LETTER TO DAVID J. LLEWELLYN FROM STANSFIELD TURNER

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP99-00498R000300050020-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 10
• Document Creation Date: December 20, 2016
• Document Release Date: February 28, 2007
• Sequence Number: 20
• Publication Date: February 27, 1979
• Content Type: LETTER

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The Director of Central Intelligence
i Evecu; . e
2 7 FEB 1979
Dear Mr. Llewellyn,
I am pleased to contribute the enclosed article
for the DICTA column of the Virginia Law Weekly. It
addresses the extremely important and difficult task
being carried out today to draft charter legislation
for United States' intelligence agencies. I hope it
will interest your readers.
I wish you and DICTA continued success.
Yours sincerely,
STANSFIELD TURNER
Mr. David J. Llewellyn
DICTA Editor
Virginia Law Weekly
School of Law, University of Virginia
Charlottesville, Virginia 22901
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CHARTER LEGISLATION
FOR THE INTELLIGENCE COMMUNITY
by STANSFIELD TURNER
Director of Central Intelligence
26 February 1979
This year, the executive and legislative branches of the government
will attempt to develop legislative charters for America's intelligence
agencies. This will be the most significant legislation related to
intelligence activities since the National Security Act of 1947 which
created those agencies. For the first time, legislation will specifically
authorize activities in which intelligence agencies may engage, establish
limiting boundaries, and proscribe some activities altogether. It will
remove the umbra of uncertainty from this sensitive but vital function
of government. It is a step welcomed by both the intelligence agencies
themselves, which see it as a potentially helpful degree of guidance,
and the public, for whom it will provide a reassuring element of account-
ability. At the same time, it is neither a simple task nor one without
some degree of danger for the intelligence capabilities on which the
nation depends.
The final report of the Senate Select Committee to Study Government
Operations with Respect to Intelligence Activities (Church Committee)
recommended
"1. The National Security Act should be recast by omnibus
legislation which would set forth the basic purposes of national
intelligence activities, and define the relationship between the
Congress and the intelligence agencies of the executive branch.
This revision should be given the highest priority by the
intelligence oversight committee(s) of Congress, acting in
consultation with the executive branch.
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2. The new legislation should define the charter of the
organizations and entities in the United States intelligence
community. It should establish charters for the National
Security Council, the Director of Central Intelligence, the
Central Intelligence Agency, the national intelligence components
of the Department of Defense, including the National Security
Agency and the Defense Intelligence Agency, and all other elements
of the intelligence community, including joint organizations of
two or more agencies.
3. This legislation should set forth the general structure
and procedures of the intelligence community, and the roles and
responsibilities of the agencies which comprise it.
4. This legislation should contain specific and clearly
defined prohibitions or limitations on various activities carried
out by the respective components of the intelligence community."
Last February, the Senate Select Committee on Intelligence tabled
a draft set of charters (S.2525). Since that time, the Administration
has been working closely with the members and staff of the Senate
committee to examine the spectrum of views on each issue and move toward
a mutually acceptable and workable draft. While there has not been
uniform agreement, there has been a constructive dialogue during which
differences have narrowed.
The main area of differences today relates to protecting Constitu-
tional and privacy rights of American persons especially when those
rights limit or inhibit the collection of legitimate foreign or counter-
intelligence information. All agree that these rights must be protected.
But the degree of that protection, the methods by which that protection
should be exercised, and the conditions under which exceptions may be
made remain unresolved.
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When considering the degree of control and how that control should
be applied, either an over-reaction or an under-reaction to past alleged
or real abuses would be a mistake. If we under-react by assuming
that similar abuses will not recur, we would underestimate how quickly
lessons can be forgotten. If we over-react by passing excessively
restrictive legislation, intelligence capabilities could be emasculated.
As with most things, a balanced approach offers the greatest chance of
ensuring that we retain strong intelligence collection and analytic
capabilities, yet restrict those capabilities to proper and legal use.
Unfortunately that balance point has been elusive. It seems to be
in different places depending on where one stands and the importance
one gives to the sometimes elegant subtleties of the issues. How then
to achieve that balance?
A simplistic approach advocated by some is to prepare a laundry list
of all activities which offend our sense of justice or morality or fair
play and prohibit them. While seeming to have the advantage of straight-
forwardness, it is easier said than done, and the danger of self-delusion
is high. Any serious attempt to draw up such a list will demonstrate
first that, given human inventiveness, it is probably impossible to
anticipate every conceivable activity we might want to prohibit; second,
a case for maintaining a capability in reserve can be made for even the
most odious activity (e.g., assassination in the case of Hitler); and
third, no two lists will be the same or, in some cases, even similar.
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Instead, a two-part system comprised of regulations on the one
hand and oversight on the other has a greater potential for effectively
controlling intelligence activities without reducing overall capability
or the ability to respond quickly to unique situations. Through regula-
tions it may be possible to prohibit some few activities completely. For
example, outside of wartime, assassination should be prohibited as it is
now in Executive Order 12036. But, in many other cases, clear prohibition
would be either impossible or unwise. Nonetheless, control can be
exercised through guidelines or restrictions which establish boundaries
within which the intelligence community would be expected to work. The
scope and detail of specific prohibitions and guidelines are now being
debated.
The second part of this system, oversight, can make accountability
possible and preserve a degree of flexibility which is not possible with
regulations alone. Here classification of documents and activities is a
significant oversight problem. Much intelligence work cannot be done
unless it is kept secret. Terrorist groups cannot be infiltrated to
learn and thwart their plans; relationships cannot be established with
foreigners willing to help us unless those relationships can be kept
secret; friendly foreign intelligence services will not share information
if we cannot keep both it and the fact that they gave it to us secret as
well. Yet, the very freedoms we seek to protect by being better informed
can be undermined by secrecy. Secrecy yields power. Any kind of power
can be abused; secret power has an even greater potential for abuse.
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Oversight must be able to exercise control over intelligence activity
despite the need for secrecy. The means of ensuring this special kind of
accountability exists today.
Effective oversight is exercised by the executive branch, by the
Congress and by the public. Understanding their respective roles and
incorporating them into the proposed legislation will make the drafting
of prohibitions and restrictions easier. It can provide a workable
solution to many of the seemingly intractible, substantive issues.
In the past, public oversight was impossible because the general
public had no access to information. That is no longer true. Revela-
tions, public inquiries and the Freedom of Information Act have made the
intelligence community and what it does more visible and more accessible
than ever before. Additionally, in the last two years the community has
adopted a policy of greater openness. Intelligence community analysts
attend professional conferences in greater numbers, present papers, and
publish articles; a public affairs director attempts to answer press
inquiries candidly; and there has been a major effort to share analysis
through the declassification and publication of intelligence studies and
analyses. More than two of these each week have reached the public for
the past two years on subjects as diverse as Soviet civil defense
capabilities, international terrorism, and the world energy situation.
The press has performed commendable journeyman's work for the public
in overseeing the intelligence community. The renewed investigative
bent of the press has been instrumental in probing areas heretofor
completely unknown to the general public. While much of this has been
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constructive, some has not been and has harmed important capabilities.
These effects raise serious contradictions and potential problems for
the long term unless the press demands of itself a consistently high
level of responsibility. Unlike a court, the press can return a finding
of guilty through accusation alone. The power to accuse in public is a
profound power which is just as susceptible to abuse as any other power.
Consequently, while the press performs an important oversight function,
it must proceed with extreme caution. It must be conscious that it must
deal generally with unclassified or, at best, leaked classified information.
It seldom has all the facts. It is often at the mercy of sources whose
motives are not always clear. It must often make judgments on how
things seem rather than how they are. Conclusions drawn on the thin ice
of conjecture can render a grave disservice to the press, the public it
serves, and to the institutions of government.
Unlike the general public or the press, executive branch oversight
has complete access to the intelligence community and its activities
because the intelligence function is an instrument of that branch. The
President is personally and directly responsible for all intelligence
activities. Although he normally exercises that responsibility through
the National Security Council, he is informed of sensitive programs
and approves every covert action in writing. The concept of "plausible
deniability" is no longer operative. Beyond that, his support of the
community's full cooperation with the Congress is a vital link for a
substantially stronger accountability. He requires that the Congress be
kept fully informed and have access to all the information necessary to
exercise oversight.
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A second form of executive branch oversight is through the Intel-
ligence Oversight Board. The IOB is comprised of three distinguished
citizens from outside the government to whom anyone may go directly
should they suspect that an intelligence agency is doing something
illegal or improper. The IOB investigates allegations and reports
findings directly to the President. The Director of Central Intelligence
as well as all other officials of the intelligence agencies are removed
from this process and can exert no influence on it.
Finally, the legislative branch oversees intelligence activities.
The record of the Congress may instill no greater degree of confidence
in skeptics than that of Presidents, but the fact remains that the
Congress is the only elected body totally independent of the executive
branch. There is, therefore, assurance that two independent branches of
government have access to what the intelligence community is doing.
Two committees in the Congress are devoted exclusively to intel-
ligence oversight: the Senate Select Committee on Intelligence and
the House Permanent Select Committee on Intelligence. They have clear
jurisdictional lines to the intelligence community and have not been
reluctant to exercise them. In the past, intelligence information was
shared with a few key members of the Congress who generally wanted to
know as little as possible. They in turn shielded the community from
the rest of the Congress. Today, the two select intelligence committees
aggressively concern themselves with all community activities and accept
a degree of responsibility for those activities.
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Oversight, as exercised today, is a success. The combination of
informed inquiry, dialogue, and acknowledged accountability has permitted
an unprecedented degree of control by overseers and, at the same time,
an increased sense of responsiveness to the national will by the intelli-
gence community. The fine tuning of this process continues but, by any
standards, it is working well. Unfortunately, that very success could
be the most serious threat to the completion of charter legislation in
the near future.
If the major underlying reason for legislation has been to gain
control over the intelligence process, that has been largely accomplished
through existing oversight. Consequently, for that reason, if for no
other, the pressure for formal charters is lessened. Further, any
attempt to lay down definitive prohibitions and guidelines which can
stand alone is so difficult and so controversial as to encourage partici-
pants to just give up if any other recourse can be found. Leaving it to
oversight is a tempting recourse. But, to abandon present efforts there
would be to leave the job half done and would be a mistake.
Charter legislation has two purposes: first, to impose external
controls on intelligence activities and second, to provide both authority
and guidance for those who must carry out those activities. Oversight
can ensure the former, it cannot substitute for the latter. Intelligence
professionals deserve a clear statement of what this nation wants and
expects of its intelligence service. Comprehensive legislation must
include that statement in the form of general prohibitions and restrictions
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4 _ reflecting national values and desires balanced by an oversight process
which can interpret those desires over time and in specific situations.
By institutionalizing a two-part system as I have described, one part of
which exists now, this legislation can be substantively simple yet serve
its purposes well. This goal is within our reach and deserves all
support and encouragement.