the area. Also, our experts are considering the various Executive Order
possibilities, a reinstitution of PFIAB, for example, other quick fix steps that
could be done beyond legislation, and I am sure Waldmann, Scalia, and the others
will have something to say about that during the course of these discussions.
It's now going to be my privilege to turn the meeting over to my good friend,
Ray Waldmann. Ray is a practicing lawyer, when he has time left over from his
work here, with the wonderful firm of Schiff, Hardin and Waite in Washington
and Chicago and was, as Jack told you, one of his great aids in the White House
work on the entire intelligence community.
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1. OVERVIEW OF INTELLIGENCE CHARTERS
Moderator: Mr. Raymond J. Waldmann
Intelligence Consultant, ABA
Standing Committee,
Former Special Counsel for
Intelligence to President Ford
When we thought about planning this conference we looked at the subjects
that have been discussed in recent months and years in the area of intelligence
legislation, and the common thread running through all of those efforts seemed
to be the determination, as Dean Casper put it, of a new framework for
intelligence activities. Looking further, it was apparent that one of the main
purposes of these legislative proposals was to define in new ways the relationship
between the intelligence community and some of its publics. One of those
publics is obviously the Congress and so we decided to have a panel which would
look at the subject of congressional oversight and the relationship between the
community and Congress.
Another public has developed over the last few years in a way which Ken
Bass explained, I think, brilliantly at our December conference, and that is the
Judiciary. The law has become more involved in intelligence and intelligence
perforce has become subject to the rule of law in ways which are novel. And this
brings with it a role for the Judiciary. So we decided we would look at the limits
of that role and the appropriate nature of that relationship.
And finally, of course, there is the public itself. That relationship concerns
the public's need to know and the concomitant responsibility of the intelligence
community to operate in ways which are secret, efficient, and effective. We are
not looking in this conference at internal organizational issues of the intelligence
community or the relationship of the intelligence agencies to one another. Those
were addressed in the Executive Order to which Jack referred. They were
addressed in President Carter's own Executive Order and we will hear a little bit
about them from Ken today in terms of the overview.
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Our first panel this morning is a view in more detail of some of the things
which Jack touched on in his keynote address. We will first hear about the
history of the charter legislation effort. We will then hear about the relationship
of charter guidelines and other legislation to existing Executive Orders,
Executive Guidelines and Procedures, and finally we will hear about alternatives
to the current legislative approaches which might lead in the direction of
improving the effectiveness of the intelligence community.
We will have three presentations and then there will be time for questions
and answers before the next panel begins. Our first speaker comes to us from
the Senate Intelligence Committee. He is Mr. William Miller, the Staff Director,
who was educated at Williams, Oxford, and Harvard. He taught at Harvard
before joining the Foreign Service where he served in the Middle East and in Iran,
among other places. And you may recall, a few months ago in the first days of
the Iranian hostage-taking, Mr. Miller was asked by the President to attempt to
negotiate a solution on the basis of his experience and knowledge of the
situation.
Mr. Miller served as a member of the delegation to the United Nations
General Assembly and as a delegate to NATO meetings. He headed the staff of
the Church Committee review of the intelligence agencies, and then became the
first and only Director of the Senate Select Committee on Intelligence staff.
With great pleasure, I give you Bill Miller.
William G. Miller
Staff Director, Senate Select
Committee on Intelligence
It's a pleasure to participate in this Bar Association and University of
Chicago Conference on Intelligence Legislation. It's a very special pleasure for
me to see the Law School under the aegis of my good friend Gerhard Casper who
has been a great source of knowledge and inspiration to many of us who have
worked on these very difficult questions. I was very pleased to hear the
structure that he placed on this whole subject. I think he describes very
accurately the informing principle that we really are seeking a legislative
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framework for an area of governmental activity that has long existed outside of
our constitutional system.
There is, of course, no mention in the Constitution of intelligence activities,
even though intelligencers and intelligence is as old as mankind itself. No doubt
intelligence is a part of the human condition. But despite that, there is no
mention of an intelligence system in the Constitution. Nor, indeed, is there any
consideration of how secret activities on the part of the government would be
governed. The Constitution does not deal with secret information, the hearing of
secret evidence in the courts, or indeed the protection of secrets. There's a
great deal of inferential suggestion, a lot of it stemming from the idea that
espionage and intelligence is part of its human condition, but it is not in the
Constitution. The framers of the Constitution had no conception, although they
were practitioners, of the future role that a permanent intelligence system would
have in the conduct of our government. And because of that intelligence gap, or
secrecy gap, of necessity the approach taken by those of us who have been
charged with coming up with a way to provide for the governance of intelligence
activities is to try and create through statute analogies to the constitutional
framework that have already been provided. So this is the basic premise on
which the so-called intelligence statutory charter effort has been structured;
namely, the belief that intelligence activities can be brought into the broad
constitutional framework. We believe this must be done because the funda-
mental issue involved concerns the use and control of great power. It is clear
from the experience of the past forty years, and this is the period in which the
United States has had a large and pervasive intelligence system, that the various
aspects of intelligence activities constitute an important, vital, and certainly
awesome power in the hands of those who exercise it, and who have access to its
means and to its results.
The application of power involved a range of activities, as we all know,
from subtle analyses of complex information obtained from a variety of sources,
some very primitive in their method of acquisition and as old as man itself, other
methods most sophisticated, the kind of thing that Mr. Leibman referred to, the
new frontiers of electronic technology. They also involve predictions of the
future to some extent, so that foreign policy and defense can be planned, and
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they may involve paramilitary activities or all-out warfare. In order to channel
the broad range of power that intelligence can convey, the charter effort has
directed its attention to providing first the authorities for the exercise of power
by the various intelligence agencies. By and large, the effort over the past four
years has resulted in an agreement that has been worked out jointly between the
practitioners of intelligence in the various intelligence departments and agencies
and the leaders of several administrations, including Jack Marsh who spoke so
well just a few minutes ago, and the Legislature on the broad scope of missions,
duties, and purposes of intelligence.
The broad purpose of intelligence for the United States is contained in the
latest version of the charter, and I'd like to read that because it's a brief
statement of what all this effort is for. First, to authorize the intelligence
activities necessary for the conduct of foreign relations and the protection of the
national security of the United States; to ensure that the intelligence activities
of the United States are conducted in a manner consistent with United States
defense and foreign policy interests and are properly and effectively directed,
regulated, coordinated, and administered; and to ensure that the government of
the United States is provided in the most efficient manner with accurate,
relevant, and timely information and analysis so that sound and informed
decisions may be made by both branches regarding the security and vital
interests of the United States. And so that the United States may be protected
against foreign intelligence activities, terrorist activities, and other forms of
hostile action by foreign powers, organizations, or their agents or by inter-
national terrorists directed against the United States. And finally, to ensure that
the entities of the intelligence community are accountable to the President, the
Congress, and the people of the United States, and that the intelligence
activities of the United States are conducted in a manner consistent with the
Constitution and the laws of the United States. "That's the essence of the
charter effort. It is not a crude list of "dos" and "don'ts." It is aimed at
embracing this vital, integral part of our national security activity into our
constitutional system.
In addition to agreeing upon what intelligence should be asked to do for the
United States, the intelligence agencies, two successive administrations, and the
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Legislature have come to an agreement on the nature and structure of the
various entities that make up the intelligence community. There was a great
turf battle in recent years about who would control this or that entity.
Fortunately, those issues have been resolved for the time being. These kinds of
issues will arise in the future; they will be settled in bureaucratic battles. As in
the past, the strongest lance wi I I occupy the most turf. Usually the Commander-
in-Chief decides who will be given the strongest lance.
There's a recognition then that from time to time it may be necessary to
modify that structure and we have suggested a legislative means to make those
changes. But clearly the most difficult and controversial areas that remain to be
resolved concern those activities which by their nature might adversely affect or
might infringe in some way on the rights of Americans guaranteed by the
Constitution. There's a recognition that the necessity to protect the nation from
great harm or danger might from time to time come into conflict with the
guarantees of the Constitution protecting individual citizens. The circumstances
when the needs of the State should override the protection of individuals remain
the area of greatest controversy. But progress has been made through the
following approach. In our view, the Fourth Amendment provides an appropriate
analogy for dealing with these questions. We have established (and when I say
"we," it's both branches) the presumption that it is the primary duty of the
intelligence agencies to protect the rights of citizens and, of course, groups.
However, the facts and circumstances of some issue may be such, and the need
to defend the State may be of such gravity that a right must be set aside. There
are paths to follow here. One is to require the application for something
analogous to a warrant, to an appropriate body details the facts and
circumstances requiring that a protection be set aside. The key elements are a
certification of necessity for so doing, accompanied by the reasons for setting it
aside, the ability to review such a certification by an appropriate body; in some
cases the court; in other cases, the intelligence oversight committees; in still
other cases, internal oversight bodies.
Another approach is also under consideration now. It would grant that there
may be rare extraordinary cases which would require the assertion of
constitutional authority by the President in order to defend the nation against
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grave foreign dangers. A statutory endorsement of that power is, of course,
unnecessary. But whatever approach, or combination of approaches, is adopted,
the principle is the presumption of protection of individual rights, the
requirement for high level certification of necessity, the requirement for a paper
trail of accountability, and review by appropriate bodies outside of the Executive
Branch. I think, by and large, these have been accepted as a valid way to go.
This is a significant advance, in my view, after four years of negotiation with
two Presidents, several Attorneys General, several Secretaries of State, National
Security Advisers, a whole turnover of intelligence agency heads, and other
officials of distinction and experience, and of course with the oversight
committees; and the burden of going through, in these four years, mountains of
drafts ranging in size from 300 pages to 65 and, in one case, to 4 pages; hundreds
of meetings at all levels; fourteen meetings with the President, for example; and
you multiply that number up as the rank goes down.
The duties, authorities, and the protections required in the governing statute
affecting the activities of agents, and of agencies that employ tens of thousands
of people, that cost many billions of dollars annually, have been tested against
the projected from the actual practice of the intelligence agencies. They have
profited from the actual efficacy of the Executive Orders 11905 and 12036 that
were jointly drafted by the Executive and the Legislature. This is a unique
phenomenon. The governing Executive Orders for intelligence were drafted
jointly by the Legislature and the Executive, even though they're issued by the
President. The pattern, established by Jack Marsh of involving all the key
parties, has been a marvelous precedent. Our Committee was heavily involved in
the drafting of the superseding order, Executive Order 12036, and it's proved to
be a great aid in furthering the whole process of working towards a nonpartisan
consensus solution. But, as members of this conference know, the legislative
charter effort has been set aside and put on the shelf until the elections have
been completed, and that's for obvious reasons. It's our expectation, however,
that with the convening of the new Congress, the charter legislation effort will
proceed forward for action.
What we seek to do in the beginning of the next session is to provide an
affirmative legislative standard for the intelligence activities of the United
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States in order to fulfill the expectations that the Congress and people of the
country have that the legislation to provide the means for the best possible
intelligence system with necessary organizational flexibility will, in fact, be
enacted. We also wish to provide explicit, legal authority for what had been
agreed upon as necessary clandestine activities. The FBI and other agencies do
not now have express legal authority to carry out counterintelligence and other
necessary intelligence activities. Further, high risk clandestine activities
(including covert action, or what are now called "special activities" because of
their potentially great risks, expenditures, because of the resources sometimes
required, and of course because of the particularly grave consequences involved),
demand carefully balanced legislation to assure that such special activities are
undertaken only after due deliberation and rigorous evaluation of the risks and
benefits to the Nation's well-being.
Standards also need to be set in statute for the activities that affect the
rights of Americans, but basically in two areas: the exercise of the counter-
intelligence function and the collection of foreign intelligence information. I
have spoken of the agenda that remainded. But how far have we come? We have
proceeded thus far in an effort to achieve a nonpartisan consensus. We have
sought to follow insofar as possible the framework of the Constitution, in some
cases by analogy. And we have learned over the four years of effort to
encompass a very wide spectrum of views, the requirement to sift through vast
mountains of draft language, and the entanglements of very complicated
provisions in Executive Orders, and of course the directives. From all of this, we
have learned to eliminate unnecessary detail. The difficulty of passing even one
provision has proven that a statute will not be passed if it is overly complicated.
But it's our hope and expectation that we'll be able to achieve a consensus that
will provide a clear and simple formula of guidance, flexibility, accountability,
and protection.
What's been accomplished so far? We provided interim governance through
Executive Orders. A surveillance act for domestic wiretaps in foreign
intelligence matters has been provided; this has proven to be a very effective
instrument and perhaps provides some guidelines for resolving the issues that
affect the rights of Americans that remain. Both houses want fully empowered
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permanent oversight committees, and they've worked together to see that that
will take place. On June 3, the Senate passed by a vote of 89 to I the
Intelligence Oversight Act of 1980. The House Intelligence Committee has just
reported out a similar measure. The purpose of the Oversight Act of 1980 was to
provide the framework of checks and balances and shared responsibility
necessary for the exercise of effective oversight of the intelligence agencies in
the United States. The language of the bill was worked out in close consultation
with the Executive Branch. Every word has been agreed to by the Executive
Branch. The process of consultation included the President himself, the Vice
President, his chief advisers (many of the people in this room). The language of
the report explaining the purposes of the Act was written jointly, every single
word. There are still a few minor issues that remain and will be resolved. Both
sides have agreed to work it out, and it's not beyond their ability to do so.
We're seeking to meet the standard called for by James Madison who, in his
discussions concerning the separation of powers and checks and balances said,
"We are seeking to provide a sufficient guard against those encroachments which
lead to a tyrannical concentration of all the powers of government in the same
hands." We seek to do this by enabling the respective branches, "to be so far
connected and blended as to give each a constitutional control over the others."
I'd like to close by saying that the effort to legislate an effective means of
oversight for secret intelligence activities that will serve as a constitutional
means of checks and balances, and shared responsibility, has, not unexpectedly,
met with resistance along the way. It has not been easy, and it's understandable
that the problems that arise in framing authority for effective oversight and
involve the interaction of powers conferred by the Constitution of the respective
branches will create controversy. But, in almost every case that we've come
across, the powers and duties of the two branches come into contact; they
sometimes collide, and on rare occasions they are in confrontation. But,
recognizing this, we have sought to respect the authorities, the powers, the
duties and obligations of both branches; to look at it from the other branches'
point of view, and to devise ways in which solutions can be obtained rather than
create the certainty of confrontations. One can draft laws in a way that assures
confrontation; what we're trying to do is to draft words which will lead to
solutions.
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Working under authorities very similar to those contained in the Intelligence
Oversight Act of 1980 has been the pattern of the past four years. The Senate
and House Committees have been able to carry out their duties with full access
to information. When the Committees have requested information, it has been
supplied, and in almost every case, in the degree of detail requested. One mark
of the success of this joint aspect of oversight is the fact that in the four years
of the Committee's existence, we have yet to have had even to suggest a
subpoena. We have been able to work out difficulties through negotiation. It's
therefore imperative to assure that this proven means to work out solutions
becomes law, because we know in the area of intelligence we are going to have
difficulties and disputes down the road. Clearly, the law has to be framed in
such a way to encourage negotiation and resolution of disputes between the
branches.
A recent court case--United States v. American Telephone--which was
decided in 1977, is, in essence, the approach that the Committee has taken to
deal with conflicts of authority that might arise. There are many instances in
that case that apply to the issue of intelligence oversight. I'd like to quote two
passages from it, because I think they are models of constitutional reasoning and
have a tone that sounds very much like Madison to me. The first passage is, "The
framers, rather than attempting to define and allocate all governmental power in
minute detail, rely, we believe, on the expectation that where conflicts of scope
of authority arose between the coordinate branches a spirit of dynamic
compromise would promote resolution of the dispute in the manner most likely to
result in the efficient functioning of our governmental system. Under this view
the coordinate branches do not exist in an exclusively adversary relationship to
one another when a conflict in authority arises. Rather, each branch should take
cognizance of an implicit constitutional mandate to seek accommodation through
a realistic evaluation of the needs of the conflicting branches in the particular
fact situation. This aspect of our constitutional scheme avoids the mischief of
polarization of disputes." In my view when you're forced to a subpoena, you have
failed.
Another passage of relevance, "The course of negotiations reflects some-
thing of greater moment than the mere degree to which ordinary parties are
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willing to compromise. Given our perception that it was a deliberate feature of
the constitutional scheme to leave the allocation of powers unclear in certain
situations, the resolution of conflict between the coordinate branches in these
situations must be regarded as an opportunity for a constructive modus vivendi
which positively promotes the functioning of our system. The Constitution
contemplates such accommodation. Negotiation between the two branches
should thus be viewed as a dynamic process affirmatively furthering the
constitutional scheme." The language of the Oversight Act was written with
these thoughts in mind to try and avoid the mischief of polarization of disputes
and to create the most favorable circumstances for working out conflicts.
I'd like to express a note of gratitude to Mr. Leibman, to the members of the
Bar Association, and to the members of the faculty of the University of Chicago
for sharing their learning, wisdom, and advice during the past four or five years.
Their words are reflected in the drafts, the mountains of material, and I hope a
few of the words that will pass. Speaking for myself, despite the frustrations
that are involved in a process like this, and at times they're unbelievably
difficult, I can think of no greater privilege than to have had the opportunity to
work on such a fundamental constitutional question. Thank you.
Raymond Waldmann
Thank you very much, Bill. It was an excellent presentation of the
legislative perspective. I might mention in passing that copies of the full text of
the Huddleston bill, S. 2284, as introduced, are available in Classroom Two along
with the other materials, and the Intelligence Oversight Act of 1980, as passed
by the Senate, is found in the most recent newsletter of our Committee. Copies
are available outside.
We'll now turn to a spokesman from the Executive Branch, Mr. Ken Bass,
who is Counsel for Intelligence Policy at the Department of Justice. Ken is a
graduate of Duke University and Yale Law School. He clerked for Justice Black
after finishing his legal studies. He worked on the Hill, in private practice in
Washington, and then in September of 1977 joined the Department of Justice, I
believe, in the Office of Legal Counsel. In May of 1979, he became the first
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Counsel for Intelligence Policy in the Department of Justice and thus is
intimately involved in the negotiations and the deliberations to which Mr. Miller
referred. I give you Ken Bass.
Mr. Kenneth C. Bass, III
Counsel for Intelligence Policy
Department of Justice
Thank you. It's a pleasure to be with many of you again and some of you for
the first time, I hope not the last time, to discuss these issues. Jack Marsh gave
us an excellent overview of the history of the profession of intelligence. I want
to give a short overview of the history of intelligence law. From my private
practice experience and my limited but full-time government experience over
the past few years, I've come to recognize that intelligence law is clearly a
growth industry insofar as lawyers are concerned. And there's some striking
parallels between what we're experiencing now and what we experienced when
intelligence law in the United States had its beginnings in 1947.
The first intelligence law, the National Security Act of 1947, was driven by
what was perceived as an intelligence failure--Pearl Harbor--the absence of
warning. It led to a statute with a good deal of conscious ambiguity as to roles,
powers, and authorizations, but a basic congressional recognition, embodiment,
and endorsement of the fact that there would be a permanent intelligence
structure in the United States. It was not simply a wartime reaction to tactical
problems, but it was continuing in the world as we would see it.
Our current charter effort and the exponential growth of law in the area is
driven by what I think was perceived as the second intelligence failure, a failure
of the intelligence community to recognize where the lines were between
collection of foreign intelligence and political rights of Americans. It's
important that we not lose sight of the fact that that failure was not by any
means unique to the intelligence community. It reflected a failure of the
American governmental system, if you will--congressional, executive, and
judicial--to deal with the problems of the Vietnam War and the domestic
opposition to that war. The intelligence community was not the only rogue
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elephant running around, as some saw, trampling on Americans' rights. Exactly
the same thing happened to the IRS; exactly the same thing happened to the
Justice Department. There were prosecutions initiated for what some saw as
political motivations. And there were strains in the system. There were
pressures that pushed well-meaning governmental officials to do things that in
hindsight and in the light of full exposure appeared to be wrong and needed
correction.
In other areas of failure as a result of the crisis of the war, we really haven't
moved for charters; we haven't moved for reforms; we haven't moved for
legislation. Why is it then that in intelligence we have? I think for a number of
reasons. One is that the shock was greater in the intelligence area because less
was known about it, and once exposed (and properly so and constructively so), it
led to a stronger reaction towards establishing a rule of law. The second is that
there was a paucity of law, if you will, and a paucity of congressional, formal
acknowledgment of the role of intelligence, the purposes of intelligence, and the
balance between rights of Americans and the foreign intelligence process.
So what we saw since the Church Committee Reports was an exponential
growth curve in intelligence law, started by what still remains as the cornerstone
of the whole area of administrative law, and that is President Ford's Executive
Order on which Jack and others worked so extensively, that Attorney General
Levi worked so extensively on, and that Nino Scalia was a driving force behind.
It basically set the key principles in terms of rights of Americans and
intelligence activities. It remained at the core of Executive Order 12036 and it
remains as the driving principle behind the now increasing volume of Executive
Branch regulations that are on top of 12036.
This growth of law has taken the form of something that is not common in
the American legal process. And it is an increasingly complex volume of
Executive Branch regulations that do not start from a statute, but start from, as
Bill has described, joint Executive Orders developed with parts of Congress but
not with the totality of Congress. Most federal administrative regulations follow
after Congress has identified a problem, passed a statute, maybe created an
agency like the FTC, or the SEC, and given some basic general guidance that has
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to be filled in interstitially with Executive rule making. That's not true here.
There's another aspect in which this area of the law, from my perspective,
differs from most areas that I've ever had anything to do with as a lawyer. Law
traditionally in our system when it comes to legislation or rule making has been
the end of the process, not the beginning of the process. We seem to have turned
it upside down in the intelligence world. We are proceeding on a theory of
instant wisdom and have injected an awful lot of legal thinking and legal drafting
into a process at a comparatively early point in the resolution of the problems in
that process. Think for a moment and compare what we're doing in the
intelligence world with the growth of common law in the civil law area towards
contracts or anything of that nature. The common law started off centuries ago
as conflict resolution on a case-by-case basis going to some form of adjudicator,
be it a parish priest, the head of the estate, or some official in power who was
neutral and could by force of either persuasion or monetary wealth or physical
arms resolve an issue. That process continued through case-by-case judicial
decisionmaking over centuries. Eventually we wound up with some inconsis-
tencies in decisions and people realized that it wasn't done in northern England
the some way it was done in southern England and that didn't make good sense
because they were all good Englishmen. So Parliament would come in and pass a
statute to resolve the differences and to make sure that the rule of law applied
even-handedly to everyone. But in intelligence law we don't have that. We don't
have any tradition of case-by-case adjudication of controversies with the
freedom and the creativity of the common law, the trial and error method of
going through and trying it, and getting a lot of different decision makers
focusing on what over the centuries become the same sets of facts and then
seeing where wisdom lies.
Instead, we were forced by the crisis of the Vietnam War, Watergate,
COINTELPRO, CHAOS, and all of the words that have become so common to us
in designing a system immediately to meet a very real problem. And we're still
struggling to get that system in place.
In the development of the law in the area we have almost, but not quite,
completed the current phase of Executive Branch rule making with congressional
input--12036 and its predecessor 11905--Executive Orders have been on the books
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now for four years. The Executive Order of President Carter required
promulgation of rules designed to ensure that intelligence activities could
function with an appropriate balance between national security needs and civil
liberties, privacy interests. The first edition of those rules has been completed
for all of the agencies. We're now working on the second edition. At least with
the FBI, it seems to go in two-year cycles. Attorney General Levi put out his
rules and regulations for the FBI in 1976. Judge Bell added a few and put out his
version in 1978; and Attorney General Civiletti put out his version in 1980, so I
guess we're due for a fourth round in another two years. And that part of the
process has been very difficult; trying to come up with words that are
meaningful, that have content, but that allow for sufficient adjustment that we
don't wind up shooting ourselves in the foot on either side of the issue as we do
The growth phase that we're into now is one of interpretation, adjudication,
and application of those rules to specific fact circumstances and seeing whether
its right, wrong, whether we made a mistake, whether we need changes, and
trying to keep sight of the basic principles, the First and Fourth Amendment
values that underlie all of the rules.
Where do intelligence charters come in? I think they come in in a way
which, while it is framework legislation as Dean Casper mentioned, it is also
something that isn't unique but is comparatively rare in the American legislative
process. It is vital from my perspective that Congress pass comprehensive
intelligence charters to ratify, to legitimate the intelligence process and to get
the second great intelligence failure behind us so that we can all get on with the
job and not continually argue about basic right and wrong issues. If you look at
other intelligence law and Congress' role, I think we've seen the Congress has
performed precisely that function in two pieces of legislation--the Safe Streets
Act in 1968, and the Foreign Intelligence Surveillance Act in 1978. Both of those
laws not only created a legal structure and a new judicial involvement in
previously Executive Branch areas; they also expressed a popular democratic
consensus that electronic surveillance was right in certain cases, that there was
a balance that could be struck, and that it was lawful. And the very difficult
contentious debates that properly were engaged in for decades about wiretapping
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largely have gone behind us in the national security electronics surveillance field.
The intelligence charter process can and must do the some thing for certain
issues that are not behind us yet; we're still in the midst of them. One of them is
the one that Bill referred to in terms of the Executive-- congressional balance--
the information-sharing problems. How do we appropriately set up under a rule
of law, a system that guarantees that Congress can, without forcing itself and
the Executive to the wall, get the information that is needed to inform itself to
participate in this important secret function? And how can we at the same time
maintain the necessary compartmentation, security secrecy, sources and methods
protection that ensures that we get the information in the first place so that we
can share it? They are difficult problems, but I agree with Bill; they're not
insolvable by any means and we're very close to getting them solved. This part
of the charter, the Oversight Act of 1980, will hopefully lay that issue to rest.
Get it behind us and get a blessing from the democratic elected body. But we
still have in front of us what I think is the next major unresolved issue. And if
you want to put it in a shorthand phrase, it's the issue of the innocent American.
And it's really the core issue that drove the intelligence crisis that led to the
charter's activity now.
What is the proper role of the government in acquiring private information
about foreign powers in the possession of an innocent American? The
intelligence processs is not a process of spying on Americans, finding out what
Americans are doing or maintaining an internal security program. Certainly in
the area of counterintelligence there are aspects that inevitably involve
investigations of Americans. But the whole thrust of intelligence is a protection
from foreign threats. What we have yet to resolve in terms of a congressionally
endorsed consensus is whether and under what circumstances the need to get
information about foreign threats can overcome the strong presumption and right
of Americans to be let alone and not to be intruded upon.
In areas outside of intelligence, the government coerces information out of
innocent Americans all the time. You have to fill out a census form or you have
to fill out tax returns. You have to provide a lot of governmental coerced
information. And while there are occasional people who will say that that's
illegal, I think most of the legal establishment regards arguments against tax or
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census forms in terms of First Amendment or privacy values as lunacy. We
accept that the government has to have that information and that it's right and
proper that it do so. And we try to protect it by statutes to ensure the privacy
of census forms by the Privacy Act and by a number of things. But in the
intelligence field, we haven't accepted that yet and there's a good reason why it
hasn't been accepted yet; and that is that in all these other areas, it's not a
secret process. Americans know what they're giving up, when they're giving it
up, and to whom they're giving it up. And there's the great dilemma in
intelligence activities driven by the secrecy that the information that you're
acquiring about your adversaries may be good only if you know it and they don't
know you know it, and that means it has to come without compromising the fact
that we have it. And that need will, on rare occasions, mean that in practice the
needs of the government to acquire information about foreign powers will be
seen to override the right of the American to be let alone or to be told when we
are extracting information from them.
I don't know how that debate is going to wind up. With the intelligence
committees, I think we've reached a consensus and the consensus was reflected in
the latest versions of S. 2284. But that consensus is not one that I sense has
become a congressional consensus. Whether it will become a congressional
consensus after this election is a very open question. Whether it will become a
consensus beyond Congress in the public is a very open question. It's an issue on
which I trust we can get more, not less, debate as time goes on, an issue which
we can get some attention focused by the legal community and by the academic
community. What are the rights? What are the privileges? How do you solve
the dilemma? Are there absolutes? We have tended over the past several years,
in the development of the intelligence law process, to drift away from absolutes.
There are very few absolutes in S. 2284 as it stands now because we were not
able to reach agreement on what the absolutes should be. I think we all learned
as we worked through the process that we really didn't know enough about what
we were doing to set down absolutes. When you get to a process that is as
difficult as legislation is in twentieth century America, as time-consuming and as
lengthy a process as it is to get something through Congress regardless of the
amount of controversy involved, I think you begin to stand somewhat in awe of
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saying we know exactly what we ought to do now and putting it in permanent
statute. There is that problem with Executive regulations too, but we think that
we can more easily change Executive regulations than we can statutes and to a
certain degree we can.
One of the big absences of input into the growth of law in this area has thus
far been the third branch--the courts--and the public for whom all the branches
work. We have a Foreign Intelligence Surveillance Court. It is unfortunate but
necessary that it works in secret. I say unfortunate, because that means that its
growth and development in the area of law does not become the source of public
commentary. The congressional oversight committees know about it; we have
continuing dialogue with the oversight committees, in terms of how the statute is
being developed as every statute is into a body of judicial precedents, and that's
a very constructive process. One of these days we're going to get into the public.
One of these days we're inevitably going to have some sort of litigation over
something the Foreign Intelligence Court has done. One of these days somebody
is going to be a criminal defendant in a case where there has been a FISA
surveillance, and at that time we're going to begin to get the healthy growth and
development of judicial review in a contested proceeding in an area of the law
that right now is accurately, I think, portrayed by some as all too similar to a
Court of Star Chamber.
What we need before that, I think, is more of an impact and input from the
Bar and from the academic community. A large volume of the Executive Branch
rules and regulations are available to you in unclassified, published form. FOI is
there. And we've had surprisingly few requests for or expressions of interest in
getting the rules and regulations out. When we've gotten them out, they have
met with resounding silence. Since the 12036 rules and regulations were
approved by the Attorney General, I don't think we've had comments from anyone
other than the intelligence committees. No one has said whether the regulations
are right, wrong, indifferent, or what they are. I guess we've done our jobs right.
Maybe that's why there's an absence of comment. But I don't really believe that.
I think what's happened is that there has been a necessary attention focused on
the charters which has been a time-consuming process, and you can't do
everything at once. There's been comparatively little attention directed at the
Executive rules and regulations.
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The Bar and the academic community have a window between now and
whenever Congress reconvenes in 1981, to take a hard look at the Executive
Branch regulations. Give us the benefit of your learning and your thoughts of
what we've done so that when we resume the charter process next year, we'll
have a better information base and perhaps a wider consensus on what we should
be doing. Conferences like this are going to help, and it is important that we
continue them. It's important, I hope, that we can get to some specific
workshops on some specific narrow proposals. It's important that we get the
casebooks out, and important that we ensure that lawyers stay in the process.
It's a point of controversy. Should there be a specialty of intelligence law? I
submit to you that there has to be until we get the consensus formed and until we
get history behind us and get on into the future with the practice. But it's going
to end one of these days. This is not a growth curve that doesn't have a top to it.
It's going to top out sometime in the next few years, level off, and then get back
down to being regularized like other areas of the law. I think it's going to be a
fascinating process to see it grow over those years and what we can learn from
analogous areas. Thank you very much.
Raymond Waldmann
Thank you very much, Ken. I'm glad you're helping to set the agenda, not
only our committee but for the Bar as a whole, because I think these are very
useful suggestions. I believe that we have already accepted your point that we
need more attention and more debate in this field and the Standing Committee is
quite interested in hosting conferences and seminars of this nature. As Morry
mentioned in passing, we are planning something later this year at Yale
University which will narrowly focus on one of the areas--the First Amendment
and its relationship to intelligence activities.
Turning now from the law for a moment, I'd like to introduce our third
speaker who is not a lawyer but a political scientist. He came to the intelligence
field by way of labor, international relations, and international affairs. He is a
professor at Georgetown University, and is also the coordinator of the
Consortium for the Study of Intelligence, a group of academics from both the
legal profession and the legal community as well as from the political science
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and other communities. Roy has studied the intelligence area with a great deal
of attention over the last year or so and has published in the field. (I believe we
have some of your books here.) It's with great pleasure I give you Professor Roy
Godson.
Professor Roy Godson
Georgetown University and Coordinator
Consortium for the Study of Intelligence
Thank you. I hope but do not assume all in this room share two objectives. I
don't think these objectives are shared throughout the whole country, but I hope
those of us here want to have a first-class, "full-service" intelligence capability.
We want an intelligence service that is excellent, that can engage in analysis, in
collection, and in counterintelligence to protect the collection and to ensure that
the analysis is correct. We also want a capability to engage in those "special
activities" that have to remain secret and which are necessary for the foreign
policy and national security of the United States. I assume also we simply don't
want to allow those things to happen; we want to ensure that we have a first-
class capability to do these things, rather than just permitting these things in
law.
I assume, secondly, that we believe our own intelligence services should not
transgress the civil liberties of our own citizens. The purpose of intelligence, as
I see it, is to enhance the civil liberties and the happiness of the American
citizen; we don't want that undermined. Those are two objectives, but as I said I
don't think they're entirely shared in this country and I think the fact that they
haven't been shared has played a role in the intelligence debate, particularly in
the last ten years. But let's start from these two objectives and then proceed
from there.
Now it seems to me that one can draw a distinction between three stages,
three approaches and the stages and approaches happen to move rather nicely in
this triad. I don't say that because I come from a school that is interested in
triads, but I'd like to try to put this into a triad although some of you may object
to my classification. But let me try to characterize the three stages, or, if you
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49
will, three stages and approaches to charters, to laws to regulate intelligence to
achieve the objectives I just specified.
The first period I see begins roughly in '46, '47, '48, in that period, which I
characterize as a period in which the laws came into existence, the laws which
enabled the intelligence service of the United States to operate a full service
intelligence capability. I call this a laissez faire type of law. The law allowed
intelligence to operate. There are a number of people in this room who were
party to that and who know a great deal about that period, and I'm sure if I
mischaracterize that period they'll speak up about it. The approach then was to
provide for the laws and the National Security Act of '47 and subsequent
amendments to allow for Executive Orders gradually to develop within that
framework.
That continued from the late forties on until, I would say, the late sixties.
Then we get what I would consider to be a second stage in the development of
law or approaches to law regarding the achievement of intelligence objectives.
This second stage embodies what I would call a restrictive approach to
intelligence law and regulation. That is to say, it was concluded that the efforts
to achieve a full-service capability and the laissez faire legal system, although it
wasn't completely laissez faire, it was a legal system which allowed for activities
to take place. But, it was argued, that period had allowed things to get out of
hand. There were failures and civil liberties were somehow transgressed. The
intelligence community had gone out of control in some way and had to be
brought back under control, and a whole series of rules had to be passed to bring
the intelligence community under control.
Look at the congressional investigations. We have a number of people here
who were in the intelligence community at that time, and I would hope that they
would comment on this. People like Ray Wannall, Sam Halpern, and others who
testified and participated in those hearings. I think the whole thrust of those
congressional hearings, and I would say the thrust of a lot of the legal groups'
activities that took place, all tried to use legal mechanisms to restrict the
activities of intelligence which they felt were violating or transgressing upon our
second major objective, that is, maintenance of civil liberties.
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I would argue that in this whole period, let's say from the early 1970s up
until very recently, we've seen the introduction of two major charters. And, as I
said again, we have some of the principal authors here. One charter is
approximately 200-odd pages long with a lot of "dos" and "don'ts." Some "don'ts"
were very explicit. Pages sometimes of what you weren't allowed to do directly
and sometimes there were pages and pages on procedural limitations on
activities. And I must say as a nonlawyer I found some of those things really
incomprehensible. That was in the first draft of S. 2525, which was introduced in
1978. The second draft introduced early this year, S. 2284, is only about 40 pages
of very, very small print but really it comes to about 160 pages of regular text.
Again, it is basically a list of absolute restrictions on activities and a list of
procedural restrictions on activities. Some of these procedural restrictions are
extremely complicated. I remember testifying on this legislation at the request
of the House Intelligence Committee where I heard Chairman Boland ask
members of the intelligence community to explain some of these procedural
limitations and the members of the intelligence community testifying they
couldn't do this. Finally, I think somebody asked Boland whether, in fact, the
Russians would gain anything from being able to study the charter legislation.
Would it tell them what we were and were not doing? Boland said he didn't think
it would. They wouldn't be able to understand it and it would confuse them as
well as us. I underline this point because I couldn't understand many of the
procedural limitations but I thought it was because I wasn't a lawyer. And it
occurred to me, therefore, that if the Russians can't understand it, the Admin-
istration can't understand it, Boland can't understand it, one would have to really
pity the people in the field that would have to implement these rules if they were
adopted.
These were the kinds of charters that were introduced by the leadership of
the Senate Intelligence Committee in the last few years. One in 1978 and
another in 1980, neither of those, I'm glad to say, have gotten very far. And I
think it marks the end of the period, of what I would consider to be the
restrictive phase or restrictive approach to charters; absolute restrictions and
procedural restrictions which in fact produce almost the same result. I and
others have spent a lot of time with members of the Association of Former
Intelligence Officers who testified quite extensively on these kinds of restric-
tions and how, in fact, they would serve as impediments.
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I would also add I find some of these restrictions still also present in the
Executive Orders, first 11095 and then its successor 12036. And the fact that
the Executive Branch and some in Congress have agreed on it doesn't necessarily
make me feel much better about the fact that they've agreed on those
restrictions or that restrictive approach. It doesn't make me feel that much
better if one is concerned with a full-service, first class, intelligence capability.
Now, I suggest that we are beginning to enter into what I consider to be a
third stage, a third phase I hope of approaches to a charter and rules governing
the intelligence community. I think the restrictive phase has run its course.
There are now people getting together discussing alternative approaches,
approaches which I consider to be innovative and which will provide an incentive
for performance at the some time that they, I think, will protect the civil
liberties of American citizens. And it's really this third approach that I'd like to
turn to for a few minutes. I wouldn't say that everybody knows the answers. We
don't have a complete set of rules that we would like to introduce, I think, at this
stage. However, at least one version of a new charter will be introduced in the
near future. I must say this charter appeals to me. It's about 25 pages long.
We've gone from 250 to 150, and now we're down to 25. That strikes me as a
positive development. I'm afraid as a Democrat I'm a little concerned because
most of the people who are working on this approach are Republicans, and I don't
want to yield to them the innovative approach, especially to the people who are
supposed to be conservatives. But, in any event, let me if I may just sketch out
some of the principles that I consider to be involved in this innovative approach
without getting into the specifics that have been proposed so for.
There are perhaps three key ingredients in this. First is a statement of
mission and organizational arrangements. One does have to state, it seems to
me, at this stage that the country does want a full-service intelligence
capability. We do expect it to be able to do all of these things. In the charters
that have been so far introduced there have been relatively brief and weak
statements about what it is that we expect our intelligence services to actually
accomplish. So it seems to me, once established, the standard that we would
expect to be met by the intelligence community, and if anybody wants to hear it,
I sort of myself have put a pen to paper on some of these statements, a kind of a
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statement of mission and organizational arrangements to achieve capability for
covert action, collection, counterintelligence, and analysis.
Second is a procedure for reporting or checking on the achievements of the
mission. This seems to me extremely important. In the previous patterns there
were no real procedures established in the proposed charter law (in the
framework law, if you will), for reporting or checking on the achievement of the
mission. There were a few things that were done; for example, the establishment
of the President's Foreign Intelligence Advisory Board which did, I think, check
on whether the government was achieving what it was supposed to in terms of
analytical capability. I'm afraid the Board concluded sometimes that we weren't.
However, that Board has of course been abolished by President Carter. We're
now absent that particular method of achieving our objectives. The idea would
be to establish procedures within the Executive Branch and between the
Executive Branch and the Congress to ensure that the country is in fact doing
what it has to do to promote its policy. I would propose, and I think a lot of
people who are thinking in terms of this innovative approach would propose, that
first the Executive Branch report to itself what it is doing. For example, in the
area of national estimates, the government gets together, prepares an estimate
and sends it to the President. But in the area of counterintelligence up until, I
think, this year, we have never had national counterintelligence estimates. I
must say that was called for in the President's Executive Order 12036, an
innovation on the Ford Executive Order and I found that a rather positive
approach. Somebody in the United States should have the responsibility of
bringing together the entire threat, counterintelligence threat to the United
States, in one place rather than leaving it to the CIA to worry about its counter-
intelligence problems, the Army to worry about its counterintelligence problems,
the Navy to worry about its counterintelligence problems, the Air Force its, and
NSA, and so on without anybody bringing this whole thing together. And again, I
could expand this at considerable length if anybody wants to go into it.
I'm saying we would have within the Executive Branch procedural checks to
make sure that in fact the whole intelligence threat and opportunity was
considered. Also I would propose that the Executive Branch report to the
Congress what it was doing to achieve the statement of mission which would be
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enunciated in the first part of the charter. I would suggest that the DCI or
whatever is the head of the intelligence community, report to the Congress what
the Executive Branch is doing to achieve American foreign policy objectives,
let's say in the area of covert action, once a year or maybe twice a year. He
would also tell the Congress what we are not doing why. At the moment,
he's only required to report the specific actions that he's about to do or in some
circumstances that he has just done. But he doesn't have to say what he is not
doing. In other words, there's no incentive for him to actually do anything. I'm
suggesting that this innovative approach would provide an incentive, at least, for
him to consider a full range of conditions in the world; what it is that we are
doing or not doing covertly to influence those conditions.
And finally, I think we would have to have provisions for guidelines,
Executive Branch guidelines, and institutions, to ensure that there were no
violations of American civil liberties. I would suggest that the Executive Branch
draw up its own guidelines, most of which would, I'm afraid, have to remain
classified. As a scholar, I wish I could get them all. I'd like to get everything, as
a matter of fact, but I recognize that the Administration will have to keep some
things secret. But the Executive Branch would draw up its own guidelines; the
guidelines would not involve the quasi use of the criminal standard which has
been the major characteristic of the current guidelines. (I assume they are going
to be discussed quite a lot here as you have some of the principal authors of
those guidelines here for this conference.) And the guidelines would be reported
to the Congress. In other words, you wouldn't have restrictions put into law,
either absolute restrictions or procedural restrictions, which have the effect of
absolute restrictions. What I'm suggesting here is that you want Executive
Branch guidelines prepared by the Executive Branch but reported to the
Congress. The Congress then would oversee these guidelines, would be
constantly monitoring them, but you wouldn't have in statute restrictions which
have been the characteristic, I would suggest, of the charter efforts so far.
In conclusion, I would suggest that in the United States we have moved from
a laissez faire legal system which allowed for activity, into a period of
restrictions which have dampened down and damaged intelligence activities.
Recently I have been interviewing American intelligence officers, people who
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served in the 1970s, 1960s, 1950s and tried to make comparisons. I also
interviewed a number of retired foreign intelligence officers who also will testify
to the fact that American performance in many places around the world has gone
down, to the detriment of Western security interests. To move again from this
period of restrictions to a more innovative phase, is going to require considerable
thought and creativity. However, within the last year, a number of very
prominent academics and other specialists have begun to turn their attention to
the subject and, already, there has been considerable progress.
Again, it's really a pleasure and a privilege to be able to participate in the
deliberations of this committee, and I hope it will be the first of many.
QUESTION PERIOD
The question period following included discussions whether in fact top
quality people are being recruited for "intelligence careers" by the United States
or retained after recruitment and why the Church and Pike committees dealt
only with possible intelligence abuses and ignored the threat to our national
security.
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II. THE ROLE OF THE JUDICIARY AND THE STANDARDS TO BE
APPLIED TO INTELLIGENCE OPERATIONS
Moderator: Professor Antonin Scalia
University of Chicago Law School
Intelligence Consultant, Standing Committee, ABA
Former Assistant Attorney General,
Office of Legal Counsel
The subject of the panel this morning is the role of the Judiciary in the
intelligence process. To set the stage for it, I'd like to make a few remarks
about where we are and how we've gotten here. The attitude with regard to
involvement of the Judiciary as recently as 1948 was set forth in the famous
Waterman Steamship Corporation case that's cited by the Justice Department in
virtually any suit involving presidential powers. For those of you who have
forgotten the language that the Supreme Court used, it went like this: "The
President, both as Commander-in-Chief and as the Nation's organ for foreign
affairs, has available intelligence services whose reports are not and ought not to
be published to the world. It would be intolerable that courts, without the
relevant information, should review and perhaps nullify actions of the Executive
taken on information properly held secret. Nor can courts sit in camera in order
to be taken into executive confidences. But even if courts could require full
disclosure, the very nature of executive decisions as to foreign policy is political,
not judicial. Such decisions are wholly confided by our Constitution to the
political departments of the government, Executive and Legislative."
Well, needless to say, that language is, to borrow a phrase once popular in
the Executive Branch, no longer operative--because in fact the courts do sit in
camera to be taken into Executive confidences. The first development in that
direction was the 1974 amendment of the Freedom of Information Act. Prior to
that time, the Supreme Court had held in the Mink case that judicial review of
the propriety of invoking disclosure exemption (b) (I) under the Freedom of
Information Act required the court to determine only whether a document had
been stamped "Classified." If it was stamped, the Supreme Court said, that was
an end of the matter; the court could not inquire into whether the classification
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was proper. The '74 amendments to the Freedom of Information Act, which took
effect in '75, required that the court determine not only that the stamp
"Classified" was on the document, but also that such classification was correct.
That was not as large a step as one might think, because all it required was that
the court determine that subordinates of the President properly applied the
Presidential Executive Order specifying what should be classified. It still left it
up to the President (under the applicable statutes) to say what should be
classified.
The next major development was the 1978 Foreign Intelligence Surveillance
Act, which applies to electronic surveillance within the United States. Briefly,
the major judicial involvement under that legislation is the requirement that the
court determine on its own that the target of electronic surveillance is a foreign
power or an agent of a foreign power, and that each of the facilities or places at
which the electronic surveillance is directed is being used or about to be used by
a foreign power or agent of a foreign power. The court must determine all that
on its own. Beyond that, the court simply accepts the certification of Executive
Branch officials as to other matters--as to whether the information sought is
foreign intelligence information, as to whether it's necessary or essential to the
national interest. It accepts those certifications unless they are clearly
erroneous. A relatively limited judicial involvement, but a real judicial
involvement in any case.
S. 2284, not in its current bobtailed version but as originally introduced in
February of this year, also provides for a judicial involvement with respect to
"extraordinary techniques"--not just electronic surveillance but also physical
searches, or any other searches that would require a warrant if conducted for
domestic law enforcement purposes (a category which, as you know, covers a
multitude of not only sins but also uncertainties). For all of those "extraordinary
techniques," the judicial involvement prescribed by the proposed legislation is
that the court itself would not merely accept Executive certification but would
have to determine for itself that the information sought is foreign intelligence;
and for counterintelligence operations it would have to determine for itself that
the counterintelligence information likely to be obtained is "significant." In
these and other respects, the legislation proposes a much higher degree of
judicial involvement.
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With those introductory remarks to set the stage for the subject matter of
this panel discussion, I would like to introduce our first discussant. Morton
Halperin has a B.A. from Columbia, a Ph.D. in political science from Yale. He is
proud of the fact that he never received a law degree. He taught at Harvard
both in the college and in the law school. He served in the Department of
Defense as Deputy Assistant Secretary from 1966 to '69. He was on the staff of
the National Security Council in 169. He is currently the Director of the Center
for National Security Studies and one of the most prominent advocates of greater
public, congressional and, where necessary, judicial review of intelligence
activities. Mr. Halperin.
Morton Halperin
Director
Center for National Security Studies
Thank you very much. It's a pleasure to be here. It's particularly a pleasure
for me to share a panel with Attorney General Levi. We all owe him an
enormous debt of gratitude in this area for the stand that he took when he was
Attorney General in breaking through a log jam of years of Justice Department
and Executive Branch opposition to providing a role for the courts in supervising
intelligence surveillance and endorsing what finally became the Foreign
Intelligence Surveillance Act.
What I want to do in the interest of time and also in the interest of
provoking discussion, if not this morning, at least during the conference, is to lay
out a set of propositions affecting the proper role of the courts in supervising
intelligence matters. My assertion is that this is the law as the Supreme Court
has defined it, not as I would like it to be. There are a set of propositions which
can be derived from the cases, that there is very little conflict in those cases,
and that those propositions really determine the parameters of the options that
we have in dealing with surveillance in areas protected by the Fourth
Amendment.
I would begin with the assertion that the Fourth Amendment protects the
privacy of persons regardless of the purpose for which the government seeks to
intrude on the zone of protected privacy. It does not matter that there is no
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intention to use the information to indict somebody. It does not matter that the
person may be suspected of being an agent from a foreign power. And it does not
matter that the government believes that the information is important for
national security purposes.
If the government is interested in information which is stored or communi-
cated in ways that are protected by the Fourth Amendment, that is stored on
private premises, sent through first class mail or sent through telephone or cable
channels, then the only choices that the federal government has if it wants to
seize that information is either to use the normal criminal investigative
procedures and search warrant processes or to conform to Fourth Amendment
requirements under special national security procedures established by the
Congress in legislation; or, not to get the information. I would submit that the
fourth alternative that is often discussed, and which I suspect will be put before
you in a few minutes, namely, of proceeding to gather that information from
these places in the absence of a judicial warrant on the authority of the
Executive Branch, is not only unconstitutional but dangerous. We have a record
of the danger that came from permitting this activity to go on. I would also
submit, and I may be biased by my own personal experience, that requiring high
level approval, even requiring Presidential approval, before one permits
warrantless intrusion into these areas is simply not an adequate form of
protection.
The Fourth Amendment creates a number of requirements for the conduct of
searches and not simply the requirement of a warrant; these other requirements
apply whether or not a warrant is required. The first requirement, of course, is
the warrant, in the absence of exigent circumstances. And I think exigent
circumstances mean that it is not possible to secure a warrant without the
evidence being destroyed in the meantime. The doctrine applies only when in all
other respects the government is entitled to seize the information and could get
a warrant if there were time to do so. Exigent circumstances does not mean that
the government official wanting to seize the information does not want the
person from whom it is seized to know that the information is being seized.
There is also a requirement of reasonableness, that it not be a general
search. There is a requirement of notice that a person from whom information
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or documents are seized is informed that a search occurred and is informed of
what was seized. And there is at least, in the case of homes, a requirement of
knocking before there is an entry, an announcement that one has a warrant and
intends to enter premises.
In 1967 when the Supreme Court brought electronic surveillance into the
Fourth Amendment, the Court did not, as I think some have suggested, lower the
standards which already applied to the protection of individuals from physical
searches. I would argue that what the Court did in bringing electronic
surveillance under the Fourth Amendment was to fashion a set of new procedures
which would make it possible on the one hand to bring the electronic surveillance
under the Fourth Amendment and on the other to permit the government to
engage in electronic surveillance at least in some circumstances. But there is
nothing in the Katz decision or anything that follows to suggest that the Court
intended to reduce the protection which we already had against searches and
seizures of physical premises. The Court, of course, had to fashion a different
reasonableness requirement, because by its nature a bug or a wiretap is a general
search; and, therefore, we've had the introduction of minimization procedures of
various kinds which are intended to compensate for the ability to seize
everything which moves on the wire.
The courts have abandoned the knock procedure in saying that you can plant
a bug, precisely because there is no way to plant the bug if you knock on the door
first and say, "I intend to come in and plant a bug in your room so that we can
hear what you have to say." And the Court has said that notice requirements
could be delayed, not avoided but delayed, since again you could not give notice
in advance or at the time you were seizing conversations and have the
conversations still be seized.
At the some time that the Court was putting wiretaps and electronic
surveillance under the Fourth Amendment, it suggested--it did not decide--that
there might be a national security exception for the warrant requirement of the
Fourth Amendment in the case of national security electronic surveillance. But
that decision, leaving that question open, and of course several circuit courts
have decided in favor of there being such an exception, did not suggest at all that
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the other Fourth Amendment requirement did not apply to national security
electronic surveillances. The Court said we do not decide whether the warrant
requirement of the Fourth Amendment applies; not whether the Fourth
Amendment applies. There was nothing in that decision and nothing in any
subsequent decision, except for one district court decision, suggesting that there
was an exception for physical searches, that the Court was intending to suggest
or imply that it was reopening the question, which it appeared to have settled in
many other cases, that in the case of physical searches there was no national
security exception to the warrant requirement.
The Constitution provides protection for Americans abroad from the actions
of the U.S. government. The Fourth Amendment applies abroad, although it is
possible and I think unsettled the degree to which the standards and procedures
might be different to take account of the different circumstances abroad. This
leads me finally and very briefly to some conclusions about the issues raised by S.
2284.
First, I would argue that if the government wants to seize information from
these protected areas, the courts must be involved and warrants must be secured
for all such searchs. What the Executive Order calls situations in which warrants
would be required for criminal investigation is a phrase that has too many words
in it. If the situation requires a warrant, it requires a warrant, period. The only
alternative choice if one does not want to involve the courts is to forego the
searches. The Foreign Intelligence Surveillance Act should be applied abroad to
electronic surveillance in essentially the some way as it applies at home,
although there are some technical problems around the margin.
I would argue that physical searches are also appropriate under the standards
of the Foreign Intelligence Surveillance Act, both at home and abroad, but only if
the requirements of knock and notice, which I think are required in the case of
physical searches, particularly physical searches of the home, are applied. And if
the position of the intelligence agency is that it does not want to let the person
know that he is under investigation, then I think the only alternative is to leave
the home alone. I do not think that the founders and the drafters of the Fourth
Amendment thought that if the British government had only labeled the people in
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the colonies who it wanted to search as agents of the French, it would have been
all right to go in and seize their property without a warrant, nor do I believe that
the Fourth Amendment could be overcome by any president simply by labeling his
enemies agents of a foreign power as most of our presidents have done to most of
their political opponents. It just defies everything that was intended in the
history of that Amendment. I would argue that the current purported authority
in the Executive Order to permit secret searches in homes by the Attorney
General signing a piece of paper saying that he finds probable cause to believe
that the person is an agent of a foreign power is clearly unconstitutional and that
any effort to permit a warrant which would not require knock and notice would
be also unconstitutional.
And finally, I would argue that the proposal in the original 2284 to permit
electronic surveillance and physical searches abroad, against what Ken Bass
described to us as the innocent American who has no connection with a foreign
power but who happens to possess information that the government wants,clearly
violates the intent and the letter of the Fourth Amendment.
Professor Scalia
Thank you, Mr. Halperin. Our next speaker is Michael Uhlmann. Mr.
Uhlmann has a B.A. from Yale and a Ph.D. in political science from Clairemont.
Unlike Mr. Halperin, he then made the mistake of going to law school, receiving
an LL.B. from the University of Virginia. He has had experience in the Congress,
as Minority Staff Director of the Senate Select Committee on Equal Educational
Opportunity and as legislative counsel to Senator James Buckley; and in the
Executive Branch as Assistant General Counsel of the Federal Trade Com-
mission, and finally as Assistant Attorney General for Legislative Affairs in the
Justice Department from 1975 to 1977. He is now in private practice in the
District of Columbia. Mr. Uhlmann.
Well, as you can see from Nino's introduction, but contrary to your
brochures, I am not now, nor have I ever been Robert Bork. It's very difficult to
be Robert Bork. Indeed, if the truth be told, even Bob Bork has trouble being Bob
Bork. You came expecting Cherries Jubilee, and you're going to end up with
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peanut-butter-and-jelly. I accepted this task of standing in for Bob a couple of
days ago on a number of explicit conditions, the first of which was that I wouldn't
have to prepare a paper. The second was that I wouldn't be held responsible for
engaging in any sins of omission or commission. I agreed, moreover, only with a
good deal of trepidation, because I am surrounded by three gentlemen who have
devoted a goodly portion of their lives to the study and elucidation of this
subject. In this business I am a rank amateur. I think I can best perform my role
this morning by reraising a couple of questions that have hovered around the
issue for the past four or five years, but which have not received, in my view at
least, all the attention they deserve. I do so on the supposition that a couple of
well-asked questions are worth a couple of thousand bad answers to other
quest ions.
My first question has to do with the validity, in the constitutional sense, of
the judicial role in issuing warrants under the Foreign Intelligence Surveillance
Act (F.I.S.A.). The second has to do with the propriety of the judicial role--that
is, assuming the constitutional question to be moot or settled (for good or ill), is
it nevertheless a good idea to involve the judiciary in this matter in the way in
which F.I.S.A. involves it?
The constitutional issue is raised by the hoary question of whether the issues
presented to a judge in a typical F.I.S.A. proceeding constitute a "case or
controversy" within the meaning of Article III. There is some attenuated but I
think on the whole aberrational authority for the proposition that F.I.S.A.
proceedings are cases or controversies within the traditional meaning of the
term. I'm not sure that the issue has been explored with all the care that it
deserves.
The spirit of the case or controversy requirement, it seems to me, derives
from two distinct sources, one having to do with a concern over judicial
economy, the other going to the more substantial concern of separation of
powers. As far as judicial economy is concerned, the case or controversy
requirement is designed to preclude the exercise of judicial power over merely
hypothetical conflicts. The conflict must be "real", so the hornbooks say, in the
sense that the parties before the court must be in some state of genuine
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adversity requiring judicial resolution. The courts should not be in the business of
issuing mere "advisory opinions." The quite distinct separation-of-powers
question is whether and to what extent the judiciary may be intruding upon
prerogatives or discretionary authority vested by the Constitution in the political
branches.
On both points, I think substantial questions may be raised about whether the
judiciary under F.I.S.A. is presented with a genuine case or controversy. Now
those who supported the legislation originally, and those who support it now, have
been sufficiently troubled by this issue (in private at least) to try to bring
F.I.S.A.'s standards very close to those of Title III of the Omnibus Crime Control
and Safe Streets Act (which governs the issuance of electronic surveillance
warrants in normal criminal cases). That is to say, the effort has been made to
convert a typical F.I.S.A. proceeding into a kind of mock criminal procedure.
This for a number of reasons. One is to assuage the concerns of civil
libertarians, who like the "probable cause" standard of Title III, and who believe
that its application to foreign intelligence surveillance will prevent abuses of the
sort that occurred in the past. The second reason is that in seeking to apply the
standards used in one body of law (criminal) to another (foreign intelligence), one
tends to obscure the novelty of what it is that judges are being called upon to do
in a F.I.S.A. proceeding. A third and related reason is that the analogy to Title
III tends to make judges feel comfortable: they (and we) are led to believe that
they are standing on the more or less familiar terra firma of criminal procedure.
In short, under F.I.S.A., the question of whether a genuine case or controversy
exists is "fudged." It is deemed to exist by analogy only.
But despite the effort to analogize F.I.S.A. proceedings to ordinary criminal
proceedings, I'm not altogether sure that we are not creating a cure worse than
the disease. The analogy tends to break down because the purpose of F.I.S.A.
proceeding is different from the purpose of a Title III proceeding. In both
instances, it is true, the warrant is issued ex parte, but in the criminal case as
opposed to the foreign intelligence case, it is intended or at least understood that
at some point the judge's ruling will be reviewed in open court. The defendant in
the criminal case will always have the right to challenge, if you like, the
reasonableness of the judge's determination of the reasonableness of the warrant.
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But in the typical F.I.S.A case, unless it is one of those rare instances in which it
is the government's intention to proceed to trial, the "defendant" may never be
able to mount such a challenge. But the role of the defendant, it seems to me, is
what gives "bite" to the case or controversy requirement: unless it is intended
that the defendant will either now or in the future be able to challenge the
government, is there a distinctly judicial role to be performed? The judge in the
F.I.S.A. proceeding acts, as it were, in loco parentis for a "defendant" who will
seldom, if ever, be a defendant in fact. Now it will be said that it is a good idea
to have someone standing between the Executive Branch and the issuance of its
foreign intelligence warrants, but that is different from saying that the case or
controversy requirement has been properly met. To repeat: is there anything
distinctly "judicial" about the judgment that a F.I.S.A. judge is typically called
upon to make? Or does it simply make everyone "feel" better that someone in a
black robe is making the judgment?
Passing for the moment the formalistic point about the case or controversy
requirement, I think we could all profit by being more candid than we have been
about what is actually involved in the F.I.S.A. procedure. As Nino suggested in
his introduction, the F.I.S.A. machinery may be part of a pattern, beginning with
the 1974 amendments to the Freedom of Information Act, which involves the
judiciary more and more in the exercise of discretionary authority that
traditionally was thought to lie wholly within the prerogative of the Executive.
Now if one confines the judicial role under F.I.S.A, as Nino does, to one of fact-
finding, one tends to insulate the Act from certain kinds of assaults that might
be made upon it. But I'm not sure that Nino's reading of the Act would
necessarily be agreed to by a number of people who sponsored that Act and who
now support it. I have encountered certain interpretations of the Act which tend
to celebrate a rather more substantial judicial role than that envisaged by
Professor Scalia. What these others would like to see is something akin to the
assumption of law-making authority indulged by Judge Wright in the Zweibon
case. There is reason to believe in our time that once the judicial nose gets
under the tent, the hump and all the rest will not be long in following. And that
is the point at which one has to take seriously the question of whether the
judiciary is not intruding into matters that are best left within the province of
the Executive. Even if one reads the Act's mandate to the judiciary narrowly, as
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Nino would, it would be hard to describe the judicial role under F.I.S.A. other
than by saying that judges are now being called upon to act as an administrative
arm of the Executive. And if the judicial mandate is read more broadly, as I
suspect it will be, you have the potential for judicial interference in an area that
judges, by training, experience, and custom are not particularly well qualified to
judge.
How the Act is working in practice, I do not know. You don't know. Well, a
few people in this room presumably know, but the general public does not know,
indeed may never know. What we have here is a secret body of law secretly
arrived at. F.I.S.A. has the peculiar characteristic of virtually requiring a breach
of national security before its wisdom or constitutionality can be tested. That
troubles me. I think it should trouble all civil libertarians. If it is argued that
machinery like this is necessary or desirable in order to guard against the
possibility of Executive abuse, it doesn't follow that the mechanism ought to be
celebrated as a triumph of civil liberties.
I share, I suspect with everybody in this room, the desire to prevent abuse of
Executive discretion. It may be necessary to create some sort of new body to
double-check the execution of foreign-intelligence surveillance warrants. But I
don't think it necessarily follows that the judiciary, for constitutional as well as
policy reasons, is the best body to perform that function. F.I.S.A. is almost
limitless in its faith in the neutrality of judges, and I suppose what troubles me is
that my own faith is not quite so limitless. Judges are not immune from the
ordinary laws of human nature. They suffer from the same vices and virtues as
the rest of us, as do members of Congress and the Executive Branch. Given that
this is a secret body of law secretly arrived at, given that the judiciary is
isolated from public opinion and the affairs of state in the international arena,
we may well rue the day that so extraordinary and novel an authority was vested
in judges. What one does about it at this point, I don't know. There are
alternative remedies. The McClory bill, which Mort Halperin alluded to a few
minutes ago, would have vested a kind of reviewing authority in Congress without
involving the judiciary. That approach has problems of its own, but from a civil
liberties perspective it was not necessarily any less desirable than the F.I.S.A.
procedure as adoped.
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The rise in the esteem for the judiciary as the last and best defender of civil
liberties is a fairly recent phenomenon. Whether it will be a long-standing
phenomenon or not, I don't know. But if I were Mort Halperin reviewing the
recent pronouncements of the Supreme Court on the exclusionary rule, handed
down in the closing weeks of this term, I would begin to have my doubts about
whether I should want F.I.S.A. authority vested permanently in the judiciary
without further review by some politically responsible body. What does one do if
the judiciary goes askew, either by knee-jerkily approving draconian surveillance
orders proposed by the intelligence community, or, in the alternative, by denying
to the Executive the rightful ability to undertake surveillance deemed necessary
to the protection of the national interest?
Which gets me to my final point. One critical difference between F.I.S.A.
as drafted and submitted during the Ford Administration and F.I.S.A. as enacted
is the disappearance of the language which reserved, in constitutional theory at
least, the right of the President to undertake warrantless surveillance under at
least some (unspecified) circumstances. Some would read that reserve clause
language as being "merely" declaratory or symbolic. Nevertheless, I consider it a
"symbol" of the very greatest importance. F.I.S.A., as I read it, purports to
establish the exclusive means (along with Title III in appropriate cases) by which
electronic surveillance may be licitly conducted within the United States.
Theoretically, no mere Act of Congress can remove from a president a reserve
constitutional power. Nonetheless, F.I.S.A. on its face implicitly, if not
explicitly, denies the existence of such a power to conduct surveillance save in
terms spelled out by the Act, and one is reminded of Justice Jackson's opinion in
the Steel Seizure case to the effect that, if there be a reserve power, it is at its
absolute lowest ebb when it is set against an Act of Congress to the contrary. A
judge disposed to rule against a president would have no difficulty combining a
theory of express or implied waiver with the legislative history of F.I.S.A. to
deny a president a right that every president since at least Franklin Roosevelt
understood to be a necessary and useful ingredient of his Commander-in-Chief
authority.
I don't have sufficient faith in the drafting skills of lawyers, whatever their
intentions, to say that there is no legitimate circumstance under which a
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president might be permitted to conduct warrantless foreign intelligence
surveillance. The contingent circumstance of foreign affairs is simply too
multitudinous, too unpredictable to permit the belief that the entire universe of
possibilities is adequately covered by F.I.S.A. I am greatly troubled by the
disappearance of the reserve clause language from F.I.S.A. as enacted, and I
think it puts the President of the United States in one helluva position should an
unanticipated exigent circumstance arise in the future.
Professor Scalia
Thank you, Mike. We greatly appreciate your coming in at a late date to sub
for Bob Bork, and it was a fine job.
If you had any doubts, ladies and gentlemen, about why S. 2284 ran into
rough sledding, you must know now. We've heard from two speakers, one of
whom opposes the legislation because he thinks that judicial approval of the
extraordinary techniques cannot validate them; the other of whom opposes the
legislation because he thinks judicial approval is not necessary and would be
counterproductive. Our third speaker--who knows?--may be in the middle.
Edward Levi is well known to everyone here. There is no way he could have
avoided being on this program. He is a Counselor to one of its sponsors, the
Standing Committee on Law and National Security of the ABA. As for the other
sponsor, he is a former Dean of this law school, a former President of this
university, and a current faculty member of this law school. And finally, if that
weren't enough to get him on the program, he is of course a former Attorney
General of the United States, and, I think it's fair to say, the first Attorney
General to have to wrestle with the problem of clearly defining the regime that
governs intelligence collection activities. Professor Levi.
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68
Honorable Edward Levi
Former Attorney General of the U.S.
Distinguished Service Professor,
University of Chicago Law School
I think I shall be brief. I say I think I will because I don't know what I'm
going to say. I start where I think we all start. One place I start from is the
agreement that it is essential that this country have a strong intelligence
activity. I must say that when we talk about the history of it I'm always
reminded particularly in legal circles that history is constantly being remade and
reformulated and pretended. To say, for example, that it was not until the last
few years that there was a reporting to Congress on counterintelligence
activities makes one wonder what J. Edgar Hoover was doing when he was
reporting to Congress, which he frequently did, and when he was in charge by
presidential authority of counterintelligence activities. This is just a reminder
that there is a long and turbulent history, starting around 1930; one could go
before that, to the development of the relationship between the law and
intelligence activities where where there has been a great need for intelligence
activities. With that, of course, there has been the requirement of protecting
individual rights.
Now it seems to me that one approaching this in a governmental way has to
see this subject in a much larger setting. It is not good for the foreign
intelligence community to be operating in an area which is constantly under the
risk of domestic attack. It is not good for American companies, for example, to
cooperate with intelligence activities in one year, requested to do so by
presidents and what not, and then some years later to be racked up and down by
the congressional committees for their outrageous cooperation. It is not good for
people, government employees in the intelligence agencies, to be told to do one
thing one year and some years later to be informed, either through congressional
reports or footnotes to congressional reports, that what they did was illegal; not
only unconstitutional, but immoral. And if one says does that have an effect on
the morale of agencies, it rather sounds like a silly question. Of course it does.
So the question is how does one approach as a government matter that kind
of problem? What we're dealing with here is the problem of a country which
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attempts to run itself with a separation of powers idea. The whole surveillance
area is an extraordinary example of those problems. It's an unlovely example but
an extraordinary one in which the various parts of the government have at
various times behaved as though they were not responsible for what the
government was doing or at least they were not responsible for what other parts
of the government were doing. So that you have had at times a kind of
equilibrium in which Congress has taken the position in effect that it knew that
certain activities had to be carried on. It did not wish to pass a statute saying
they shouldn't. It wished to be free to deny that it knew that these activities
were being carried on, and sometimes there was a political element.
Beyond that, we have to think of what kind of a form of government our
country really has, and now I'm going to the problem of the judiciary. It's quite
interesting to hear Mike Uhlmann imply the existence of Hayburn's case.
Hayburn's case isn't going to keep the courts from doing what they want to do;
namely, to insist on warrants in an ever-increasing area. An argument based on
Hayburn's case doesn't really involve the case or controversy element in the same
way anyway. Hayburn's case really indicated that the court wanted to be able to
tell the Executive what to do. It didn't want the Executive to tell the courts
what to do. And Hayburn's case was a good prophecy, because the superinten-
dence of American society is in the hands of the courts. In that sense, the courts
are the most powerful branch among the three branches of government in the
United States. One can have an interesting discussion as to whether it is
appropriate to have courts in this area, but the courts have no doubt about it and
they're the ones who are deciding the question.
It is also interesting to have a debate as to whether there should be a
charter or rules writing of government character determining what should be
done in this area and whether the courts should be involved in that, because at
the present time and before the Foreign Electronic Surveillance Act we did have
such a charter, we did have such writing. The trouble was that it was in about
fifty-seven, and that's a minimum number, of Supreme Court cases. That is
really not a perfect shape for the law. If one thinks, as was suggested earlier
this morning, that two hundred plus pages is an awful lot for a code, well try
reading fifty-seven Supreme Court cases and I assure you the pages are much
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more difficult to follow, and much more hazardous. If the suggestion is that this
is a violation of what courts ought to be doing because they should not be giving
advisory opinions, I would rather suggest that perhaps we ought to change our
minds about that and say that since courts are exercising a superintendence of
American society which they never exercised before, they ought to be giving
advisory opinions.
I don't want to use too much hyperbole about it but starting with the
creation of a legend from James Otis in the Writs of Assistance case and the
Boyd case, there has been a rewriting of history with the creation of great
heroes, civil liberties. I would say an almost intentional misreading of the Fourth
Amendment, if you mean by that in its historical meaning.
Now where does that put the Executive Branch of the government and where
does it put the Legislature? It seems to me that there is a strong responsibility
for those in government who are interested to have the situation clarified, and
the kind of clarification cannot be one which says, "Well if you have the power,
and we won't tell you whether you do or not, you may exercise it." That really
was the form of the first wiretapping statute. That is a complete evasion of
responsibility by the Legislative Branch. As a personal little footnote, which is
probably not terribly interesting, that when the Church Committee came out
with one of its subcommittee reports which said that it doubted that the
Executive had the power to have warrantless foreign electronic surveillance, I
discussed that interesting observation with a leading senator, whose name I will
not give, but one whose stature was enormous, whose knowledge and stature were
enormous. He had signed that report. And I said to him, "Well now I am the
Attorney General and I want to know what this sentence from the Legislative
Branch means. Does it mean that I should now not any longer authorize such
foreign electronic surveillances?" And he said, "Why you know more law than we
do. Don't worry about it." And I said, "Oh come now. First I don't, and secondly
you know that's not an appropriate answer when the Legislative Branch has said
something like this. I want to know what you think my responsibility is." He
said, "Of course you have to sign them." Well, that is a very interesting form of
government and it does show an inability to draw things together. It seemed to
me in the first place that the intelligence agencies were entitled to the best kind
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of written instructions that could be given. Protecting them, protecting the
public. It was also required that there be legislation. Now the legislation could
say this is a matter for the Executive Branch. I don't find such legislation. Or
the legislation could try, as these acts and bills try to do, to indicate what the
problem areas are and how they are to be settled. And I suppose there could be
legislation which would say quite clearly the courts are to stay out of this.
What area of life do the courts stay out of? They run schools. They run
hospitals. They run prisons. They determine what should be taught. They
determine what should be done in housing projects. They tell you when you can
have an abortion. What is it that they stay out of? And I'm not sure that I want
my remarks to be taken as critical, because governments do evolve and our
government has evolved, and it's very hard I think for us to see what is there. As
I would say, you don't see what is there by looking at Hayburn's case. When you
look to see what is there, you see a pyramid. A pyramid in which everyone is
supposed to be engaging in activities which involve rights and duties, which may
be abused, which have to be reviewed in some way, and certainly a final review is
therefore possible by the Supreme Court of the United States.
QUESTION PERIOD
The question period following included discussions of if and under what
circumstances the President might go beyond the Foreign Intelligence
Surveillance Act to engage in warrantless activities, what the Congress intended
to authorize or proscribe in that Act, and whether wartime or terrorist
exigencies would authorize a disregard of some of its provisions.
Morris Leibman
My bosses have made me put away my twenty-page introduction of Judge
Webster and to review his distinguished career. May I just say that it's with
great pride that in this setting an American Bar committee has the privilege of
introducing as its main speaker a truly distinguished lawyer who has brought all
of the great characteristics of what we hope the Bar represents, has brought it to
government at a very trying time. His experience on the bench and in many
other activities is too well-known for me to review but we're just delighted that
he was able to make it to be with us today. Judge Webster.
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72
Honorable William Webster
Director, Federal Bureau of Investigation
It's a pleasure to be with you this afternoon. I would like to take this
occasion to discuss the FBI's role as an intelligence agency. First, what does the
public expect of the FBI? Second, what is the proper role for Congress in this
country's intelligence effort? Finally, what balance should be struck between
powers the intelligence community needs to be effective and restrictions that
are necessary to protect individual rights?
In the last decade, many events have drawn attention to the intelligence
community and its activities. The Church Committee hearings were perhaps the
most important of these events. They raised a number of controversial issues
and prompted serious efforts to enact an intelligence charter. In addition, they
were partially responsible for the current system of Attorney General guidelines
and congressional oversight, which has helped to diminish some of the suspicions
generated by the hearings.
Congressional consideration of an intelligence charter has provoked con-
siderable thought within the intelligence community about the individual roles of
the various agencies and about their relationships with one another. It has also
sparked public debate over the need for intelligence--a debate that we believe
identified the importance of our counterintelligence effort. Finally, it has
forced both intelligence agencies and the Congress to balance the need for
intelligence against the rights of individuals affected by our intelligence
gathering activity. Through these debates, the public has been given a better
understanding of this previously closely held activity of government.
Occasionally, the public hears directly and in some detail about our work.
For example, the FBI's response to the recent influx of Cuban refugees was
highly publicized. We had the special challenge of identifying hostile intelligence
elements among more than 100,000 refugees, most of whom arrived in a two-
month period. We identified some individuals of counterintelligence interest, but
of course, there is no assurance we identified all of them. Our work, therefore,
must continue.
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Thankfully, we don't often have thousands of refugees from hostile countries
suddenly descending upon us. We must, however, deal with thousands of visits by
citizens of such countries. Last year, for example, more than 81,000 persons
from Soviet and Soviet-bloc countries--seamen, tourists, trade mission personnel,
students, and diplomats--entered the United States.
Although most are legitimate visitors, we know that there are intelligence
agents among them, and we have a responsibility--just as we did with the Cuban
refugees--to identify them and to prevent their engaging in acts harmful to the
national interest.
In sum, as a result of congressional hearings and debate on the proposed
intelligence charter and other intelligence legislation, and, for example, the
publicity surrounding the FBI's mission during the influx of Cuban refugees, the
public has become more aware of the purpose and the need for counter-
intelligence activities.
The need for counterintelligence is well recognized. But, as this year's
debate over the Hughes-Ryan amendment demonstrates, the degree of con-
gressional oversight of this country's intelligence effort remains controversial.
For years, the Bureau conducted its intelligence and counterintelligence
work under presidential mandates based on and justified by the President's
inherent constitutional powers. The courts were reluctant to intervene in
matters that were thought to be assigned exclusively lo the Executive Branch.
Congress, too, respected the separation of powers and involved itself only to the
extent necessary to provide funding.
The days of a passive Congress, and a passive Judiciary, are over. In the
Foreign Counterintelligence Surveillance Act, Congress established a special
court and new standards to control the use of electronic surveillance in
counterintelligence cases. This Act properly addressed the Fourth Amendment
concerns inherent in those electronic surveillances. While, initially, I had
reservations about the Foreign Intelligence Surveillance Act, I can say, on the
basis of our experience, that it works well--and has not had a deleterious effect
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on our counterintelligence effort. Incidentally, I have supported, in the charter
context, an amendment to the Foreign Intelligence Surveillance Act which would
have the courts address physical searches in the same way as electronic
surveillance.
The Intelligence Oversight Act, passed this month by the Senate, seeks to
firmly establish and delineate the congressional oversight function. The bill
provides for congressional oversight of intelligence activities of all intelligence
agencies while modifying the Hughes-Ryan provisions that require reporting
special activities to numerous congressional committees.
The debate over the Foreign Intelligence Surveillance Act, the Intelligence
Charter, and the Hughes-Ryan amendment concerns the scope of congressional
oversight of intelligence activities. From the FBI's point of view, whether there
should be a legislative charter and oversight of our activities has been largely
settled: we think participation by the legislature in defining the FBI's powers and
responsibilities in intelligence and counterintelligence is appropriate. We accept
the principle of a charter and for the most part supported the charter provisions
applying to us in the proposed National Intelligence Act of 1980. One important
benefit from this kind of legislation is that we could proceed with our work,
confident that we would be acting within a defined, publicly approved
framework.
We also accept the need for oversight. Congress should be able to monitor
whether we are meeting the responsibilities assigned to us and how funds allotted
to us are used. I believe our relationship with the two congressional intelligence
committees is good, and I foresee no change in this relationship.
The third issue I want to mention this afternoon concerns the delicate
balance between the authority intelligence agencies like the FBI need in order to
be effective and the limitations we must shoulder in order to preserve the
individual liberties of American citizens. Inevitably, there is some tension
between these two important goals. For a number of reasons, however, we
believe that these two principles can and, indeed, are being accommodated.
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First, the FBI operates under Executive Order 12036. This Presidential
Order provides that intelligence activities "should be responsive to legitimate
governmental needs and must be conducted in a manner that preserves and
respects established concepts of privacy and civil liberties." This principle is
realized in specific provisions requiring checks and controls on the use of
sensitive investigative techniques. We have found these controls entirely
workable.
Second, our agents operate under the Attorney General's foreign counter-
intelligence guidelines, which govern the manner in which we may conduct
investigations. Changing these guidelines requires both approval by the Attorney
General and review by the congressional oversight committees. But even with
these procedural safeguards in place, the guidelines' framework provides enough
flexibility to ensure operational effectiveness. If amendments are necessary,
they will occur. Thus, just this spring, the guidelines were revised and updated to
meet current intelligence needs and problems, particularly with respect to the
operation of double agents.
Third, when changes are made--including restrictions on our authority--we
ensure that they are followed by our foreign counterintelligence personnel.
Regularly, our agents return to Washington to discuss new legislation and
revisions in policy or guidelines that affect foreign counterintelligence work.
The FBI well understands the potential tension between individual rights and
effective counterintelligence, and we will respect controls designed to preserve a
proper balance between those interests. Our experience in criminal investiga-
tions, which have long been conducted within court-defined boundaries, enables
us to adjust to controls in the intelligence area without sacrificing the ability to
do the job the people expect. In 1975, former Attorney General Levi, who is here
today, cited this as a reason why counterintelligence responsibilities should be
left in our hands rather than with an agency with only an intelligence assignment.
I believe our record under the Attorney General's guidelines, the Executive
Order, and the Foreign Intelligence Surveillance Act strongly justifies his
position.
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Finally, I would like to address a few of the issues raised during the
congressional debate over the proposed National Intelligence act of 1980--the so-
called Intelligence Charter. But before I begin, I must state one caveat. The
prognosis for passage of the intelligence charter in this session is, as you well
know, unpromising. Nevertheless, since the oversight bill that was passed by the
Senate did not resolve many of the controversial issues raised during the Charter
debate and since those issues are still important and still unresolved, I will
discuss them briefly here.
One crucial unresolved issue arising out of Charter discussions is the
threshold that must be met before the FBI may investigate Americans possibly
involved in clandestine foreign intelligence activities. Our view is that
counterintelligence investigations should be permitted when there are facts or
circumstances to indicate clandestine intelligence activity by an individual in
behalf of a foreign power or an international terrorist organization. Notice that
this standard is triggered by clandestine intelligence activity rather than an
identifiable criminal act. This is because counterintelligence, by definition, is
the detection and prevention of espionage and other clandestine activities of
foreign powers. Since, initially, many foreign intelligence activities may not
involve violations of law, detection of foreign intelligence efforts often requires
relatively broad investigations. Thus, although the proposed FBI charter for
criminal investigations requires a specific violation of law, or at least reasonable
potential for such a violation, before an investigation may be commenced, such a
threshold for the initiation of a counterintelligence investigation is unacceptable.
Of course, we agree that there must be a higher standard for the use of a highly
intrusive technique, such as electronic surveillance, against an American citizen.
Another unresolved issue is whether the FBI should initiate an investigation
of an individual, such as a lobbyist, who acts legitimately as an agent of a foreign
power. The lobbyist may be involved in protected political activity. Should we
collect information about this activity in order to investigate suspected
clandestine intelligence efforts? The charter addresses this issue by establishing
a higher degree of Department of Justice oversight. We would be required to
report to the Attorney General the likelihood of a significant intrusion into
political or religious activity in any such investigation.
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A third, very difficult issue is whether we should investigate persons who
have been targeted by a foreign intelligence service. On the one hand, such an
inquiry of an individual whom we believe is a target may enable us to determine
the interests and intentions of the foreign power. On the other hand, one could
argue that any intrusion is too great when we are dealing with an innocent
person. I believe that it is necessary for the FBI to have the authority to conduct
an inquiry to determine the nature of the interest of a foreign power in an
American. Provisions similar to those in the proposed Intelligence Charter,
which permit such an inquiry, but subject it to Attorney General oversight,
should be sufficient to assure the American public that our actions are both
necessary and proper.
Another unresolved issue is whether the FBI should have authority to
investigate past activities of foreign intelligence services. Some of the drafts of
the proposed charter did not make allowances for such investigations. Our
experience is that investigation of these foreign intelligence operations can be
important in determining both the extent of damage to the United States and the
nature of foreign intelligence operations. We would like to see this ability
included when this legislation is next introduced.
Another controversial and important issue is the need for amendments to the
disclosure requirements of the Freedom of Information Act. Today, citizens of
hostile foreign countries are entitled to request and receive materials under the
Act. As a result, foreign intelligence agencies are using the Freedom of
Information Act to obtain information about the United States.
Of course, there are provisions in the law permitting information to be
withheld--classified documents and data which directly disclose the identity of
an informant, for example. Unfortunately, however, a knowledgeable reviewer--
and foreign intelligence agents tend to be knowledgeable--can deduce highly
classified government secrets from seemingly innocuous information.
In June 1979, I furnished to members of congressional oversight committees
who indicated an interest suggestions for amendments to the Freedom of
Information Act. Changes I proposed included: (I) making permissive rather
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than mandatory, Freedom of Information Act disclosure to felons and foreign
citizens; (2) exempting from disclosure requirements records relating to foreign
intelligence or counterintelligence; and (3) protecting certain specified sources
of information, such as cooperating friendly foreign governments. These and
other proposals are being studied by the Department of Justice, which is
preparing administration amendments to the Freedom of Information Act.
Many of these issues and others, such as the use of academics, clergymen,
and journalists to collect information, will be debated in Congress again. When
they are, discussion will almost certainly focus on how to balance civil liberties
against the need for intelligence gathering. Obviously, the FBI believes
intelligence gathering is indispensable. We believe our counterintelligence
program is critical to the national security. We also understand, however, the
importance of protecting the privacy and civil liberties of our citizens. In
deciding how our counterintelligence program should be run, these principles may
collide, and difficult choices will have to be made.
The public should be aware of what these choices are. They also should have
a full and realistic appreciation of the validity and importance of each. The
dialogue and discussion about intelligence work begun several years ago and
continued here today can contribute to this understanding. I am confident that,
as a Nation, we are capable of making decisions about intelligence and
counterintelligence that serve both our interest in national security and in civil
liberty.
Morris Leibman
Judge, its that kind of talk and your kind of integrity that gives us hope and
confidence in the future. Before we adjourn to the courtroom, I want to pay
special thanks of your people who have been very helpful and cooperative with us
over the last year and a half and have helped educate me. Ken Bass, who helped
get me started in part of this is here, and also Spencer Kimball is here from the
American Bar Foundation. Spencer helped us do some of our original research.
Thanks to you all and thank you again, Judge.
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III. THE CONGRESSIONAL ROLE
Welcome: Morris Leibman
Chairman, Standing Committee
on Law and National Security, ABA
The thing I deeply resent is people who frequently make remarks about
substitutions. We don't have any substitutions. Mike Uhlmann was not a
substitute for Bob Bork. Mike Uhlmann is one of our regular consultants. Bob
Bork is a member of the Committee, has worked very faithfully and is only not
here because of personal problems. So we always have surrogates who are in the
wings but are really part of the operation from the beginning. And in today's
situation we have several of those last minute changes. One of them is we
finally got Phil Kurland to come here. I used to have time, before I was
Chairman of this Committee, to lunch with Phil about once a month and keep up
to date with the law. But my duties and his extensive duties have interfered, so
we're delighted to have you here, Phil.
I want to say a special word, before Charlie does all the introductions, to
Congressman Mazzoli who worked on the markup on the bill until about five
o'clock last evening and then flew in on the Redeye Special to be with us, and we
particularly appreciate it. Charlie Ablard has been one of our great supporters, a
great help to me over many years and particularly to the Department of the
Army. He was the General Counsel of the Army. He also served with the
Department of Justice. He is today a member of the International Broadcasting
Board, Radio Free Europe, and Radio Liberty. He's a distinguished private
practitioner, one of our great supporters, and you're in his hands for the rest of
the afternoon.
Moderator: Mr. Charles Ablard
Member, International Broadcasting Board
This afternoon's topic is really what we've been talking about, I think, since
last night's after dinner talk by Frank Carlucci; it's the congressional role and, to
put it in military terms, the roles and missions of the Congress in this problem.
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No one has told a story yet today, and I'll tell a brief one because I think it
illustrates some of the difficulties in certitude. We saw an example of the lack
of certitude, I think, in the last panel's questions and answers in the last few
minutes. This is one of my favorite stories about H. L. Mencken, my favorite
author.
Mencken was apparently covering the 1920 Democratic Convention in New
York, the great long one, as you remember, that went to 102 ballots. And on the
last evening he filed a story with the Baltimore Sun from New York which
concluded with the statement: "Of one thing we can be certain--John W. Davis
will not be the nominee of this convention." Well, as you remember, about three
o'clock that morning John W. Davis was nominated. Whereupon Mencken,
realizing that the papers were about to hit the streets in Baltimore, turned to
one of his colleagues and said, "I hope those jackasses in Baltimore have sense
enough to strike the not." That also, I think, illustrates the need to have a few
post hoc corrective devices.
Congressman Ashbrook could not be with us here this afternoon but has
asked Herb Romerstein, who is a staff member of the Select Committee, to
present some remarks which he wanted especially to have for this group. And I'd
like to ask Herb if he would come forward at this point and do that before we get
directly into the panel and I think this will have some great relevance toward the
consideration of the panel this afternoon. Herb is a staff member of the Select
Committee and was formerly also a staff member of the Internal Security
Committee.
Herb Romerstein
Staff Member, Select Committee
Ladies and gentlemen, this is indeed an appropriate time to discuss the
congressional role in the intelligence process, because really it has changed
substantially in the past decade. If you look back ten years ago or twenty or
thirty years ago, you would see basically the some thing--an intelligence
community responsive to the President of the United States, a few chairmen of
congressional committees having whispered in their ear some interesting tidbits
but no real oversight of intelligence activities.
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Beginning in the early 1970s, revelations of intelligence activities became
more and more frequent, culminating in the establishment of House and Senate
committees to investigate the activities of the intelligence agencies. Some of
the information revealed abuses. Such things as drug experimentation. But for
the most part the allegations were blown out of context; minor matters became
opportunities for press and congressional hysteria. Senator Frank Church,
Chairman of the Senate Intelligence Committee, accused the CIA of being a
rogue elephant; presumably it was out of control. In fact, it was the opposite of
that. It was an agency run by the President of the United States and responsive
to his needs and instructions. If they did anything wrong, they did the wrong, if
it was wrong, on the instructions of the President. They were certainly not rogue
elephants. And unfortunately there was no opportunity for Congress to pay any
substantial amount of attention to the activites of the intelligence agencies and
to determine for themselves whether these activities were right, wrong, or
indifferent.
Unfortunately, Congress' entry into the intelligence oversight field resulted
in headline hunting, leaked highly classified information, and caused a substantial
amount of damage. For example, in the foreign field, the area of CIA
responsibility, damage was done to the collection capabilities of CIA in the area
of human intelligence, the information provided by human beings in various parts
of the world. Foreign nationals who supplied information to the CIA were
reluctant to supply it if their identities might be known or if a leak would
identify them and endanger their lives or their safety. Foreign intelligence
services that cooperated with the CIA were reluctant to continue to cooperate if
that relationship might become known or if the information that could be picked
up every day in the major newspapers might identify their sources and endanger
them. CIA personnel who had worked for years building relationships with
foreign services and with foreign individuals to provide them with information
resigned or retired because they saw the work of so many years collapsing around
them. And this is not to downgrade in any way the importance of technical
collection systems. But it's become a truism to say that a technical collection
system can tell you the adversary's capability but only a human being can tell you
what he intends to do with that capability.
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And within the United States the same kind of a problem developed. As a
result of the activities conducted against the Federal Bureau of Investigation,
the human beings who provided the FBI with information--both in the counter-
intelligence field and in the domestic security field--began losing confidence in
the ability of the FBI to protect them. An extensive report was provided the
Congress, as mentioned by Director Webster before, on case after case of people,
some of them informants, some of them people who were being interviewed by
the FBI, who refused to provide information because they felt that their
identities could not be kept secret. In this case, the Director was talking about
problems with the Freedom of Information Act. But certainly the leaks and
other such problems contributed to the perception that if you're going to risk
your life giving information to the FBI, you had better take some serious
precautions.
As a matter of fact, Congress has now perhaps a different attitude towards
our intelligence agencies. There is more interest in rebuilding the agencies, in
giving them the tools that they need to do their job. There's more attention
being paid to the mission of the agencies instead of paying attention to the real
or fancied abuses of the past. For example, the House Intelligence Committee in
its authorization report this year, all of the members agreed (and I give you a
direct quote), they called attention to the "continued reduction in the number of
informants that are vital to the prevention and neutralization of terrorist
activities." And the Committee recommended that the FBI place increased
emphasis on the counterterrorism program in fiscal year 1981 and to report to
the Committee any problems it may be facing that could hamper the program's
effectiveness.
In additional views by two of the Committee members, Congressman
Ashbrook and Congressman McClory, they specifically pointed to the Attorney
General's domestic security guidelines of 1976 as one of the factors hampering
the development of an effective FBI counterterrorism program. The number of
informants has decreased from a thousand to a handful.
As hostile intelligence services in the past have utilized individuals in the
United States who were involved in subversive or violence prone groups, either
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for collection purposes or for terrorism, the decline of the FBI's domestic
security program has also had some impact on the FBI's foreign counter-
intelligence program. This is not to say that the FBI is not doing a remarkable
job with the resources available to it. The Hermann case that Director Webster
referred to before is a very, very significant breakthrough where the FBI
identified and made an American agent out of a Soviet deep cover agent who had
an assignment as a "sleeper agent." He was supposed to take over Soviet
intelligence operations here, if they lost the ability to utilize the intelligence
officers that have their cover in the embassies and at the Soviet U.N. mission.
This man was identified, turned by the FBI, and run by the FBI against the Soviet
intelligence service and was a very, very remarkable achievement by the Bureau.
It was downplayed by the press, unfortunately.
What is Congress doing now, is really the next question; and Congress is
doing a number of things. One is the widespread desire in Congress to reduce the
number of committees that the CIA has to report covert actions to from eight
committees to two. This is so widely agreed to in Congress that, when there was
a vote a few weeks ago on the Zablocki amendment, the vote was 325 to 50 for
Mr. Zablocki's amendment to reduce the reporting to two committees. There are
some disagreements within Congress as to how that should take place or to what
extent prior notice has to be given to the Congress for these activities. But
certainly there is almost, I couldn't say unanimous if fifty voted against it, but
there is very, very widespread agreement that this must be done.
There is widespread agreement that we need a names of agents bill. Now
what we're talking about here is a law that will punish those who release or
reveal the identities of American intelligence officers, agents, assets, informants
and of course this has been called colloquially "the Agee bill" for Philip Agee.
There is strong feeling that it should cover much more than just Agee, a
renegade CIA officer; it should also cover those who specifically wish to do harm
to the American intelligence agencies by identifying the officers and the agents
of American intelligence. There is discussion in Congress again--this is not as
widespread or agreed to as widespread as the other things--of amending the
Freedom of Information Act to protect that information which the CIA would not
be turning over under FOIA anyway but which they now have to search the files
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for, put together in one place, and perhaps give a judge the opportunity to look at
and determine whether it should be released. This is information that's protected
under the law or should be protected under the law in any event.
So there are these things happening in Congress. There is much more desire
to do something to rebuild the intelligence community than there is to tear it
down. But this doesn't mean that Congress is not going to want to take a long,
hard look at the things that the CIA and that the FBI do. They should be able to.
We don't want the situation as in the past where a few people have the
information and this is not passed on to the rest of Congress.
Let me just conclude by saying that yesterday the House Intelligence
Committee marked up an oversight bill. That bill requires more reporting to
Congress than some of our members agreed to. The report was reported out as
an 8 to 6. The six that voted against the bill were the five Republicans and one
Democrat, Mr. Zablocki, but everybody in the room agreed that the next step is
the names of agents bill. We must protect the identity of the sources and the
intelligence officers overseas and I think that we're going to be proceeding with
that as the next point on the agenda. Thank you very much.
Charles Ablard
Thank you very much, Herb, for delivering those views from Congressman
Ashbrook. Now from that some committee, the Select Committee on
Intelligence, we are very privileged to have with us Congressman Ron Mazzoli,
who is an eight-year veteran of the Congress representing the district
surrounding Louisville in Kentucky, and we're very pleased to have him with us
today. He is a graduate of Notre Dame and the University of Louisville Law
School. Congressman Mazzoli.
Representative Ron Mazzoli
House Permanent Select Committee
on Intelligence
Thank you very much, Charlie, and ladies and gentlemen. Thank you very
much for the introduction and permitting me to take part in these meetings. I
have sat here during the morning and I feel, and I think probably rightly,
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somewhat intimidated by the quality of the people. I think that this is a situation
where it's been once said, I have a great deal to be modest about in view of
modest talents. By whatever stroke of fate or fortune, I wound up on the
Intelligence Committee and perhaps have had some opportunity to develop
insights which I have gathered in my three years of service on that Committee,
and my ten years of service in the Congress. I also serve on the Judiciary which
has, of course, a connection with the Intelligence Committee.
Let me make mention of just a few things. I certainly did not have a chance
to prepare the remarks which I would have with a little more advance notice, but
let me give you some observations which perhaps I've gained from sitting in the
audience this morning. One of our speakers this morning said that the activities
which we're speaking about today, that is, the congressional oversight, have been
driven primarily by intelligence failures. The speaker suggested that the 1947
Act was driven by the failures of intelligence to perceive the coming of Pearl
Harbor and the activities in the seventies were driven by other types of
revelations. That may be true, probably is true, and I think may be somewhat
unfortunate. The problem we're seeing today--these shifting sands of public
opinion and the erosion of support for certain aspects of congressional
oversight--suggest something very important to me. If we who believe, and I do,
in the proposition that there is a proper role for Congress in the oversight of the
activities of the intelligence community, and if we are to proceed to draft the
right kinds of legislation, then it seems to me that they have to be founded on
something other than anger or outrage, however righteous that might be, with
respect to past misdeeds. It has to be crafted on the basis of constitutional
matters and, again, the panel this morning or both of them talked to the points in
the Constitution. It seems to me if we're to have any opportunity to put the
legislation on paper which will be correctly viewed and correctly applied it has to
be based on the Constitution and not upon this feeling, however correctly
derived, that there is something wrong about the intelligence communities. I
think there is probably a relatively small number of people in the Congress who
believe that there's something inherently wrong with covert action or believe
that there ought not to be covert action. I think the majority of us feel that
under certain circumstances there is a need for covert action and it's a question
of how those actions will come to pass.
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I began on the Committee when it was formed by Speaker O'Neill, and I can
tell you, on the basis of three years of observation on the inside of the
Committee, that it is a serious-minded Committee which I think any of you and
many have appeared before it would agree but, furthermore, I think there's been
improvement in the relationship between the Committee. I think many of you
who have appeared before it would agree. Furthermore, I think there's been an
improvement in the relationship between the Committees, and I think by
extension, between the Congress and the Executive Branch of government and
the intelligence community. I've said many times that I'm sure it must have been
extremely disquieting and concerning to members of the intelligence community
to first walk into that room when the Committee was just formed and have to sit
there and speak of these profound and dangerous and sensitive activities, and to
speak about them in candid terms and to make these statements in rooms where
people are walking in and out and phone calls and messages are being taken and
distributed with the certain amount of chaos which attends even Executive
Session meetings. I think at the same time that over this period of three years,
most members of the intelligence community agree with the premise that those
two committees at least have maintained the sensitivity and maintained the
confidence of the information given them. There have been no leaks attributed
to our two committees. Despite what sometimes appears to be a somewhat
careless attitude just simply because there is a certain amount of movement in
the room, the members of the Committee and the staff have done a good job in
handling this kind of information.
One other thing that hasn't been mentioned much today, which I think ought
to be mentioned, is that a considerable amount of the attention of our
Committee and the Senate Committee has been the quality of the intelligence
information. The question which was first discussed was not just how much
should be revealed to us in regard to the covert actions and the other more sexy,
I guess you'd call it, topics. But the question which was first discussed, I guess,
by the Pike Committee, is now a considerable part of our work. That is, what is
the quality of the intelligence estimates that we get? What is the quality of the
appraisals of the enemy's activities? What is the cost effectiveness of our
intelligence service? I think in the years ahead we'll see more of that kind of
information and that sort of questioning coming from our two committees. And I
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think these questions reflect the nature of oversight in a more classical sense.
Basically, how much is the taxpayer being asked to pay and how much is the
taxpayer getting for that tax dollar spent.
As Mr. Romerstein said just a moment ago, the House Committee did report
a version of the Hughes-Ryan and Oversight Bill which will go to the floor. The
question, of course, was whether or not it should be attached to the names of
agents bill or whether that should be left separate. The House Committee voted
yesterday to make them separate bills rather than a singular bill. The some way
with the FOIA. There was some tension yesterday. Probably for the first time,
there was a certain amount of division on the Committee, but I believe that when
we did adjourn yesterday, I think there was a resumption of the kind of good
relationship which has existed from the time that that Committee was started,
which is attributed really to Chairman Boland, and I think to the ranking
member, Ken Robinson from the State of Virginia.
One last thing and then I'll turn it over, since I hope we do have time for
questions and answers. This, I believe, would probably be interesting to the
audience. Earlier today, Attorney General Levi made mention of the fact that
he abhorred the vagueness which is in the congressional legislation and the fact
that it is uncertain. We say one thing and maybe mean another, or that there are
some loopholes or unclear areas. I would say only to the Attorney General that
this, of course, is intended by Congress to suggest that it wants information.
There are also areas within which the President as Commander-in-Chief as head
of the Militia, and as the person who is charged with constitutional and profound
responsiblitiy has to take action. I believe our bills are becoming more specific
and, of course, that's causing as many problems as the vague messages which we
have sent in the past. I don't know that there is any answer for this problem, but
it does occur to me that Congress has been wise and I think restrained. I think it
has been entirely proper and correct in trying not to unnecessarily tie the hands
of the President. In the Senate version of Hughes-Ryan, in our version of
Hughes-Ryan, there are specific mentions of the Constitution, sources and
methods, areas within which we do believe the President has certain
responsibilities as head of the Executive intelligence agencies. I would certainly
sympathize with Attorney General Levi as a lawyer and as a trained jurist and as
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a teacher. I'm sure it must be very awkward to look at these words and find
them ambiguous and wish that there could be more certainty as to at what point
does the trap spring on the unsuspecting foot. But I think it has been done
intentionally and I think it has been done correctly.
Let me lastly say that I congratulate the University of Chicago for giving
the space over and the ABA Standing Committee on Law and National Security
for having sponsored these meetings. I think they're very useful. This is my first
opportunity and I hope it's not my last to participate. I think these are very
fruitful. One very last word. Since a lot of compliments have been paid today to
the University of Chicago and for a very good reason since it is an outstanding
intellectual school, I'd like to pay tribute to my alma mater and to Mr. Galvin
who is with us in the audience. He has been extremely helpful to the University
of Notre Dame. Just so that all the plaudits don't go one way, I'd like to pay a
couple of plaudits to him and Mrs. Galvin. Thank you very much.
Charles Ablard
Thank you very much, Congressman, for those insights from your Commit-
tee. Our next speaker brings a different perspective. Professor Ernie Gellhorn,
who served as Senior Counsel to the Rockefeller Commission, is now a professor
of Law at the University of Virginia Law School. He has also taught at Arizona
State and Washington University in the State of Washington. He graduated from
the University of Minnesota Law School. He has done extensive consulting in
Washington on other matters, including the Administrative Conference of the
United States, which Professor Scalia chaired for a number of years. We
welcome you, Ernie Gellhorn.
Professor Ernest Gellhorn
University of Virginia Law School
Former Senior Counsel, Rockefeller Commission
on CIA Activities within the United States
Thank you very much, Charlie. I am in a somewhat awkward position,
assigned as a spokesman on this panel for more intensive oversight by the
Congress. My problem is that I too am often unimpressed by the work of
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Congress. Indeed, I am reminded of the comment made by Mark Twain who
noted, "it could probably be shown by facts and figures that there is no distinctly
native American criminal class, except for Congress." I am also concerned that
not being involved with Congress on a daily basis or intimately familiar with the
proposed legislation, I may either misinterpret it or miss many of the nuances in
the current proposal and the debates. On the other hand, my participation
despite these handicaps is at least no more incongruous than appearing on a
program at the University of Chicago where we are being given two free lunches
and a free dinner. Turning to the topic at hand--legislative oversight of the
intelligence agencies--I propose to discuss three issues.
First, what are the values at stake in legislative oversight? Why is it
desirable? Why might we want even more intensive oversight? Second, and
correlatively, what ore the dangers or mistakes we should be alert to? And third,
applying these standards, how does the Intelligence Oversight Act of 1980 as
proposed, Senate bill 2284, measure up.
The traditional function of legislative oversight, it seems to me, can be
divided into two categories. At its simplest level, it is used to inform Congress
in order that it may legislate effectively, appropriate funds wisely, assure that
directives are being carried out and even to make basic policy reflecting the
normative values of the voters. A second function is to inform the public in
connection with the need for legislation or the need for no further legislation.
There are, however, special considerations applicable to intelligence
oversight which suggest that a special standard be applied in determining the
appropriate scope and reach of legislative review in this area. One issue is the
problem of secrecy; another is the question of sensitivity. On secrecy, Congress
must deal in the oversight area of intelligence away from the public forum. As a
consequence, it must act often as a surrogate for the public; it cannot prudently
air all its disagreements in public. In the some vein, note must be taken of the
fact that the issues at stake involve delicate and significant questions of national
security, foreign affairs, and defense.
The delicacy of the area of intelligence agency action imposes several
constraints on effective legislative oversight. One is that the legislative ability
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to check on the performance of the Executive--on the reliability of the data as
well as its utility--is perhaps even more limited than in other areas. On the
other hand, there may as a consequence be a special value in legislative oversight
that is otherwise overlooked--namely, its in terrorem effect. Merely having to
report information to the Congress will, I suggest, affect the behavior of the
agency. For that which cannot be justified will be difficult to report and
therefore perhaps difficult to plan, engage in, and perform. As a related matter,
the effectiveness of legislative oversight can be seen as perhaps checking the
isolation of agencies which operate in a compartmentalized, secret manner. This
great secrecy may be necessary because of the data with which they deal. But
there is a tendency, as suggested by subsequent reviews of the Bay of Pigs
adventure, that intelligence bureaus will persuade each other of the desirability
and value of a particular project because of the lack of outside oversight. And
here it seems to me that effective oversight by the Congress, and in particular
by individual committees, can serve as a healthy check on the isolation
necessarily imposed on those who participate in executing as well as designing
policy. One final function of oversight, very useful to the agencies themselves,
is that once information is reported to Congress and its oversight committees
and they accept it, the Congress is then placed in the position of having approved
it, of being on board as members of the team. This can be of inestimable value
to the Executive agency; it also poses a danger to Congress.
Moving to the second area--the potential dangers or mistakes that can arise
from increased legislative oversight--serious pitfalls are again present. It seems
to me that they really fall into two categories. One problem would be the
attempt by Congress to make policy even when not writing legislation. Here the
temptation is very strong, and the history in Congress is that as soon as it
develops expertise in an area, it also steps in to demonstrate its new-found
knowledge. Questions of policy in intelligence are issues on which there are no
certain answers. Thus, there will be strong pressure from the oversight
committees to move beyond their appropriate role of acting as a check on
Executive policy in seeking to develop that policy. This is, I believe, outside of
the legislative role where policy making is both appropriate and necessary.
The second area is the problem of disclosure, of leaks. The harm here, it
seems to me, is one that we have heard mentioned frequently today and
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yesterday evening, that we may endanger policy as well as national security, that
individual agent's lives may be at stake, and that the ability to acquire
intelligence will be impaired especially where it is dependent on the cooperation
of other governments. It is difficult, of course, to estimate the significance of
these dangers. By this I do not mean to suggest that they cannot be important.
There is, however, a tendency to overstate them, particularly in connection with
greater legislative oversight. The past evidence of possible abuse by Congress of
the revelation of sensitive information provided to its committees is quite slim,
particularly when compared with the leaks, intentional or otherwise, by the
Executive Branch. We can all recall when the President of the United States, in
private discussion with newspaper editors, informed them of efforts by the CIA
and other agencies apparently to engage in foreign assassinations. That was not,
it seemed at the time at least, to be a deliberate leak, but it was in any case a
very damaging one. Still the danger is present and this illustration may suggest
only that this is an area in which it takes the Executive Branch to make the
Congress look good.
The next question is how the proposed intelligence act measures up to these
concerns and questions. To assure that we all start from the same foundation, I
will outline its provisions briefly. It consolidates the primary oversight
responsibility into one committee for each House while retaining reporting
responsibilities by the agencies to other committees. Second, it requires that
information on intelligence activities, including significant activities which are
as yet only anticipated, be given to these committees by timely reports except
where the President determines that extraordinary circumstances affecting vital
United States interests limit what should be reported. In the later case, the
President is obliged to make a report to eight members of Congress, including
the leadership of the House and the Senate as well as the ranking Majority and
Minority members of the Senate and House intelligence committees. Full access
to agency file information is to be given by the intelligence agencies to the
Congress. Timely reports of illegal intelligence activity is separately required in
order to inform Congress about covert actions not otherwise reported and to give
reasons why advance notice was not provided. And finally, the Act admonishes
the President and the committees to establish procedures for implementing this
oversight for each House, and for each House to establish rules on unauthorized
disclosure.
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Basically, it seems to me, that this proposal reflects a reasonable and
realistic accommodation of both the desirability of legislative oversight and the
inherent dangers presented by outside review in this particularly sensitive area.
It includes a recognition of the special rules necessary for intelligence oversight.
The act would limit the number of committees involved in oversight, a sensible
reduction in the burden of making reports. It would require reports of
information; this is primarily a codification of current practice. The act also
recognizes that merely reporting information is not sufficient; and that access to
information can be critical--not to rummage through the files of the agencies,
but to get information so as to check on an agency's activities. And finally, the
proposed act contains an express provision that Congress is not to approve or
disapprove intelligence actions, but merely to be informed. There is, in other
words, recognition of the proper limits of committee in contrast to congressional
oversight (i.e., by legislation).
Despite these acknowledged strengths, I would contend that this legislation
is not a perfect solution. Let me identify a few problems. The first is that the
act would only provide a framework and thereby set an atmosphere; it would not
assure cooperation. Thus, its effectiveness will ultimately depend, as others
have indicated, on the President and the Congress and on their willingness to
work together. Structure cannot overcome the adequacies or inadequacies of
personnel. One other potential problem is the absence of any sanction in the bill
for noncompliance. For example, no penalties are created to assure observance
of reporting requirements, file access, or disclosure. This raises some doubts
about the meaning of the legislation and its purpose. I would suggest that if
there is a strong commitment by the Executive Branch, as indicated earlier
today, as well as by the Congress to live with these provisions, then sanctions or
enforcement mechanisms would be appropriate. Certainly there ought to be an
enforcement mechanism in connection with unauthorized disclosure. The House
and the Senate are, according to the legislation, to develop rules and procedures
to ensure that information is not improperly disclosed. It seems to me that such
protections should be included in the legislation or otherwise approved by each
House in advance of any adoption of statutory disclosure requirements. These
should be in place as active preconditions on the disclosure of sensitive
information by the Executive to the Legislative Branch.
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Likewise, the issue of file access is not adequately defined or addressed by
the bill. In the Executive department, the disclosure of sensitive information is
normally made on a need-to-know basis. Applying that standard to the
Legislative, however, would mean that everything in the Executive Branch
potentially could be asked for by the Congress. That seems to me highly
inappropriate, and I would suggest that there is a need here to develop a
mechanism to shoot with a rifle. It might be useful, for example, to identify the
kinds of information that would be appropriately revealed. Information of past
activities, for example, should be more readily disclosed than information of
future plans or information of ongoing operations.
Finally, in connection with the specifics of the legislation, I would suggest
that the provision requiring the Executive to report on intelligence failures is, to
be blunt, silly. It is a meaningless, unenforceable, inappropriate gesture. What is
an intelligence failure to the Congress may be an intelligence success to the
Executive. When General Westmoreland could describe the Tet Offensive a few
years ago as a great success for the United States, and mean it, it seems to me
that any intelligence operation could be described as a success. It is, in other
words, one provision that is unlikely ever to be of value and to include it demeans
the process; it does not inform Congress on what the purpose of this oversight is
and does not aid its function. I am similarly skeptical about requiring the
intelligence agencies to report illegal activities.
Despite the fact that I would urge intensive legislative oversight and a
repair of provisions in the bill, I want to be clearly understood as suggesting that
legislative oversight, particularly if done by committee, ought to be carefully
limited to checking on the performance of the agency and to informing the
Congress. Except by following the prescribed constitutional route, we should not
increase the opportunities for the Legislative Branch to perform a policy-making
role. Otherwise, we may be merely substituting error for chance. Thank you.
Charles Ablard
Thank you very much, Ernie, for that analysis. I should say that Ernie may
have to leave before the meeting concludes this afternoon so be thinking of some
questions to fire at him first when we get into the question period.
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Our next speaker brings the perspective from the Executive Branch,
specifically from the CIA. Fred Hitz is the Legislative Counsel to CIA. Prior to
that, when I first knew him, he was the Deputy Assistant Secretary of Defense
for Legislative Matters handling the Senate, in which position he did a superb job.
He has been at the CIA for the last four years. He also, I should add, is a
neighbor of mine living on the some block with me and he goes to work early in
the morning and gets home late at night. But he can be seen any time between
five and six in the morning jogging around the block. I'm delighted to have Fred
with us here today. He's a graduate of Princeton and the Harvard Law School;
and practiced law before he went to the Defense Department. Fred, let's have
the perspective from the CIA.
Mr. Frederick P. Hitz
Legislative Counsel
Central Intelligence Agency
Thanks, Charlie. I will repeat what all the other speakers have said, that it
is a pleasure to be here and to participate in this program. I have just returned
from a trip to Europe with our General Counsel, Dan Silver. Aside from absolute
shock at the prices we encountered there for everything from food to
transportation, it was good to be removed for several weeks from the atmosphere
of Washington and from the daily to and fro of my job in Congressional Liaison.
The respite allowed me to again focus on the fact that I have rather unique
responsibilities in the world of intelligence. To put a fine point on it, in
discussing with some friendly governments the function of legislative liaison for
intelligence, eyebrows tilted to the ceiling and stares grew considerably sharper.
I could also feel them asking, "Why on earth does a secret intelligence service or
an Intelligence Community need legislative liaison?" Moving from this point of
departure, let me try to pick up on some of the themes that I think Frank
Carlucci presented in his remarks last night and which were also presented to a
certain extent by Judge Webster in his remarks this noon. We must focus on the
common objective of this exercise, which is the realization that the United
States requires at this time in our history the best possible intelligence that we
can gather, analyze, and disseminate. Our legislative efforts in crafting an
Intelligence Oversight Act of 1980 must further this objective or our efforts are
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not worth a candle. Let me quickly add that the Administration, the Director of
Central Intelligence, Stan Turner, and the CIA have taken a position in strong
support of an Intelligence Oversight Act. I think we are on the way towards
working out some of the few remaining problems. I certainly hope so, because I
think it is critical that we establish in statute the relationship between the
Executive Branch and the Congress as it concerns oversight of the Intelligence
Community. The issues raised by the Church Committee in its investigations,
final report and recommendations should be settled in statute so that we can get
on to what I think are other critical aspects of the relations between the
Intelligence Community, the Congress, th U.S. Government generally, and the
American people.
Giving you an idea of some of the things which our office works on will bring
us back to the statements of Herb Romerstein and Congressman Mazzoli. We are
very anxious to encourage what I call the positive aspects of oversight. I think
the Senate and House Intelligence Committees and the Senate and the House
Appropriations Committees are going down this road to a greater degree each
year. Let me give you some specific examples. Last year an educational travel
benefit was included in the Intelligence Authorization Bill. It provides the same
benefits for CIA personnel abroad that are already available to their State
Department colleagues. Likewise, we hope that this year the Intelligence
Authorization Bill will include a death gratuity provision (heaven forbid that it
will be needed for any of our officers) which parallels the benefits that, once
again, are already available to State Department officers serving abroad. It is
also pretty clear to me at this juncture in the legislative process that the
oversight and appropriations committees will add new positions needed by the
CIA in some areas which, quite frankly, the President's budget did not include. In
the wake of the Soviet Union's invasion of Afghanistan, these positions are
required as the United States increases its need for, and its perception of its
need for, intelligence.
My office, the Office of Legislative Counsel, also works in support of the
National Foreign Intelligence Program budget. This, too, seemed to be rather a
surprise for our allied interlocutors on this trip. They are used to submitting a
budget for their needs and finding it pretty much fully funded. I welcome the
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situation that exists here since it requires us to do a thorough job if establishing
our priorities and justifying our needs. I think by and large the Congress has been
more interested in giving us resource support for intelligence in the last couple
of years. Likewise, OMB has been more interested in approving our requests as
well as those for defense. We appreciate the widespread recognition of the
usefulness and importance of our function.
I might say that with respect to the finished intelligence product (a term we
use to indicate analytical intelligence reports compiled from all sources of
intelligence), the needs of certain congressional committees for these reports has
never been greater. For example, we provided classified briefings to the Senate
Energy Committee on the geopolitics of oil this year. These briefings dealt with
the political situation in the Arabian peninsula and the Persian Gulf and gave the
Committee some estimate as to future Soviet oil needs. This helped the
Committee pull together its thinking as it confronts the problems of solving U.S.
domestic energy requirements in the years ahead. I think we are going to see
more requests from Committees for the kind of objective reporting and analysis
we are known for. In this vein, the Director of Central Intelligence testified
before the Senate Budget Committee this year. This was the first time a DCI
has done so.
An additional function of the congressional oversight committees, which has
also been referred to several times today, is a very helpful concern about the
quality of our intelligence product and our effectiveness as an organization. I
suggest that once we are able to settle the concerns which the Intelligence
Oversight Act of 1980 is meant to allay, interest as to whether we have the
resources to do our job and whether we are producing the intelligence which the
United States needs, will become paramount. This will be very helpful to the
Executive Branch.
I would say in response to Professor Gellhorn's concern as to whether in the
context of the Intelligence Oversight Act there are any sanctions for miscon-
struing or disobeying any of the injunctions therein, one must not forget that the
Congress has the ultimate power over the Executive Branch, the power of the
purse. I can assure you that it is perfectly clear to us that if we are not
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forthcoming with the information Congress is interested in, that power of the
purse may well be exercised.
I would like to finish by making two points with respect to the legislation the
Congress is now considering. It is perfectly clear from my trip that two issues
are uppermost in the minds of CIA personnel abroad--the protection of agent
identities and leaks of classified information. It is just incomprehensible for CIA
personnel to understand why the Congress either has not been able to act or will
not act. The simple question: What is happening? Are the American people
going to wait for another Welch assassination before they see the need to move?
Some of the formulations for the proposed legislation to protect agent identities
are controversial. We recognize that there are valid First Amendment questions.
Nevertheless, we feel strongly that we, in participation with the oversight
committees, have succeeded in drafting a bill that answers these questions and is
not objectionable under the First Amendment. The fact that an individual must
have the intent to "impede and impair" is a fundamental requirement before a
criminal prosecution can be brought. The Justice Department's view, which is
now the Administration's position, is also a perfectly acceptable formulation to
us. It seems to me that no society can tolerate a situation where revealing the
names of intelligence personnel is held out as a social good, which is the present
contention of those who are revealing these names. We found unanimous feeling
that protection ought to be forthcoming in this area quickly.
Intelligence officers in the field are extremely concerned as to what is going
on in Washington with respect to leaks of classified information. Is there nothing
that can be done to prevent this wholesale hemorrhaging of classified
information which we have experienced over the past six months? It was very
hard to explain why it is that the espionage statutes do not quite do the job, and
why it is that the CIA cannot investigate these leaks. We are getting a great
deal of encouragement from the Congress to more vigorously prosecute these
cases.
Let me as my final comment talk about the question of Intelligence
Charters. It seems to me that we have the clearest mandate possible to settle
the law in this area. We have to make clear in statute what it is that we intend
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to be the rules and guidelines for intelligence collection and then get on with the
business of collecting, analyzing, and disseminating intelligence. This period of
uncertainty, this period of what will be the mood in the United States next year
towards our Intelligence Community, has got to be brought to a salutary
conclusion. There is no reluctance on the part of the Intelligence Community to
contribute to meaningful legislation in this area. We have very strong views as
to the parameters and as to the limits we should be operating under. We think
this matter must be dealt with so that we can get on to the more important
business of revitalizing, strengthening, and providing the resources needed for
a healthy and effective Intelligence Community.
Charles Ablard
Thank you very much, Fred. Our last speaker is uniquely qualified to wrap
up this panel's discussion. Professor Philip Kurland is a Professor of Law at this
University. In addition to being a great constitutional law scholar and author,
specifically within the field of constitutional law, he is one of the renowned
experts, if not the leading expert, on separation of powers. He served for quite a
time back in the mid-1970s, I believe, as Counsel to the Separation of Powers
Subcommittee of the Senate Judiciary Committee. We're very pleased to have
you join us here, Professor Kurland.
Professor Philip Kurland
Professor of Law
University of Chicago Law School
Thank you very much. This, I should say, is the only building in the entire
country where I'm free to contradict Morry Leibman and I'm going to do so.
First, I am hardly a surrogate for Congressman Ashbrook. He wouldn't
appreciate it, nor do I. Second, the only reason I've been co-opted is that they
had a chair to fill and they thought I could fill it adequately. There may be one
other reason. I'm the only member of this faculty, with the exception of Edward
Levi, who has ever been disgraced by working for the Congress as well as the
Executive Branch of the government.
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While waiting to be sent for to come down here, my mail arrived and
included two pieces of, I think, relevant material. The first was the 1980
revision of the Supreme Court rules about which it may be said that an
immediate impact of the 1980 rule revisions concerns the length and color of the
principal printed documents filed with the court. Reflecting an increased
annoyance at having to read excessively long petitions and briefs, the Court has
imposed page limitations for the first time in its history. And the reason that I
think it's relevant is that it expresses an argument which is frequently made in
the context with which we are concerned today, and that is, "Do as we say and
not as we do." I'd like to pass a rule which might put a limit on the length of the
opinions the Supreme Court is rendering.
The other item which appeared in the mail is more clearly appropriate. It's
the report of the Committee on Federal Legislation of the Association of the Bar
of the City of New York on the Charter for the Federal Bureau of Investigation.
It opens by saying, "Over a year ago just before the 96th Congress opened, the
last convicted Watergate conspirator was released from prison. This prompted
the New York Times to editorialize. 'In one sense Watergate will end with his
release; in another sense, the story is far from over. Development of charters
for the CIA, FBI, and other agencies has begun. Some on Capitol Hill say the
public has forgotten Watergate and that the pressure for reform has eased. A
draft FBI charter is now said to be moving forward. If so, and if the spirit
reasonable compromise continues, the end of Watergate may truly be in sight.' 11
Then the report adds, "In recent weeks the FBI has been prominently in the news
again with a disclosure of the number of undercover operations such as the well-
publicized ABSCAM. While it may be premature to draw final conclusions about
these episodes until the facts are clearer, they raise a number of new questions
which any FBI charter should address." The report concludes with a plea for
congressional oversight. "Oversight by the other branches of the federal
government is equally important. Thus, we have stressed our strong conviction
that intrusive investigative techniques should be subject to a warrant require-
ment and that investigative demands if they are to remain in the charter be
subject to court review as they are in the Financial Privacy Act. Congress and
the General Accounting Office also have a role to play and one that we hope they
will continue to take seriously. Congress cannot afford to resume acting as a
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rubber stamp of FBI actions as it so often did in the J. Edgar Hoover era." I
think that the requirement for congressional oversight or the desirability of
congressional oversight has not been denied. It's a question of its scope.
But the arguments that I have encountered seem to be in terms of which
branch of government is more virtuous. So far as I'm concerned virtue is not a
trait that I would associate with either branch of government, the Executive or
the Legislative, and I might add a third. The point that I would like to make is
that the issue is not whether Congress is more likely to leak than the Executive
Branch. I don't know how you would measure that. Certainly history, including
the reports on the President of the United States, might suggest that leaks are
not a monopoly of Congress. Thus, I suggest it is not the essential issue that is
being addressed by a bill which requires or provides for oversight of the FBI and
the CIA. The essential issue is how to appropriately balance the necessity for
national security, which nobody denies, against the necessity for maintaining the
liberties of the individuals in this country which, again, nobody will deny.
The fact of the matter is that nothing epitomizes a totalitarian state more
than a political police force. I do not suggest that either the CIA or the FBI is a
political police force. But I think the primary function of the oversight of
Congress is to be able to assure the American public that this will not be--
neither of them will be--a political police force. The quotation from the
Association of the Bar report opened with a suggestion that we are coming to the
end of the Watergate era. I think we ought not to forget the fears that were
raised by the revelations where the leaks or testimony about the behavior of
certain parties, the FBI and more particularly the CIA, which gave rise to that
kind of a fear. I would suggest that the function of the Congress here is to
provide some guarantees against that danger with as little inhibition on, or as
little adverse effect on, the provisions for national security that we need.
Neither one nor the other of these values can be suggested as occupying the
field.
I would close, because I have no expertise on the subject in spite of my
colleague's strong arm that brought me down here, by a suggestion of shock at a
statement by Professor Gellhorn and by Mr. Hitz which suggests that it is not the
function of Congress to make policy in our government. Indeed, I have been
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brought up--and I have not yet been disabused of the notion that Congress is the
policy-making body so far as our Constitution is concerned. And I would hope
that the Congress does not surrender this power which was put in its hands as
representatives of the people of the United States to oversee the policy of all of
the agencies of the Executive Branch of government, not excluding the CIA and
the FBI. Thank you.
QUESTION PERIOD
The question period following produced discussions including in what detail
Congress should enact intelligence legislation in order to leave scope for the
Executive to handle contingencies unforeseen by the Congress at the time of
enactment, whether the Congress can direct "tactics" by legislation, the need for
statutory authority to do intelligence work, the quality of CIA and FBI
intelligence collection and analysis, and the necessity for and limits upon covert
actions.
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IV. THE PUBLIC'S RIGHT TO KNOW AND THE NEED
FOR OPERATIONAL SECRECY
Welcome: Morris Leibman, Chairman
Standing Committee on Law and
National Security, ABA
Welcome to the last panel discussion. I compliment you all for being so
prompt on this day, and I see Admiral Gallery has joined us. Admiral, you're
going to get two demerits because Maureen was here for dinner and I don't know
about lunch but we missed you on both occasions. Welcome again this morning.
We have a distinguished panel which will be moderated by Mike Uhlmann, whom
you've heard of before in these discussions. Mike came out of Yale and Virginia,
has been a Ford Foundation lecturer, was Minority Staff Director and Chief
Counsel for the Senate Select Committee on Equal Education, has been
Legislative Counsel in the Office of Senator Buckley, Assistant General Counsel
to the FTC, Assistant Attorney General to the Justice Department, and now,
thank goodness, we've got him back in the private practice of law temporarily.
Mike.
Moderator: Mr. Michael Uhlmann
Former Assistant Attorney General
Well, the first thing you should know, Morry, is that nobody ever practices
law temporarily. This morning we turn to the topic of the public's right to know
and the need for operational secrecy, another one of those either/or connundrums
to which these issues we looked at yesterday and today seem to lend themselves.
We have a distinguished group of speakers for you this morning and my role is a
very simple one as Moderator. I believe strongly in moderation in the pursuit of
moderation with one exception, and that is when it comes to time. I've asked the
speakers to limit themselves to roughly twenty minutes apiece, the injunction to
which will be the theme that extremes in the pursuit of moderation will be no
vice. At or about twenty minutes I will wink, nod, pass notes, nudge, and get
obstreporous so that we can open it up to a little more free form.
The topic calls for three or four interrelated subtopics relating variously to
disclosure of agent identities, Freedom of Information Act issues, protection of
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CIA sources and methods, and prepublication clearance agreements. There's a
lot of meat there. The diversity among the speakers' views will become apparent
to you shortly, and so I think without further ado we will begin.
Our first speaker is Daniel B. Silver, who is presently the General Counsel of
the CIA.
Mr. Daniel B. Silver
General Counsel
Central Intelligence Agency
I have to apologize at the outset if my remarks are somewhat rambling. You
have to remember that, in the wake of the Snepp decision, had I prepared a text I
would have had to submit it to myself for review and then negotiate changes. I
chose not to do that and I'm speaking more or less extemporaneously.
The subject matter of this panel covers a congeries of issues, most of which
have been fairly prominent in the headlines recently, including the Freedom of
Information Act, the so-called identities legislation, the Snepp decision itself,
and certain legislative initiatives in the direction of possibly modifying the
Agency's right to enforce its present contract. All of these allegedly pit
something called "the public's right to know" against the need for operational
secrecy. Indeed, that's the title the organizers have given to this session.
Obviously, time isn't going to permit discussing each of these current legislative
proposals in detail, and I think that's a stroke of good fortune for the audience.
But I would like to make some general observations about points, at both the
policy and legal analysis level, that apply across-the-board to all of these.
I think it's particularly appropriate for this organization to take up this
subject matter. My observation is that the level of public discussion on each of
these three issues has been distressingly poor. The subject has been infected
with slogans, shibboleths, and a variety of distortions that do not aid a rational
discussion of the issues. For example, I think any of you who have followed the
congressional hearings on the various so-called identity bills--of which there is
such a proliferation at present that it's a task just to keep track of their subtle
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variations--any of you who have followed that debate will have seen a variety of
allusions to possible constitutional difficulties, putative chilling effects, consti-
tutional doubts, and so forth and so on. Very few have been able to bring
themselves to come out and forthrightly say that any given proposed provision is
flat out unconstitutional or of unassailable constitutional validity. Well, this is a
question that is susceptible of some more penetrating analysis than has been
given so far; and I'm very happy about the indications Ray Waldmann gave
yesterday that at some time in the near future the Committee is going to
undertake a study project in this area. I think this is an example par excellence
of a place where the Bar--bringing the talents of our profession, and, I would
hope a spirit of rational and dispassionate examinations of the problem--can
make a real contribution that so far has not been made.
Now, the second general point I would like to make is that most of the
discussion (and obviously I'm referring in these critical comments to those who
disagree with my position) that I hear takes place in a vacuum that ignores the
events of the last five years. I'll return to this in some detail in a couple of
moments. But I don't think that we can examine these legislative questions and
questions of legal policy in this area without taking some cognizance of the
profound changes in the organizational structure of the intelligence community.
I'm thinking particularly about oversight, both internal and external, and the
relationship of the intelligence agencies to the Congress. A debate, analysis, or
discussion that proceeds entirely in a retrospective vein, I suggest to you, is not
going to produce very useful results.
Three slogans or phrases seem to animate discussion in this area. They are,
first of all, the "people's right to know"; secondly, "freedom of the press"; and
thirdly, "freedom of information." I suggest to you that each of these ideas
taken as an absolute without qualification is incompatible with the existence of
secret intelligence organizations in our society. And if our society has, in fact,
chosen, as I think it has through its elected representatives, to have secret
intelligence organizations, the task is to find a way of accommodating these
societal values with the needs of secret intelligence operations. The issue, if one
wants to resort to slogans, could very well be turned around and posed this way:
How do we preserve the people's right not to know? How do we attain freedom
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from the press? And how do we attain freedom from information in this area?
And I can tell you from my perspective, these are three critical questions at the
present time.
I take it that it's axiomatic to almost everyone here that the nature of the
intelligence business depends on secrecy. Everyone pays lip service to that
proposition, but it means very different things to different people. To the active
FOIA litigators, the press, those who are assailing us with demands for great
amounts of information, it means that there may be somewhere a real secret
that needs to be preserved, but they are very few. And, indeed, some of the
witnesses testifying on this matter and some of our eminent former intelligence
officers who have taken to writing books have made that contention: that really
the Agency has no secrets or has very few real secrets. I think those who are in
the business and have to conduct the intelligence activities of the United States
on a daily basis would argue--and I believe this very strongly myself--that not
only does one have to preserve the real secrets, whatever they may be, but we
have to preserve an aura of secrecy, an impression or confidence on the part of
those with whom we deal that what they consider important will be kept secret.
This is the so-called psychological aspect of secrecy. This is a perception
problem we have. We have come in for a great deal of derision in the course of
congressional debate on FOIA reform for claiming that there is a perception
problem; derision from people who cannot possibly have any basis for making a
judgment one way or the other, but who apparently feel that we have been
derelict in not running a worldwide education campaign with our agents to
instruct them in the intricacies of current jurisprudence in the FOIA area.
I'm reminded of a very interesting evening, courtesy of Mort Halperin and
his Center, when we had a dinner debate on this and a very intense young man
cornered me in the garden afterwards. He berated me at great length for the
fact that I was going around saying that our sources of information perceived the
Freedom of Information Act to create a climate in which they are nervous about
cooperating with us. And he asked how many of these people I had visited, or had
my lawyers visit, to explain to them the fact that ultimately, after years of
litigation, we ordinarily prevail. I suggest to you that conducting that kind of
dialogue via dead drops or in back alleys is not likely to be effective; and I have
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106
no embarrassment whatsoever that we have not embarked on a worldwide
campaign to meet each of our agents and educate him in the likelihood--not the
certainty, but the statistical likelihood--that we may prevail in FOIA litigation.
In any event, from our point of view, this psychological climate, the
perception problem, is a very real one; and it is a legitimate concern for the
intelligence agencies and for the public, if the public wants those intelligence
agencies to function effectively. I think everyone recognizes intelligence is a
virtually unique area in our national life, perhaps shared with certain secret
military activities, in that the ordinary processes of public examination and
public contribution to the development of policy based on a full range of
information and knowledge cannot take place. It is an exercise in taking the
watch apart to see how it runs when there is no earthly hope of putting it
together again afterwards. Therefore, posed in stark terms, we either have to
have a surrogate for public participation in the process or we have no process at
all. I suggest to you that we do have that surrogate. We have it in the form of
the constitutionally ordained structure of our government, an elected Congress,
an elected Executive, and that the people have so far manifested their will
through these organs in favor of having a strong and effective intelligence
organization. And, indeed, when one forays beyond the Beltway into the rest of
the country, as I have on several recent occasions, I think the overwhelming
interest that one encounters in audiences and groups of citizens is whether or not
the CIA is effective and not whether or not the CIA is infringing on their
liberties in some fashion.
This area is peculiar because the minority is in a position, given access to
information, not merely to engage in political debate about the validity or
invalidity of the government's policies, but to thwart those policies as absolutely
through the mechanism of exposure as a devoted enemy of the post office could
thwart its operations by blowing up mailboxes. And I suggest to you that if one
views the activities of some of the avowed enemies of the CIA in the perspective
of blowing up mailboxes, while the situation is complicated by the fact that they
necessarily use speech rather than explosives, the constitutional analysis makes a
great deal more sense.
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Given that the people have chosen through our constitutional form of
government to have an intelligence system, and that we have at the present time
mechanisms of oversight through which the Congress as well as the Executive
Branch know what that system is doing and why, I suggest to you that all of these
problems should be approached or analyzed in terms of how can we preserve and
strengthen the intelligence system to the degree necessary without, at the same
time, compromising basic values or infringing unnecessarily on what I would
concede exists, namely, a right of the public to know as much about the
government's operations as is compatible with having a government that can
function effectively. This leads to a series of propositions. The first is that we
must have a strong congressional oversight system. Despite the flurry of
contention surrounding the Intelligence Oversight Bill now working its way
through the Congress, the Intelligence Community clearly supports strong
congressional oversight. We have engaged in a successful and pervasive oversight
relationship with our two committees over the last several years and my personal
conviction is that that relationship has nothing whatsoever to do with legal texts.
It will exist with or without a statute. It is a product of the amount of vigor and
interest that the Congress is willing to invest in the relationship. At the present
time, they invest a great deal in the relationship. As Fred indicated to you
yesterday, they have the power of the purse which is the ultimate weapon on the
side of the Legislature, and they have no need of additional statutory authority
to gain access to information or to have a profound influence on the policies and
activities of the intelligence agencies. But, in any event, no one is opposed to
putting all this in suitable legislative language and everyone, to my knowledge,
within the Community is in favor of continuing and strengthening this
congressional oversight relationship.
Second, I think all of us would concede that in our society, given our unique
form of government, there should be public exposure to the maximum degree
possible of information about intelligence activities. And, indeed in this country,
the public enjoys a degree of knowledge about this country's intelligence
activities which is absolutely unprecedented anywhere on the face of the earth.
In our sister democracies of the western world, the very existence of the foreign
intelligence agencies is denied, although it's obviously an open secret. And the
existence of the domestic equivalents of the FBI is acknowledged but nothing
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else is publicly known. Contrast that with the amount that was known about our
intelligence activities even before the Church Committee and the contrast is
striking. And if you take what the public knows today, which is almost
everything, it's even more startling.
Third, and I think this is the key to the entire matter, the system of
oversight and of disclosure of information controlled by the necessity of
maintaining secrecy and a strong organization must substitute for direct
oversight by the public through the normal mechanisms of access to information.
And I include in this the Freedom of Information Act which I consider totally
inappropriate to intelligence agencies.
Next, I think it is clear as a matter of constitutional law but I hope this will
be elucidated later in the year by the activities of this group that the state, the
government, constitutionally can, and I think as a matter of policy should,
legislate against intentional destruction of intelligence agencies through the
mechanism of exposure by those who are unable to gain their political ends
through the normal process of discourse and political activity. And finally, on a
parochial note, I would contend that it is entirely proper as a policy matter, and
of course the Supreme Court has held it to be lawful as a matter of law, for the
CIA to limit public discussion of classified information by employees and former
employees and to do so, as was upheld in the Snepp decision, through a
prepublication review of proposed disclosures. I know this is highly controversial,
and I have already been hard at it over breakfast this morning; I would submit to
you that whatever inequities in enforcement there may have been to date or may
be perceived to have been, there is no adequate substitute in any of the current
proposals for the system we have under the Agency's employment agreement.
Let me, if I have a little time left, briefly run through these three areas and
make a few points about each. The Agent Identities Bill has engendered a great
deal of lip service to the proposition that it's outrageous for the Covert Action
Information Bulletin and similar publications, e.g., Counter deliberately to
uncover and disclose the names of intelligence officers and agents who are under
cover. And there are very few people who will forthrightly get up and say that
(a) this is not a problem, or (b) if it is a problem, it's just too bad and there
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shouldn't be legislation. On the other hand, the testimony of many who have
testified on these legislative proposals in my opinion surely covers an undisclosed
desire that there be no effective legal remedy in this area because the proposals
that have been made from many quarters would be totally ineffective. As for as
we are concerned at CIA, this is a devastating problem, not only because of its
direct effects--which are demonstrable, although most of the proof is classified--
but also because of its indirect effects on the perceptions that our cooperating
sources of information abroad have about the will of the United States to protect
secrets. It is of absolutely no use to adopt a bill that purports to make this
activity criminal if it cannot be enforced against those who are notoriously
engaged in such disclosures. And I think that, within the limits of prudence and
signaling one's intentions in the criminal prosecution field, the touchstone of
discussion in this area should be: can this legislation be used effectively to
prosecute the organizations such as Covert Action Information Bulletin, that are
causing the problem. If it can't, it's not going to do the CIA any good; it's not
going to do the American people any good; it's not going to do the cause of civil
liberties any good to pass this legislation; and, indeed, in all candor, I would view
it as disadvantageous because the passage of the bill will provide a space of some
five or ten years in which no one will be willing to do anything about the problem
on the theory that the Congress has already solved it.
Illusory legislation, in my view, is legislation which purports only to punish
the government employee or former government employee who had access to
classified information and disclosed such information in a manner that reveals
the identity of an undercover agent. We don't need additional legislation to deal
with that problem, according to the Justice Department. What we need is to
overcome the mysterious obstacles that so for have cropped up every time the
Justice Department has considered a possible prosecution. And obviously no act
by the Congress, at least none devised so for, can overcome bureaucratic
lethargy or ideological disinclination on the part of those charged with executing
the laws to enforce a particular statute.
The second point is that in order to make this kind of legislation effective,
we must be able to go after those who have clandestine relationships with
unrevealed sources of classified information and use those relationships in order
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to accomplish the discovery and disclosure of classified identities. Now there
are two ways, obviously, that one can go about this. We could, using present law
or using very limited statutes such as the one that was proposed as part of S.
2525 which dealt only with current and former employees, apply normal
techniques of criminal investigation, including infiltration of organizations by
informants, electronic surveillance if that's appropriate, so forth and so on. I
dare say that were the Justice Department to embark on the use of these
techniques against Covert Action Information Bulletin or some other publication,
there would be a storm of protest about this assault on civil liberties and about
the chilling effect of that kind of government activity, although as far as I can
perceive there are no constitutional or other impediments to such conduct. An
alternative is to find some external measure of activity, narrowly limited, in an
attempt to obviate the need for intrusive and possibly chilling criminal
investigation of these publications. That, in my view, was the virtue of the bill
introduced in the House Permanent Select Committee, H.R. 5615, although the
Administration ultimately chose not to support it. I think, in considering this
matter, there is a clear choice that has to be made between that kind of
approach in which behavior and evidence of intent governs the nonemployee
defendant as against one that will either fail of its purpose or require the use of
intensive investigative techniques.
Finally, I see no justification, whatever law is adopted, or indeed if none is,
to bar as would have the Intelligence Charter version, the use of the normal
conspiracy and aiding and abetting statutes and the principles of law that have
grown up under those statutes. Let me make one final remark on this because
it's very distressing to me that the discussion of this statute has proceeded by
way of hypothetical example in very large part. If one looks at the testimony
given before the congressional committees, that testimony is replete with
hypothetical examples and I think they are all incorrect. I'm sorry to take
exception with Mr. Abrams' analysis of these statutes, but I can't for the life of
me see how any of them would have applied to a newspaper or anyone else who
mentioned the name of Gary Francis Powers after the U-2 was shot down.
Similarly, I have examined the passage from Senator Moynihan's book referred to
by Mort Halperin in his testimony in which Indira Ghandi is described as what you
might call the bag person in an alleged transfer of funds to the Congress Party by
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the United States government. And, again, I don't see how any of these statutes
could apply to that particular disclosure. Thirdly, there has been intense
discussion of the problem of republication or repetition of things that appeared in
the newspaper. It seems to me that's a problem that's very simply solved by
minor adjustments of the legislative language and it should not be held up as a
boogie man to make people believe that one of these statutes is going to involve
the prosecution of citizens on the basis of their dinner table conversation. That's
just plain ridiculous and it doesn't contribute, in my view, to rational dialogue.
Moving on to the FOIA, let me simply say that I think the entire discussion
of the application of the Freedom of Information Act to the intelligence agencies
has been misplaced. That discussion has preceded on an assumption that the
intelligence agencies bear a burden of proving that they have been irreparably
damaged by the FOIA and that any amendment of that Act should proceed on the
narrowest possible basis within the limitations of this demonstrated damage. I
think that it is simply ridiculous to apply to a secret intelligence organization a
public disclosure statute. And although the agency has not so far adopted a
posture of seeking more than a rather modest revision of the FOIA, expressing
my personal opinion here and not speaking as a spokesman for the Central
Intelligence Agency, the whole concept of public oversight simply will not work
with respect to secret intelligence agencies. Proceeding from that premise, I
suggest to you that analysis of what the FOIA did or did not reveal over the last
five years about CIA activities is largely irrelevant. I saw quoted in the press
the other day a statement made at some seminar in Texas that the FOIA was the
tool by which the Church Committee uncovered its information. I trust that
everyone here realizes that is totally inaccurate. The Congress does not depend
on the FOIA to conduct its oversight activities. The Congress is the mechanism
that should conduct oversight activities, and the whole concept of oversight by
the public on a totally adventitious basis under this statute makes little sense.
Finally, there has been a certain amount of agitation in the media and in the
Congress for a legislative overruling of the Supreme Court's Snepp decision,
animated perhaps in part by distress at the unusual procedural posture in which
the case was decided, but also to a very large degree bottomed on the notion
there has been inequitable application of enforcement in this area. I don't deny
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that the enforcement of the Agency's secrecy agreement has been less thorough
and far reaching than I would like. And it's unfortunate that the individual whose
name is associated with the decision, (in fact its now become a verb in the
parlance of the Agency and I've been asked to "Snepp" various potential
defendants) is a somewhat pathetic case on the human level. That's distressing
and unfortunate, but it is due to a variety of complex circumstances that need to
be examined. Among them is an understandable reticence on the part of the
Attorney General, on the part of several Attorneys General, to bring any further
law suits while the Snepp decision was pending before the Court of Appeals and
the Supreme Court. That's one reason why Mr. Stockwell was not sued until after
the Court issued its opinion; and, in the meantime, managed to spend all the
proceeds from his book so that there's nothing left for the government to
recover. These are the vicissitudes of life, but I think that we should be judged,
if we're to be judged at all, on what happens now that the law is clear and the
enforceability of the agreement is clear. And, again, that depends on things that
are outside of the Agency's control. I wish people would stop attributing all
these decisions to the CIA which, in fact, gets to make very few decisions in the
area of what you might call prosecutorial discretion.
All I can say is consider the alternative or the alternatives--actually, since
there are two to consider. One is not having any control over publications by
Agency employees who have been engaged in clandestine activities. I think that
is simply unacceptable if we are going to have an intelligence system with any
potential for surviving. And I'm perplexed that this is viewed as a major assault
on the civil liberties of the entire populace. We are talking about a class of
people who know what they are getting into when they decide to become secret
intelligence agents. They give up many things. Presumably they get something
in return, although it's increasingly difficult to discern what it is. Perhaps the
satisfaction that they serve their country. And for the Agency, for the U.S.
Government, to be unable to assure, and to be seen throughout the world as
unable to assure, that a clandestine intelligence officer will not disclose
everything he knows about his contacts, about the people whose lives are in his
hands, is simply unworkable and unacceptable. That's one alternative that I think
must be rejected. The other is a criminal statute which probably would never be
enforced, but if we assume that the proponents are in good faith and anticipate
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that it would be enforced, I think it has formidable civil liberties implications far
beyond the civil remedies possible under our employment. I urge you to consider
that very carefully in deciding on the merits of such a proposal. Thank you very
much.
Michael Uhlmann
Our next speaker, I think it is fair to say, will have a different point of view.
He is to many of you well-known as a partner in Cahill, Gordon & Rhinedell in
New York. He is among the best known litigators in the field of the First
Amendment in general, and on free speech and free press matters in particular.
In addition to his courtroom work, he writes and speaks often on this subject and
we're delighted to have him with us this morning. Floyd Abrams.
Mr. Floyd Abrams
Media Counsel
Thank you. I have one advantage over Mr. Silver; that is that he spoke first,
and so much of what I would like to say in the limited time that I have is by way
of response. It is a rather general response to Mr. Silver's presentation and I
shall get right to it. Let me say a few general things first about the observations
that Mr. Silver made.
At the very outset he expressed, I thought, some disdain for the view of
people that believed there were constitutional doubts--that there might be
constitutional problems out there--with legislation relating, for example, to the
disclosure of identities of intelligence agents. It is, I hope I need not say, not
only those of us that happen to oppose certain portions of either the
Administration's bill or what I will refer to as the CIA's proposal who have had
these doubts. Just Wednesday, in front of the Senate Select Intelligence
Committee, the Assistant Attorney General appeared on behalf of what I would
think we would call the United States and, referring to some of the provisions
which I gather Mr. Silver doesn't have much doubt as to, observed as follows:
"Our reservations regarding Section 501(b), which is of the initial proposal, are
based both on policy and constitutional uncertainty." And later on in the
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statement appears, "In my appearance last January I was asked by the House
Intelligence Committee whether the Department believes Section 501(b) of H.R.
5615 and S. 2216 would be held constitutional. Our sincere answer, has to be that
we don't know." And it is indeed a sincere answer, but it is that type of sincerity
which leaves me to suggest to you that a lot of the constitutional issues raised by
legislation in this area are indeed far more difficult and surely for less certain
than Mr. Silver would have you think.
He tells you, for example, that it is irrational for it to be maintained that a
debate at a dinner table could possibly lead to prosecution under any of these
proposals, certainly under the CIA proposal. But, again, on Wednesday, appearing
on behalf of the United States, it was the testimony of the Assistant Attorney
General that the prohibition of 501(b) applies to disclosures even of publicly
available information by any "voter, journalist, historian, or dinner table debater"
if the disclosure is made with the intent to impair or impede the foreign
intelligence activities of the United States.
So I don't think it really serves much of a purpose, if I may say so, except
that of advocacy perhaps, to suggest that these are feigned difficulties or made
up doubts which people have. A lot of people have the doubts; some of them at
least are serious people and some of us mean what we say about the doubts and
we mean it only for constitutional reasons. Mr. Silver talks to you about things
which he characterized as slogans or phrases, one of which is the freedom of the
press. I had not thought that freedom of the press was so easily dismissed as a
slogan or a phrase. And I would say to you that we deal with constitutional
problems by looking at hypothetical examples. How else are we to do it? We
look ahead. We look down the road and worse yet, and maybe Mr. Silver doesn't
want us to do this, we assume a government which does not always act properly.
Now I think that that is an appropriate First Amendment approach to take in
situations like this. I think one must at least entertain the notion that a
government armed with legislation which would permit it to stifle or punish
certain types of speech, however reprehensible the speech may be, may misuse
it. And at least we ought to examine the legislation very closely indeed to see
what the potentials of misuse are.
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Now my own sense of what type of direction we should go in in this area is
one which leads me to offer another general conclusion first. It is very
interesting to me, and I think generally unremarked upon, that there is a rather
significant growing consensus in this area of which the Central Intelligence
Agency is not a part, but of which Mr. William Colby, for example, and I and
even some of the people, if I must say "even," at the American Civil Liberties
Union are. Mr. Colby testified on May I, and I think very soundly and soberly
analyzed the situation, both from a legal point of view and a pragmatic political
point of view, and urged that certain narrow categories of information be made
illegal to be disclosed by former agents or people with authorized access to that
information. My own view is that at the very least that is the proper starting
point. It is the proper starting point with respect to the question of what we are
to do, with respect to the disclosure of names of agents; it is also in my view the
proper starting point of what to do in Snepp-type situations. I think we really
have to address, in each case, three questions. Who is it that we are saying
shouldn't be allowed to say something? What is it they shouldn't be allowed to
say? And under what circumstances, if any, may they say it?
I start with the proposition, and I start with it for constitutional reasons,
that all of these categories ought to be as narrowly limited as possible,
consistent if possible with achieving the ends that are sought. If it is not
consistent with the ends which are sought, then it may well be, as Mr. Silver tells
you, that we should have no legislation. We pay a lot of prices in our society.
We let guilty people go free on the streets because of our commitment to the
Fourth Amendment. Just like that. And it is not an awful lot to say or an awful
lot to ask, that if we conclude that the First Amendment precludes certain types
of legislation, we shouldn't have that kind of legislation, even if we would prefer
the societal effects of the legislation.
Now my sense is that starting with "who" is that the who is pretty well
defined in some of the legislation, and at least half the legislation that I think
Mr. Silver favors. I would at least start with the notion that people who are in
authorized possession of certain types of information--let's get to the types in a
moment--shouldn't be allowed to reveal it. Or put differently, that it should be a
crime for them to reveal it. I think the categories of information should be on
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the narrow side, and I think basically the definition, at least most of the
definition in the legislation, isn't really bad. There is a definition in their
legislation of covert agents and it seems to me that the main thrust of any
legislation ought to be to ban the disclosure of that type of information. I don't
want to focus too much on drafting language here but trying to generalize about
it, I think that's the direction that we ought to try to go in. I think that we must
make it clear in any legislation what the circumstances are, that the individuals,
whoever they are, that can't say certain things, may or may not say them. And
here is where I do indeed get hypothetical about it. In my testimony, for
example, I urged upon the Senate Committee on Wednesday that I appeared
before that, as I read the draft legislation proposed initially by Senator
Moynihan, and indeed that part of it for which Senator Moynihan has withdrawn
his support of First Amendment reasons and based on First Amendment
considerations. And, indeed, the some part of the legislation, which the
Department of Justice has opposed for the same reasons. As I read the
legislation, and as I read the current proposals, given the fact that what is
prohibited to be spoken is the identity of a covert agent so long as the
information is still "classified" information, that indeed there could be
prosecution of anyone who revealed the name of, and I used the name of Colonel
Powers at the time of his capture by the Russians. I used that name because it
was not the official policy of the Executive Branch of our government, and that
is the definition which at least in litigations I have been involved in, every CIA
Deputy Director testified was the relevant criteria, whether it had been
officially revealed by the Executive Branch, not in front of some Congressman,
certainly not in the press, revealed by the Executive Branch that the person was
indeed a person in what I would call a covert agent position.
And so the fact is that if you read that draft piece of legislation as straight
as I can it would indeed subject anyone to prosecution for repeating the name of
Colonel Powers up until the time that the Executive Branch declassified his
name. It doesn't help me, it doesn't help my clients, if I may put it that way in
terms of being able to give them advice in advance, for there to be a portion of
the draft legislation which says but you're only liable if you intend to impair or
impede foreign intelligence gatherings. First of all, I think that there's a
constitutional right to want to impair or impede intelligence operations. I think
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that the desire to do things like that has nothing to do with law at all. We may
disagree with it. I suspect all of us in the room would disagree with it, but
people have a perfect right to desire to do certain things. The question is what
do they do? What may we prohibit them from doing? And under what
circumstances? I assure you that in terms of giving advice in advance to a
prospective publisher of any kind of information like this, that to tell him that
there could be a prosecution but it's unlikely because either for political reasons
or because I don't think that the government can demonstrate that there's a
desire to impair or impede intelligence gathering operations, is just not a strong
and persuasive thing to say.
There would be, to use an overused word that at least I don't use much, it
doesn't get me much in the courts when I use it, there would indeed be a chilling
effect on publication of certain types of information if the only thing that stands
between a publisher and conviction is a jury's determination of his intention.
Now let me say I was delighted to hear Mr. Silver say that this particular concern
of mine is something which could be handled with just a little bit of drafting. I
must tell you I have my doubts that either the Administration or the Agency, as I
understand any of their positions, either public or private, would agree to a
definition of classified information which is not the definition that I offered to
you earlier. That is to say, that material is classified if it meets certain
requirements and it stays classified until the Executive Branch declassifies it. If
there is any inclination on their part as there was not in one case in which I was
counsel, the Knopf v. Colby case, to say that if something is notorious enough,
widely known enough, that it can be disclosed, I think that's a good first step.
More broadly, though, my view is that it is probably unconstitutional to
apply this legislation, legislation of this sort, to people who are not or have not
served within the government itself, at least in most circumstances that we have
heard discussed today. It seems to me that once the information, whatever it is,
leaves the government that there is a pretty clear and virtually absolute
constitutional right to disseminate it. I think it's partially a practical matter.
You can't rebottle the old secrets. But, as a legal matter, as a First Amendment
matter, I think once information is out, it is out. And that means, for example,
that if Mr. Agee provides information to someone else and the someone else
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publishes it, I think it would be indeed constitutional to prosecute Mr. Agee under
appropriate legislation. And, indeed, under almost all of these proposed bills.
But if Mr. Agee gets on a rostrum and makes a speech and names agents, and any
of us go around and repeat it or any newspaper goes around and repeats it, I do
not believe it is constitutional under the First Amendment to punish for that
repetition. And, indeed, I do look forward, as does Mr. Silver, to any efforts of
this body to look into that question. I think the law is pretty clear on that. I
think the law is a lot less clear with respect to people who you might say are
aiding and in concert with say Philip Agee, and there I think that's a lot closer
question legally as to whether indeed it is appropriate to punish them.
But in the type of situation that I raised, the type of situation which is
much more common from the point of view of the press, say, where information
leaks and is then published, it seems to me that to permit prosecution simply
because the information identifies a certain type of person and is classified, with
or without requirements of intent of one sort or another, is likely to be
unconstitutional. It's not a good idea, and I would say as well as a prudential
matter, is not something which I would think the Administration or the Agency
ought really to be urging.
I must confess that some of my views on this area were shaped a bit by my
own role as counsel in the Knopf v. Colby case in which I came to take that
position of the four then Deputy Directors of the Agency and of Mr. Colby, and
came to learn, as I think each of them would agree, that the classification
process is a discretionary one and that not everything which can be classified is
in fact classified. And that the contours of what could be classified are very,
very sweeping indeed. That's another reason why I think it essential for any kind
of legislation not to be limited to classified information alone but to be honed
down to classified information still classified, information not already known,
information relating to certain types of entites or of individuals such as covert
agents.
Let me turn briefly to the Snepp case because my time is almost up. I don't
think that the media outcries, which Mr. Silver apparently felt sweep over him,
are entirely the result of the sense, although it is a sense, that the Agency
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decided to go after Snepp and not others. I think that is part of it. I think it is
much broader than that. We do have a general commitment to the proposition as
a country that we don't have prior restraints on the disclosure of information--
almost any kind of information. The Supreme Court has, to be sure, in the Snepp
case upheld the issuance of prior restraints in the context of a former agent who
signed a secrecy agreement. For better or worse, now we know that it is lawful
for the Agency to enforce those agreements.
Whether it is prudent for all of us, not just the Agency as an institution and
surely not just focusing on Mr. Snepp or the people that write the books, but for
all of us as citizens, for the approach to be taken as being one of enforcement of
secrecy agreements by judicial decree, judicial injunction, seems to me a very
different question, indeed. I have some sense that I am too closely embracing my
friend Bill Colby today, but I would like to read the last two lines of his
testimony of May I, which say what I would say very well. He said, "Mr.
Chairman, we must take the protection of our intelligence sources seriously and
punish those who reveal them. This is not a game of hide and seek between the
government and covert publishers, nor should it rest on the squabble over
royalties after the secrets are exposed." Well, I agree with every word of that,
and I think the way to approach that is by the adoption of appropriate criminal
legislation, making illegal the disclosure of certain information by people who,
like Mr. Snepp, have held certain positions in the Agency or perhaps elsewhere in
the government as well.
I must tell you that no legislation that I would favor would likely have
prevailed against Mr. Snepp in light of the Agency's concession that nothing in
Decent Interval was, in fact, classified. But if the Agency had taken the position
or were in the future to take the position, say involving Decent Interval, that the
material was classified it, seems to me that that would raise a very different
type issue, indeed.
Let me conclude. These are hard constitutional issues, well worthy of
consideration of this body, but hard because any time we talk about legislation
which limits what people can say, even what people in positions of trust can say
about almost anything, surely about governmental operations, we run into serious
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constitutional questions right away. I don't happen to be one that comes easily to
the phrase "the people's right to know." I don't believe, for example, there is a
constitutional right to know everything about what happens in the government;
surely, not a right to know everything that happens within the CIA itself. I agree
with Mr. Silver that if we're going to have a CIA much of it by definition is not
within the realm of the people's right to know. I think the appropriate way to
phrase it or at least to think of it is to think of it this way. Under what
circumstances are we prepared as a people to say that the government for good
ends can suppress or limit or punish certain types of speech? That's what this is
all about. There's no question but that the CIA has a powerful argument on its
side in terms of public policy, in terms of wanting to prevent disclosure of
certain types of information. Now there are cases in which I think the public is
well-served, not just by being able to repeat the name of Colonel Powers, for
example. There are some case in which I think the public was indeed well served
by disclosure of certain improper conduct to the extent that exists or may exist
of CIA people. If, for example, evidence should ever develop about any
relationship between the Agency and to take the worst imaginable, or I hope
unimaginable, case, the Kennedy assassination, I would think that all of us would
say that there's got to be a right to get that information out and that surely if
someone knows the information, he has a First Amendment right to state it.
But these are painfully difficult questions, and I would simply urge on you
that as you consider them and as you consider as a committee and in terms of
your own views on these things, that you weigh a lot heavier than I think Mr.
Silver has urged on you the constitutional commands, the constitutional
requirements, and the reasons that we impose those commands and requirements.
Thank you.
Michael Uhlmann
Thank you, Floyd. Our final speaker is not a political lawyer. He is a
political scientist by training. In prior incarnations, he has been a teacher of
political science and is the author, among other things, of a book on modern
French history and politics. He now serves as a member of the professional staff
of the Senate Select Committee on Intelligence, Angelo Codevilla.
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Dr. Angelo Codevilla
Senate Select Committee on Intelligence
Thank you. The privileges of a clean-up hitter are few and the burdens are
many. One of them is that his thunder has been stolen by those who have
preceded him. I find myself in complete agreement with Mr. Abrams on the
Snepp case, and in complete agreement with Mr. Abrams that there is no such
thing as the public's right to know. I would go further. No such right is to be
found in any of the texts of political philosophy. It is not to be found certainly in
the Constitution itself, and it is not to be found in American law.
I find myself, in agreement with Dan Silver's proposition that secrecy is the
sine qua non of intelligence. I don't agree with the proposition of many in the
intelligence community that secrecy is all there is to intelligence. As I will
argue in the next few minutes, there's an awful lot more than that. But before I
do, I'd like to make just two points.
First, Mr. Abrams' contention that once any information leaves the
government there is an absolute constitutional right to publish it has no basis in
the text or in common sense. I don't see that right anywhere in the Constitution.
Second, it makes no sense to punish those who disclose names of agents and to
give immunity to those who publish them. The distinction between disclosure and
publication is a wholly artificial one. It's not there. He should not assume that
the leakee is not in concert with the leaker. Whether or not the two parties are
is a question for a court to decide. There is no reason, it seems to me, to punish
the employee of an intelligence agency for a disclosure and not to punish the
person who takes that information and brings it to the knowledge of those who
are in a position to do harm to the United States. The employee who steals the
information is most often not the most important person in that chain. He is
most often not the malevolent party. To punish only the employee would be akin
to saying that we would go after only the clandestine agents of foreign nations
and not the case officers who run them. Moreover, what if Mr. Agee or any
other leakee, furthermore, teaches the art of finding agents or finding other
information to other people and they, the outsiders, let us say, use the skills to
further grind out information? But that is another matter.
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I return to the proposition that there is no general right either in law or in
common sense for everyone to know anything. The phrase "the right to know" is
a very bad guide to us as we try to answer the question what does the public need
to know about and by what means should it find out? I find myself in complete
agreement with Dan Silver that the public's elected representatives are
responsible for judging what the public should know about certain matters.
I will argue the following proposition: that the public should know enough
about intelligence to be able to judge whether it's being well-served, that
because of the special nature of intelligence if the public knows too much about
intelligence the public surely will be badly served, that therefore the facts which
reach the public must be heavily filtered, and that the peoples' elected
representatives are the only ones who should do the filtering. I shall not argue
that the powers of oversight are being well exercised now, but rather that in
order for the public to be properly informed about intelligence the process of
oversight must be much improved.
First, however, a few comments on how not to inform the public. In
testimony before Congress, Mr. Abrams was quoted ... to the effect that the
press should try to find out what it can and should publish what it knows. Thank
goodness the statement is one man's opinion and not part of the Constitution.
Just suppose for a moment that the press and the judicial system took that
statement seriously. Each reporter would believe it proper to act no differently
than a Soviet clandestine case officer. He would recruit agents by whatever
means, and try to penetrate American intelligence as deeply as he could to find
out the most sensitive information we had. Then he would probably publish it to
the world--names of agents, frequencies, functions of technical means, every-
thing. In war time such dutiful reporters would send untold numbers of their
fellow citizens to their graves. The Justice Department and the courts, for their
part, would just let it go on, because, after all, the press's job in a free society is
to inform the public, isn't it? Well, I think all of that is very clearly nonsense.
We're not in such a strange situation yet. But we are approaching it a bit
too closely. Enterprising American reporters have, in fact, ferreted out secrets
from the intelligence agencies which the KGB's case officers were not
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themselves able to ferret out. Like it or not, as the Soviets would put it, the
free press has made itself an objective ally of Soviet intelligence. I mean this is
not an accusation of malevolence or anything of the kind. It's just a realization
of the facts as they are after a careful reading of the New York Times. An
awful lot can be found out from simply reading the New York Times. I
sometimes find out more from the New York Times than I find out from the CIA.
The Times sometimes proves to be a more direct line to the inner sanctum of
intelligence than does our Committee's authorization. The Times reporters have
better sources than I do.
So, unlike Mr. Abrams, I do not see the sense or the equity of proposing to
jail an employee of an intelligence agency who acts as an agent by revealing
certain secrets to unauthorized persons, and not jailing the person or persons who
play the part of the case officer. The reason for all this inconsistency of legal
preference is clearly the tremendous stake which the press has in leaks. But our
society in general has no such stake. Leaks are a terrible way to have a public
debate. By definition, leaks are partial, they are biased. By relying on leaks of
classified information, the press is not serving the public but rather serving those
factions in the government which are powerful enough themselves to leak with
impunity; to leak and to shield themselves from investigation and reprisal.
Administrative procedures and secrecy agreements are appropriate means for
controlling leaks. Administrative sanctions amount to self-policing, and one can
count on self-policing being applied unfairly. I think we have seen that potential
realized in the Snepp case. Personally, I think a great injustice was done to
Frank Snepp; not because his secrecy agreement should not have been enforced.
I think it should have been enforced. The man promised to do something. He
should have been held up to that promise. But the fact is that there are other
people within the Agency and who have left the Agency who have published
things far more serious than Mr. Snepp has published who have not been treated
so harshly. One does not get out of that simply by saying that life is unfair. Our
task here is to try to make it as fair as possible. After all, that's the task of
legislators.
Legal procedures have also proved to be inadequate for informing the public.
The Freedom of Information Act has brought millions of pages of classified
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information into the public domain. But who has benefited? Those who make
requests for information under FOIA are usually looking for something that will
help them make a point. They get what they want; they make their point; and in
the process they leave huge piles of materials, sort of the tailings of a mine,
which can be carefully scrutinized by our enemies' intelligence and counter-
intelligence services. We have to ask whether those who have used FOIA have
provided the public with the knowledge necessary to improve the public's lot. I
doubt it. The press and other partial interests do a tolerable job of informing the
public on matters which do not involve classified information, because anyone
who wishes may check the accuracy or the completeness of any report. But both
press and the requesters under the Freedom of Information Act have come to be
in a position to decide what the public should be told about intelligence and what
the public should not be told. As a matter of fact, it's been argued, and I think
convincingly, that the press has taken upon itself the role of being the only real
intelligence agency. I recall trying to get some information about terrorism
from a well-known American journalist who operates in Europe, and asking that
journalist to come to the Intelligence Committee and to tell us on the classified
record about her sources, and about some matters of high interest to the United
States. This journalist told us that she had consulted her sources and her sources
would not allow that information to be put into any official American channels
because of the belief that we could not protect them. However, they obviously
believed that the journalist could protect them, and the journalist did a very good
job of protecting them.
Well, it is simply not a healthy situation for persons who represent no one
but themselves to play such a preeminent role in forming the public's mind on
intelligence matters. Only the peoples' elected representatives have the
authority to decide if the public should know one fact and not another. Now
since the potential for abusing such power is obvious, it is right that such power
be vested in the select committees representing all points of view in the
Congress.
Now, what does the public want to know about intelligence? What should it
know? Well, true, the public wants to be reassured that those whom it pays to
act as its guardians are not abusing their secret prerogatives. But most people
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are chiefly and rightly interested to know whether the agencies are doing some
good proportionate to the money that's being spent on them. The public rightly
believes that the United States has enemies, both foreign and domestic, and
wants to be sure that the intelligence agencies are protecting us against both.
Now, the Congress' intelligence committees have been very thorough in
investigating allegations that the intelligence agencies have violated U.S. laws,
Executive Orders, and regulations. This is quite proper. But they have not been
nearly so eager to look into shortcomings of performance. The CIA's
involvement in the Chilean revolt against Allende was the subject of a full
investigation and of a public report. But several senators still receive letters
from one Mrs. Ewa Shadrin whose husband reportedly--this I learned from the
New York Times--disappeared while being run as a double agent by the CIA. This
lady wants to know whether her husband's life was thrown away. No report has
been made public in any way. Now, both of these things are serious matters.
The Chilean affair is a serious matter; the disappearance of Mr. Shadrin is a
serious matter; the revelation of our role in Chile was not helpful to the United
States; who knows that the revelation of what happened to Mr. Shadrin might not
be helpful to the United States. But I perceive here a certain eagerness to get
into one kind of matter and a certain reluctance to get into another kind of
matter. By what criterion is it proper to assert the public's right to know about
the former but not about the latter?
How then is the public to find out whether it is being well-served? Well,
first of all, the public will learn nothing from statements such as, "I believe
we've got the best intelligence system in the world," especially when the person
making such statements never has spent time comparing American intelligence
against the world's other intelligence systems, especially when the person making
such statements has never measured American intelligence against the job that it
has to do. Such statements invariably please the employees of the Central
Intelligence Agency, and of the FBI; everyone likes to be praised. But such
statements have a hollow ring, because nowadays the public sees lots of evidence
that there is something drastically wrong with American intelligence. The public
doesn't have to be privy to secret information to get that impression. For
example, millions of Americans, even Jimmy Carter, are genuinely surprised
these days to find out that the United States has become the world's number two
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military power, that the Soviet Union has become the number one military
power. Unlike Mr. Carter, however, many people are asking why we were not
warned this was coming about? I mean, after all, it took a long time for us to
slip from being number one to being number two. In order to become number
one, the Soviets had to build an awful lot of very large systems. They took a long
time to do it. They had to mobilize enormous resources over many years. There
was an awful lot of evidence about what they were doing and not nearly all of it
was classified. Why didn't anybody warn us this was coming about? Where was
the CIA? Well, as readers of the Washington Post know, the CIA has been right
there, for more than a decade, reassuring the U.S. government that what was
happening really, well, really wasn't happening, or failing that that what was
happening really didn't matter. This raises certain legitimate questions in the
public's mind.
Then, too, the American people watch as the Soviets or other enemies of the
United States mount coups d'etat around the world and they wonder--where is the
CIA? Can't we stop such things or maybe pull a few of our own to balance things
a little? But time passes and enemies pile up successes. The number of regimes
friendly to us dwindle down to a precious few. This raises certain other obvious
questions.
Then, on occasion, people open their newspapers and they read about terrible
squabbles within American intelligence. They read, for example, that a high CIA
career officer, Mr. John Hart, went before the House Assassinations Committee
public session and while the congressmen were trying to get information out of
him regarding what Lee Harvey Oswald had been doing in the Soviet Union, Mr.
Hart brushed them aside repeatedly and said, in effect, "No, no, I'm here to tell
you about something else. I'm here to tell you about how bad the CIA was in
handling a certain Soviet defector about a decade ago." In so doing Mr. Hart
revealed all sorts of classified information about the CIA, all of which tended to
cast discredit upon another former high official of the agency. What is the
public to think except that the CIA is routinely in the business of leaking secrets
to harm the influence of--well, the public can't figure it out. It seems as if the
Agency is devouring itself. In fact, certain factions are in the business of leaking
secrets to destroy the effectiveness of their bureaucratic adversaries. Can't
something be done about such things?
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Also, recently, readers of newspapers have noted that the FBI has held press
conferences to draw attention to its successes in the field of counterintelligence.
Specifically, the case of two Soviet case officers who bit at the chance to take
classified information from a Naval officer on the New Jersey Turnpike. The
Naval officer was dangled before them. Also, the FBI held a much-publicized
press conference on the case of Mr. Hermann who was the first Soviet illegal
that we've stumbled upon in a number of years. Some might wonder why the FBI
chose to ballyhoo these successes. In themselves, these successes are rather
paltry. Besides, why arrest spies? The Soviets will only send over more.
Shouldn't the counterintelligence service watch spies? Make it his business to
learn about all agents working against us? Keep them under watch? How many
other Soviet hostile agents are there? How many Cuban agents are there? Do
we have a rough idea? What is the use of bragging about catching three? And
then, of course, the scariest question of all: Could these published cases be the
extent of our successes in recent years?
Well, for years the Congress has been talking about comprehensive
legislation to cover the intelligence community. The public has not given its
representatives any detailed guidance about the kind of legislation that they
should enact. But the public has expressed one strong sentiment: don't do
anything to weaken American intelligence. Strengthen it. Not surprisingly, in
recent years even restrictive legislation has been presented to the public as
measures to strengthen intelligence. The public's state of mind concerning
intelligence is quite sound despite its lack of access and despite the flood of
malevolent leaks. It is sound because over the long term it really is difficult to
give the public the wrong impression about how well-served it is. The frequency
of terrorist activity, the suddenness of our enemies' successes, the constant state
of surprise of our leaders speak very loudly and clearly indeed. Of course it
would be better if the public did not have to find out about our intelligence in
such ways. What then should our legislators do? First, they should inform
themselves on just how competent and how incompetent our intelligence agencies
are. How do they measure up to their task and how do they stack up against
their competition? Then these legislators will have to decide how much of their
investigative results they can safely release. They must release some detail,
however, because if they mean to propose major changes in the budget, in the
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structure of the agencies and the habits of our intelligence personnel, they will
have to explain to the public why the new measures are needed.
Let me sum up. Events in the public domain are giving the public the
impression that it is not being well-served by our intelligence. The public cannot
search into the reasons why this is so. The press cannot and should not be relied
upon to try. The public's elected representatives are responsible for finding out
how well the public is being served, to improve that service, and to tell the
public what it should know. They ought to get busy and do it. I think we can
have a fruitful discussion on these matters. Thank you.
QUESTION PERIOD
The question period following produced discussions on the following subjects,
among others: the severability of portions of classified documents to be more
responsive to FOIA requests, whether there are any absolute First Amendment
protections, whether a decision to publish can and should be based solely on a
statute's uncertainty, whether and how newspapers can be prevented from
printing leaked classified information, what responsibility (if any) journalists
have to preclude publication of sensitive intelligence information, whether and
under what conditions journalists might be guilty of conspiracy for their actions
with leakers or leakees, and what form of legislation should we enact to protect
covert agents' identities.
Morris Leibman
Ladies and gentlemen, my thanks to all of you. In closing, I want to pay
particular thanks to the professionals on the panel and in the audience who have
been so thoroughly cooperative. So many of you flew in Thursday night, so many
flew in Friday and so many of you had the courage to stay here to the last
minute. I think the most helpful thing the Committee has had since its entry into
the field is the wonderful cooperation from the intelligence community. We are
delighted that we had so much time for real discourse; and I think it's one of the
highlights in the whole development in this field to see the kind of discussion and
discourse the professionals have had among themselves. It really exceeded our
fondest hopes and I want to thank you all again.
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Two small announcements. There has been so much emphasis this morning
on people's right to know. Some months ago Hardy Dillard talked with Ray
Waldmann and Nino, and we are going to do a research project in that field. The
last thing I do want to say is to Dean Casper, to Nino, and to the faculty of the
University of Chicago Law School for their wonderful cooperation, to Ray and
Florence and the rest for making it such a great program. Thank you.
POST-CONFERENCE LUNCHEON
Morris Leibman
In introducing Frank Barnett formally, he's the President and Chairman of
the National Strategy Information Center but, more than that, Frank has been
one of the great students of international affairs and national security for many,
many years. He's been my devoted friend, has been essential to the start of the
Committee, and has been our educational consultant from its inception. He was
one of the people who helped found the Georgetown Center for Strategic and
International Studies. He also helped start the Foreign Policy Research Institute
of Pennsylvania and numerous others. But today I just want to refer to one minor
thing that Frank sometimes likes to forget, depending on what his view of a
particular situation is. Some years ago a little known Harvard professor came to
Frank and said, "You know, I'd like to start a series of programs for foreign
students to come to the United States, and it's very difficult for me to do this at
Harvard without any money. Could you give me a grant?" And that little
professor was Henry Kissinger and Frank gave him his very first grant. Frank
Barnett.
Mr. Frank Barnett
Director
National Strategy Information Center
That's the first and last time I had anything to do with policy making, even
indirectly. Well, ladies and gentlemen, Morry Leibman and his colleagues have
obviously offered a sumptuous intellectual smorgasbord for this gourmet
audience, and you've already had the Oysters Rockefeller and the Iranian caviar
and the Cherries Jubilee; now you have me as a dixie cup filled with Alka
Seltzer. As almost all of you know, I am neither a lawyer nor an intelligence
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specialist. And I suppose that Morry asked me here really as an agent
provocateur. I must say, as the alms seeker of a smallish research firm that
deals with Soviet strategy and geopolitics, I have profited very greatly from your
deliberations, I think, even when I haven't sometimes understood all of them.
And I certainly would like to salute the American Bar Association for the
constructive initiative of Morry's Committee in entering this important, albeit
controversial, arena of discussion of intelligence legislation.
If I may reminisce just for a moment, I'm reminded that thirty years ago I
flirted briefly with what might be called amateur, nonprofit, overt operations
against the Soviet empire. On leave of absence from my post at little Wabash
College teaching Elizabethan drama, I met a fellow named William J. Casey
who, of course, went on to become head of the SEC and Chairman of the Ex-Im
Bank and, as Marry said, is now Mr. Reagan's campaign manager. But in those
days Bill Casey was a young lawyer who had just returned from Europe where he
had been a very senior person with Bill Donovan in OSS. And Bill Casey and Mr.
Donovan and several others had set up a little firm which had the strange title,
"American Friends of Russian Freedom," and they asked me to become the
Executive Director and to help raise money from foundations for our enterprise.
And the enterprise was, believe it or not, to try and promote defection of Soviet
soldiers from Vienna and Berlin at the high point of the Cold War. Well, we
didn't promote very much defection but it was very gratifying to the ego to be
denounced in Pravda as a cannibal. I should say there were lots of other
defectors from behind the Curtain. Tens of thousands, literally, of Ukrainians
and Poles. There was a fairly large collection of Polish officers still in London,
the remnants of General Anders' group. And, of course, after the Communist
coup in Czechoslovakia in 1948, a number of Czechs came out and there were
rather large and significant numbers of Iron Curtain defectors, many of them of
military age. And so it occurred to me to put together a little proposal to
recruit cadres of Iron Curtain escapees to be formed into paramilitary units to be
attached to NATO and a banker friend of mine, in all improbable places
Evansville, Indiana, who happened to be a golfing partner of Eisenhower--
Eisenhower was then back in SHAPE--carried the proposal to Ike. Ike approved
it. I took a leave of absence and went to Washington and spent several months
there talking to senators and congressmen. Mr. Allen Dulles was kind enough to
phone Robert Taft and Paul Douglas of Illinois and we had a coalition involved in
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this and the upshot was that in 1951 Congress attached a rider to the Mutual
Security Act which set aside $100 million to be used if the President so deemed
to recruit a Legion of Freedom of Iron Curtain personnel who could be used in
time of insurrection as volunteers for Cold War operations.
Well, the Legion was never formed and the only thing that that resulted in
was that this time in Pravda I was called the "Arch Rasputin of the Military
Industrial Complex." And the only utility that had was when my wife would
complain occasionally that I wasn't involved in a respectable profession--banking,
law, or business--I could remind her of the lonely eminence of being an "Arch
Rasputi n."
Well, that was my only connection, even indirectly, with semi-intelligence
activities. My task today is to suggest the wider spectrum of protracted conflict
wherein intelligence is a vital weapon, both for defense and potentially for
offense. It's self-evident that if somebody asks the question: Do we need an
annual 5 percent increase in the Defense budget?, it would be quixotic to
attempt any sensible answer without reference to the specifics of the Soviet
military build-up. Obviously, our own efforts should be prudently tailored and/or
measured against the objective threat rather than, let's say, the Pentagon's
abstract rationale for increasing weaponry per se. Similarly, the layman at least
feels that the intelligence debate ought certainly to be clearly related to the
matrix of danger in what seems to us an increasingly hostile world. Psycho-
logical warfare, covert operations, disinformation, insurgency, those twilight
techniques so distasteful to the racquet club ethics system, actually are major
weapons systems as we all know in the arsenal of the Soviets. And as we debate
charters, alas the Soviet-Cuban-East German-PLO conflict consortium is gaining
added momentum, even in the Caribbean. And I would be less than candid if I did
not say to this distinguished group of lawyers that increasingly American
citizens, admittedly laymen, are worried about the chilling effect not of a clause
in the Intelligence Charter, but of the pay load of Soviet SS-18 missiles targeted
on our own silos, the five Russian airborne armies that can be projected into Iran
or perhaps even Saudi Arabia, the basing of Admiral Gorshkoff's warships in Cam
Ranh Bay, clandestine operations in the Caribbean. In short, the urgency with
which we approach intelligence reform it seems to laymen should be compatible
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with the objective power trends in a world of independent and still ornery
nations, which still seems to be a neo-Hobsian environment.
We know that President Carter, following Moscow's Afghan gambit, said that
he had changed his mind about 180 degrees on the nature and intentions of the
military commissar complex in Moscow, and, hopefully, his change of mind may
have some parallel among leadership in the private sector. I find that too many
of my business friends persist in believing that the Russians are simply Slavic-
speaking graduates of the Harvard Business School. They are not. They march to
a different drummer. It is not the benign thump of a gavel in an Anglo Saxon law
court, but more nearly a primordial beep and the cultural gap may be greater
than the missile gap and has some relevance, at least in my view, to the
intelligence debate.
I want to talk very briefly about five synergistic problems which make
intelligence reform ever more urgent. One is the coming vulnerability of the
U.S. nuclear deterrent in the early 1980s and the consequent opening of the
Soviet window of military opportunity. Two is the growing military edge in
conventional power of the Warsaw Pact over NATO, which is leading to subtle
changes of attitude in Europe. Three is the darkening shadow of the Soviet Navy
in the southern hemisphere from whence comes the oil and minerals that sustain
the market economies of Europe, the U.S., and Japan. Four is the subject we've
been discussing, the partial sidelining of the U.S. intelligence services in a world
in which the KGB is altogether too alive and well and, if anything, escalating its
covert operations throughout the world. A nuclear conflict may be unlikely but
low intensity warfare, aided and abetted by propaganda, political warfare, and
insurgency is in process right now. And manifestly we have diminished capability
to cope. Those four threats in turn lead to a descending spiral of confidence
among friends and allies in America's capacity and will to meet the full spectrum
of challenge from the Soviet Union The Saudi royal family, as you know, is close
to dismay, if not dispair, over Soviet success near their shores. The Japanese
have quietly taken the decision to rearm but they are asking themselves in
private if America is a reliable partner. I would think it imperative that as
Japan rearms we bind Japan to us in the same hoops of steel with which we have
bound Germany, rather than let Japan rearm as an independent force in the
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Pacific eventually acquiring nuclear weapons and then conceivably playing off
Washington, Moscow, and Peking against each other in the classical mode of
diplomacy. Even our staunch friends in Germany, where Bonn has been an
extremely generous NATO partner, but even there Germans are reminding
themselves that the Great Bismarck advised never entirely slam the door on St.
Petersburg. Synergistic threats are leading to at least the discussion of
accommodation or tilts towards Moscow on the part of heretofore very reliable
allies.
Well, Saturday afternoon at the end of a strenuous two days of conferences
is hardly the time to inflict another speech on this patient audience, so I'm just
going to outline one aspect of these synergistic threats which seems to me has
been insufficiently emphasized in defense literature and directly relates to
intelligence capabilities including those that lap over into covert operations and
insurgency. And if anybody wants what I hope is the backup data and analysis, NI
be very happy to give you a full copy of my treatment at the Naval War College
on this subject. But here let me just outline the point.
True, the Soviets have caught up and possibly gone slightly ahead in nuclear
weapons. True, they are somewhat substantially ahead on the central front in
Europe in tanks, artillery, tactical aircraft, and what have you. But surely the
essence of strategy is to achieve indirectly and at low risk what might cost you
enormously more via the direct approach. And, if anything, the Russians have
proven themselves to be cruel, calculating chess players who have avoided head-
on confrontation and who must know something about the utility of the indirect
approach. So I want to suggest the strategy by which the Russians may, in fact,
be seeking to do us in.
The United States and her major trading partners, Europe and Japan, are
increasingly becoming have-not nations, not only in terms of oil but in terms of
metals and minerals which keep our industry going. Roughly speaking, the United
States is between 40 and 50 percent dependent on materials that come out of the
southern hemisphere: Europe about 75 percent dependent, Japan about 90
percent dependent. That would mean that if access to the metals, minerals, and
energy of the southern hemisphere were severed, that the market economies of
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the northern hemisphere could be thrown into a 1929-style depression, if not
worse. One could contemplate a scenario in which literally millions of
unemployed in the streets of Europe would this time equal a tidal wave of
Eurocommunism which neither NATO nor the Common Market could survive.
Japan, incorporated, mighty engine that it is, would nevertheless be shut down
almost completely. And while we could tighten our belt and endure, because we
would still have access to the oil of Alaska, Texas, and Mexico, and the minerals
inside our own continent, nevertheless, because our major trading partners in
Europe and Japan were in a state of economic collapse, we would inevitably be
dragged after them into a state of severe economic and therefore political
distress.
What I am postulating, and again I think there is data to support this, but I
give it to you only in outline form, what I am postulating is that the Soviets are
engaged in an indirect, undeclared resource war. That while they hold aloft their
mighty nuclear hammer, while they mask their tank armies on the central front
in Europe, thus mesmerizing almost all of us, their main thrust in reality is with
Admiral Gorshkoff and the Cuban Foreign Legions and the East Germans,
because the East German security police are playing an important role in this.
But that main thrust is aimed at severing and/or outflanking the resources of the
southern hemisphere.
In the Persian Gulf roughly three-fifths of the world's estimated oil reserve
is now nearly encircled by allies of the Soviet Union, whether South Yemen,
Ethiopia, Syria, Iraq, and Afghanistan. The southern third of Africa from Zaire
on down is to minerals what Saudi Arabia is to oil. That is, about one-quarter of
the world's critical minerals so important for industrial health are in that
southern third of Africa. Those minerals are being outflanked and/or are under
seige by various forms of Marxist political warfare, insurgency, or guerilla
operations. And, of course, even in our own Caribbean, the same arc of
insurgency which has been drawn around the Persian Gulf is beginning to be
drawn around the oil reserves of Mexico. The island of Granada is probably gone.
A very large military strip is now being built there by Cuban workers and with
Libyan money, large enough even to accommodate the Backfire. It doesn't mean
the Soviets will bring the Backfire into the Caribbean but they would have the
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capability. Jamaica, as you know, is tilting. El Salvador may be simply the
stepping stone to Nicaragua, or Nicaragua the stepping stone to El Savador and
Guatemala. And one asks the question: Why bother with those smallish stepping
stones unless ultimately some grand strategist is looking at the oil of Mexico and
the oil of Venezuela.
In short, Soviet style geopolitics poses a very real raw materials threat to
the industrialized states of the northern hemisphere and this is not only
stemming from Gorshkoff's fleets and Soviet power projection, but for continuing
Soviet versatility in political warfare and guerilla operations. Now from
Moscow's point of view a resource war is low risk, low cost, low casualty, low
visibility, almost beneath the threshold of Western response. Although, thank
heaven, for La Belle France; France at least with her Foreign Legion and the
Moroccan troops and the French security services saved Zaire from the incursion
into Shaba Province, but as you all know, Zaire is still frightfully unstable and
almost certainly second, third, and fourth attempts will be made to destabilize
and take over that important area of the world. And I think we have to develop
more capability at the lower end of the spectrum of conflict to cope with this
problem.
In Khrushchev's day, it was sort of all or nothing for the Soviet Union.
Khrushchev could rattle his rockets and then you could either call his bluff or
back down. Khrushchev really did not have the capability to project limited
power into all corners. But Admiral Gorshkoff can now behave like the Tsar
married to Queen Victoria. He's got his Cuban Gurkhas and he can maneuver on
virtually every square of the chess board.
So, having tried to set forth in brief a problem, let me just spend five
minutes on what some people are trying to advance as a solution. For the past
seven years, a group of defense specialists, and I might say lawyers and
businessmen, retired military people from twenty different nations, have been
meeting together annually in multinational conferences, whether in Asia or on
the Continent or in Britain. In other words, delegates have been coming from
nations which border on alI of the Soviet's three fronts, whether the NATO front,
the Gulf front, or the Asian Pacific front, and they have been meeting to see if
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some new design is needed on the part of the Free Market economies to stem the
Soviet gambit of the resource war which, as I say, is a low visibility thrust that
doesn't really get handled by the normal existing defense arrangements.
NATO, for example, because of a flaw in its charter, cannot defend its own
mineral energy flank. I think all of you know that NATO cannot defend below
the Mediterranean. And yet, of course, Europe is beholden for its minerals on
southern Africa and its oil in the Persian Gulf. General DeGaulle, back in 1958
when France was still a part of NATO, proposed that this flaw be remedied, that
a special executive committee be set up--France, Britain, and the United
States--to deal with problems outside of NATO which nevertheless had an
enormous economic impact on NATO's vital interest. We turned General
DeGaulle down. Well, General DeGaulle's point is even more important today
than it was then. In a sense, by analogy, NATO is a mighty fortress in the desert,
and four hundred yards away is the water hole. And the NATO charter says we
can defend the fort from a direct assault but we cannot defend the water hole.
And it's extremely difficult to make any changes, because, as you know, all
NATO decisions must be unanimous so that Iceland or Norway or Denmark can
veto a proposal to create an intervention force for the Persian Gulf. And,
indeed, when these conversations have been brought up prominently by General
Al Haig during his years of tenure at NATO headquarters, the smaller countries
of the north did veto the discussion.
The delegates from these twenty countries--Australia and Japan and almost
all of NATO Europe, Britain, the United States--who have been meeting together
now for six years are talking about a new naval alliance of the southern ocean.
An alliance, in effect, would bring Japanese and Australian warships together
with British and American and French, hopefully German, warships, into the
Arabian Sea for the joint defense of the oil theater, for the joint and mutual
defense of the lines going back through the Moluccan Straits to Japan and around
the Cape to Europe and America. In fact, they are talking about a new
trioceanic alliance of key states on the Pacific, Indian Ocean, and Atlantic to
cope with the Soviet resource war gambit. And, of course, in addition to
warships, one would need increased intelligence and paramilitary capabilities.
But hopefully we would have at some stage the informal cooperation of the
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French Foreign Legion and the British Security Services and other intelligence
agencies as well as our own.
At first blush this certainly seems like the impossible dream but I point out
that thirty years ago our country did involve itself in two impossible dreams.
One was the Marshall Plan and one was NATO. With the Marshall Plan we raised
a shattered Europe out of rubble and ruin and with NATO we shielded it from
Stalin's aggression. If one in the present context talks about a trioceanic alliance
whose partners would be Japan and Saudi Arabia and Australia, and some day one
would hope Brazil and Argentina, one is not talking about allies who are in
rubble, ruin, and bankruptcy. One is talking about the Japanese yen and the
German deutsche mark and the Saudi Eurodollar and the high technology of
Germany and Japan. And I think a case can be made that for America to help
catalyze a trioceanic alliance for the 1980s, an alliance to bridge the twentieth
and twenty-first centuries, would take far less per capita commitment on the
part of the United States in this context than did bringing forth the Marshall Plan
and NATO when we largely had to do the job ourselves because our allies were in
rubble.
I'm happy to tell you that this is not simply an American notion. There are
committees in London now, in Paris, in Tokyo that are working on this sort of
study for joint and combined naval power in the Indian Ocean and for concerting
rapid deployment forces and possibly even special operations, and that there is
some hope that this is not so much the impossible dream as recalling the wisdom
of Winston Churchill who observed that to bring forth a new alliance may weigh
more in the balance of history than winning a battle by oneself. And in all of
this, it seems to me, again as a layman, the intelligence function, the
recementing of trust with allied intelligence services, and the regirding of
ourselves for special operations which might not be any more ominous than the
same sort of transnational politics by which the German Social Democrats helped
to save Portugal, by transferring funds and cadres to Lisbon at an hour of grave
peril, that those things can move forward and we can move out of a climate of
creeping defeatism about the accumulation of Soviet power across the board
towards a path in which hopeful options and alternatives are put forward for
serious discussion by professionals. And here, I think, is the great glory of what
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you've been involved with in this American Bar Association enterprise. Thank
you very much, Mr. Chairman.
Morris Leibman
Well, there's no comment on Frank but he's always inspiring. I do want to
express my deep thanks to Norm Nelson and all the people at the ABA for the
services and the food and the efforts and also to those who have been responsible
for all the recordings. Thank you very much.
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