COMMAND AND CONTROL, AS IT RELATES TO COMPLICANCE WITH LAW AND PROPRIETY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80M00165A002500110003-3
• Release Decision: RIPPUB
• Original Classification: C
• Document Page Count: 21
• Document Creation Date: December 15, 2016
• Document Release Date: April 5, 2004
• Sequence Number: 3
• Content Type: PAPER

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COMMAND AND CONTROL, AS IT RELATES TO COMPLIANCE WITH LAW AND PROPRIETY
HISTORICAL
Can past abuses by CIA be attributed to inadequate command
and control? Is command and control today adequate'to prevent
future abuses? Convincing replies to these two questions should
go a long way to satisfy Congressional critics that CIA is not
out of control, but is responsive not only to external oversight
from both the Executive and Legislative branches of the Government,
but to stringent internal monitoring for compliance with law and
propriety by line management, the Inspector General and the General
Counsel. Since Congress logically should be convinced by its own
past investigative results and current oversight endeavors, if not
by our own assurances, I have extracted some relevant quotations
from the Senate and House reports of last year. To set the "Rogue
Elephant" myth to rest, the Senate's own findings on CIA's past are
significant.
The Senate Select Committee, in pursuing its mandate, "focused
on three broad questions, one of which bore on command and control;
whether the processes through which the intelligence agencies have
been directed and controlled have been adequate to assure conformity
1
with policy and law". The processes referred to are of, two kinds:
(1) the process of external control, and (2) the process of internal
control.
A general conclusion which appeared in the Senate Select Com-
mittee's final report is: "The Central Intelligence Agency in broad
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1 Arp d R0VNe3e9fe '1 4W/05t:- C F B?MkW 1S6 AbU al Operations
With Respect to Intelligence Activities - United States Senate, Book I_,
Foreign and Military Intelligence; 1976, Pp_ 2,3
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terms is not 'out of control'", although the Committee found that
"there were significant limits to this control" from above the CIA.
Pursuing further the thesis that the problem lay in external, not
internal, control are the following additional quotes from the "General
Findings" of the SSC Report:
"The Committee concluded that U.S. foreign and
military intelligence agencies have made important
contributions to the nation's security, and generally
have performed their missions with dedication and
3
distinction". "The Committee also found that Con ress
failed to provide the necessary statutory guidelines
to insure that intelligence agencies carry out their
missions in accord with constitutional processes".
In addition to blaming Congress for inadequate external con-
trol, the Senate Select Committee, in its final report, blames the
Office of the President:
"The degree of control and accountability regarding
covert action and sensitive collection has been a function
of each particular President's willingness to use these
5
techniques". But "Presidents have not established specific
instruments of oversight to prevent abuses -- in essence,
6
Presidents have not exercised effective oversight".
1 - IBID, p. 427
2 - All italics here and hereafter are the drafter's
3 - IBID, p. 424
4 - IBID, p. 425
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In general terms the Senate Select Committee's History of the
Central Intelligence Agency (Section IV) states at the outset a
salient conclusion which refutes the rogue elephant thesis:
"The current political climate and the mystique of
secrecy surrounding the intelligence profession have
created misperceptions about the Central Intelligence
Agency. The.CIA has come to be viewed as an unfettered
monolith, defining and determining its activities independent
of other elements of government and of the direction of
American foreign policy. This is a distortion."
The House Committee on Intelligence (Pike Committee), although
failing to release its final report, arrived at the following even
more categoric conclusions concerning the control of CIA (if we are
to believe drafts of its report shown the CIA and the version of
the report appearing in The Village Voice):
"All evidence in hand suggests that the CIA, far
from being out of control, has been utterly responsive
to the instructions of the President and the Assistant
to the President for National Security Affairs".
Congressman Pike, in effect, accused CIA of being a supine
elephant, not a rogue elephant. In his eyes, CIA was too responsive
to higher authority -- its abuses were committed as a result of too
demanding command and control, not too passive or permissive control.
1 - IBID, BOOK IV, SUPPLEMENTARY DETAILED STAFF REPORTS ON FOREIGN AND
MILITARY INTELLIGENCE, p. 97
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What neither Congressional Committee stressed adequately
was the significant fact that all abuses or illegal activities,
except two specific cases in the drug experimentation field, were
identified, decried and corrected by CIA, itself, long before any
- ,.
investigation ever began or before the press launched serious
attacks. The role of the Committees essentially was not one of
discovery but one of publicizing and dramatizing past abuses.
COVERT ACTION
Below are described some Congressional conclusions of a more
specific nature. First, the subject of control over covert action
is summarized. The Senate Select Committee found:
"The CIA has not been free . . . to carry out
covert action as it sees fit. The Committee's investi-
gation revealed that on the whole the Agency has been
responsive to internal and external review and
authorization requirements."
In the case of Chile, singled out for a separate, in-'depth
report, the Senate blamed the President for by-passing the 40 Committee
machinery in the case of the "Track II" operation, but did not consider
this aspect of the operation as an example of CIA being out of control.
Other aspects of the Chile operation were carefully cleared by the
40 Committee. And the SSC's question: "Did the threat to vital U.S.
national security interests posed by the Presidency of Salvador
Allende justify the several major covert attempts to prevent his
1 - IBID, Book I, p. 447
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accession to power?" was answered in its report by the statement:
"Three American Presidents and their senior advisors evidently
1
thought so." The SSC report on Covert Action (Volume 7) states
categorically: "Executive command and control of major covert
2
action was tight and well directed." The SSC did criticize the
procedure in which CIA, itself, determined which covert action pro-
jects were submitted to the 40 Committee, and it felt that certain
intelligence operations, not submitted to the 40 Committee, had
political action implications requiring .40 Committee approval. But
except for a few possible cases of minor covert action (not docu-
mented) in the early 60's, the Senate did not suggest that covert
action operations had been carried out without the knowledge and
3
approval of at least the Director.
The House Committee which, unlike the SSC, had access to all
covert action operations submitted to the 40 Committee for the past
ten years disagreed with some of the covert action performed but
concluded, as mentioned above, that the Agency was "utterly respon-
sive to the instructions of the President and the Assistant to the
President for National Security Affairs" and was not "out of control".
The Pike Committee report added the following comment which
makes clear that in those instances in which the 40 Committee did
not specifically pass on CIA's recruitment of covert action assets
(sometimes called "superstructure") or other minor action operations,
at least the Director -- not subordinate officials -- provided approval:
I - IBID, Intelligence Activities, Senate Resolution 21, Volume 7,
Covert Action, p. 198
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- IBID, p. 199 t
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the CIA Director determines which CIA-
initiated covert action projects are sufficiently,
'politically sensitive to require Presidential
attention'."
ASSASSINATION PLANNING
Assassination plans represented an especially reprehensible
case of abuse in the covert action field. These cases were completely
aired by the SSG. There were split opinions on whether or how much
successive Presidents knew and approved such operations. While the
SSC quite correctly believed that the doctrine of plausible denial,
the use of euphemisms to describe "assassination", and the theory
that authorities granted one Director could be assumed to cover sub-
sequent Directors "created the risk of confusion where sober judge-
1
ments were most necessary", it did not suggest that such actions
ever took place without at least approval at the very top of the
Agency.
ABUSE OF CIVIL RIGHTS
Intelligence activities affecting the rights of American citizens
understandably loomed large in the abuse category of the Senate Select
Committee. This included infiltrating and surveilling groups of
American dissidents, dissemination of material collected on these
groups, and covert action designed to disrupt or discredit such groups.
The following general statement by the SSC seems to me to be a fair
one and one which places the blame where it belongs:
1 - IBID, Alleged Assassination Plots Involving Foreign Leaders,
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"We must acknowledge that the assignment which the
Government has given to the intelligence community has,
in many ways, been impossible to fulfill. It has been
expected to predict or prevent every crisis, fespond im-
mediately with information on any questions, act to meet
all threats, and anticipate the special needs of Presi-
dents. And then it is chastised for its zeal. Certainly,
a fair assessment must place a major part of the blame upon
1
the failures of senior executive officials and Congress."
The SSC blames the excessive power of the Executive built up
over the years and the failure of Congress to exercise the Congres-
sional check and balance role which is essential. But, whatever the
problem, the picture here is not one of a Central Intelligence Agency
out of control.
The CIA did not restrict itself to servicing FBI requests for
2
information on Americans, but "under White House pressure" the CIA
developed its own domestic counterintelligence program -- Operation
CHAOS. According to the Senate Select Committee final report
(Book II), "Director Richard Helms testified that he established the
program in response to President Johnson's persistent interest in
3
the extent of foreign influence on domestic dissidents". In 1969,
President Nixon's White House required the CIA to study foreign
1 - IBID, Book II, p. 290
2 - IBID, Book II, Intelligence Activities and the Rights of Americans, p. 99
3 - IBID, p. 100
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communist support of American protest groups. "In 1972 the CIA
Inspector General found 'general concern' among the overseas
stations 'over what appeared to constitute a monitoring of the
political views and activities of Americans . . .'" This led
to a reduction in the program but it was not terminated until March
1974.
However questionable this program may have been, even consider-
ing the context of the times, it is clear that it was undertaken and
sustained by two successive Presidents, and the IG machinery did at
least what it could to mitigate the program despite Presidential
pressure. Inadequate command and control was not the problem; over-
bearing command and control was the fault.
The opening of mail in the U.S. postal service was understand-
ably criticized by the Senate Select Committee. Not only was the FBI
aware of this program, but relied heavily on the CIA for the product
2
from it. The FBI, in fact, tasked the CIA. This program was thus
condoned by the FBI and Justice Department for many years.
3
The Attorney General's more recent findings on this program
are interesting. They include the following statements. The report
concluded that it was highly unlikely that prosecutions would end in
4
criminal convictions and recommended that no indictments be sought:
1 - IBID, p. 102
2 - IBID, p. 107
3 - Report of the Department of Justice Concerning Its Investigation and
Prosecutorial Decisions With Respect to Central Intelligence Agency
Mail Opening Activities in the U.S. -- 14 January, 1977
4 - IBID, p. 2
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. . . prosecution of the potential defendants
would be unlikely to succeed . . . because of the state
of the law that prevailed during the course of the mail
1
openings. . . . . . It would be mistaken to suppose
that it was always clearly perceived that the particular
mail opening programs of the CIA were obviously illegal."
The report continues:
. . . this case involves a general failure of the govern-
ment, including the Department of Justice itself, over the
period of the mail opening programs, ever clearly to address
and to resolve for its own internal regulation the constitu-
tional and legal restrictions on the relevant aspects of the
exercise of Presidential power. The actions of Presidents,
their advisors in such affairs, and the Department (of Justice)
itself might have been thought to support the notion that the
governmental power, in scope and manner of exercise, was not
subject to restrictions that, through a very recent evolution
of the law and the Department's own thinking, are now con-
sidered essential. In such circumstances, prosecution takes
on an air of hypocrisy and may appear to be the sacrifice of
a scapegoat."
The report chronicles the authority implicit in successive
high officials' actions. President Eisenhower's authorization was
1 - IBID, p. 3
2 - IBID, p. 5
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given in 1954. In 1958 FBI Director J. Edgar Hoover approved the
program. In 1961 Postmaster General Day was informed in some de-
2
gree. Both Director Helms, "a Cabinet officer" and individual
then serving on PFIAB have stated that Presidents'Kennedy and
3
Johnson were aware of the East Coast mail opening program. In
July 1969 the CIA Inspector General recommended that senior offi-
cials of the Nixon Administration should be informed and in June
1971 Director Helms briefed both Attorney General John Mitchell
4
and Postmaster General Blount. Former President Nixon has stated
he was aware of CIA's monitoring of mail between the U.S. and the
USSR and PRC, but there is no direct evidence that he was specifically
informed of mail openings. The product available at the White House,
5
however, made it quite clear that such had to be the case.
In sum,. CIA was acting with both implicit and explicit higher
authority in the mail opening programs.
TESTING OF CHEMICAL AND BIOLOGICAL AGENTS
The program for testing chemical and biological agents was
the only area where clearly inadequate command and control was found
by the Senate Select Committee. It concluded that this program raised
"serious questions about the adequacy of command and control procedures
within the Central Intelligence Agency (and military intelligence)
. . . The CIA's normal administrative controls were waived for programs
1
IBID,
p.
10
2 -
IBID,
p.
13
3 -
IBID,
p.
15
4 -
IBID,
p.
17
5 -
IBID,
p.
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involving chemical and biological agents to protect their
security. . . They prevented the CIA's internal review mechanism
1
from adequately supervising the program." Excessive compart-
mentation of the program was also criticized by the Senate
Select Committee. An observation made by the CIA Inspector
General that "the knowledge that the Agency is engaging in un-
ethical and illicit activities would have serious repercussions
2
in political and diplomatic circles. . ." went unheeded.
Early programs such as Project Bluebird in 1950 and Project
Artichoke in 1951 were approved by the Director and enjoyed good
intra-Agency coordination and control. MKNAOMI, begun in 1967 and
ended in 1970, had Director approval and was conducted in conjunction
with the Army's Special Operations Division at Fort Detrick.
MKULTRA, the principal CIA program involving the research and
development of chemical and biological agents capable of being used
in clandestine operations to control human behavior, was approved by
the Director on 13 April 1953. Various aspects of the program were
carriedcut in cooperation with universities, pharmaceutical houses,
hospitals, state and federal institutions and private research organi-
zations. The National Institute of Mental Health and the Bureau of
Narcotics also played important roles.
In 1963 the Inspector General learned that under the MKULTRA
program surreptitious administration of LSD to unwitting, non-voluntary
1 - IBID, Book 1, p. 386
2 - IBID, p. 386
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human subjects was being carried out. This program was then
known to and approved by the Director. As a result of the IG's
protest the testing was halted and tighter administrative controls
imposed. The program was completely terminated in the late 1960's.
The tragic case of Dr. Frank Olson in 1953 reveals an apparent
problem of command and control. Despite explicit warnings by the
Deputy Director for Plans (DDP) that his approval had to be given
before LSD human experiments were conducted, the head of the Technical
Services Division of DDP, Dr. Sidney Gottlieb, without such authoriza-
tion, went ahead with an experiment in which Dr. Olson unwittingly
ingested LSD without being told in advance. Olson had a severe emo-
tional breakdown shortly afterward and either jumped or fell to his
death from a hotel room in New York.
It can be argued that this was a case of personal irresponsibi-
lity on Dr. Gottlieb's part, not a breakdown of organizational command
and control. He was censured for his act by the Agency. Yet CIA did
assume responsibility, as evidenced by the fact it provided the family
death benefits and ultimately paid Olson's heirs sizeable damages,
accompanied by an apology. And the atmosphere of the times probably led
Dr. Gottlieb to believe that he had implicit license to conduct such
experiments. He has testified that he does not remember a DDP's memo-
1
randum requiring DDP authorization. The General Counsel concluded
that there seemed "to be a very casual attitude on the part of TSD
2
representatives to the way this experiment was conducted."
1 - IBID, p. 395, footnote 34
2 - IBID, 398 - Memo to the Inspector General from the General Counsel
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The shellfish toxin case was cited by the Senate Select Com-
mittee as the other specific failure of command and control in the
drug experiment area. It was, however, not so egregious a lapse,
of control as the show hearings in the Senate on this subject
signified. Even Senator Church stated in retrospect that the
hearings reminded him of a "hippopotamus pushing a pea". If the
CIA was a rogue elephant, the Senate Select Committee was a vain-
glorious hippo. The image of such a zoo is startling to say the least
and does neither organization justice.
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CURRENT SITUATION
Leaving the past and concerning ourselves with the present and
future, it is obvious that there now exists considerable oversight
machinery both in the Executive and Legislative branches of the
Government and a formidable matrix of law and regulation.
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LEGISLATIVE OVERSIGHT
On the Legislative side, the most comprehensive oversight
function is performed. by the Senate Select Committee on Intelligence,
although the Senate Armed Forces Committee, the Senate Appropriations
Committee, the Senate Foreign Affairs Committee and the House of
Representatives equivalents of these three Committees continue to
have significant oversight responsibilities. All of these Commit-
tees, for example, must be notified of covert action programs, once
approved by the President. The Appropriations Committees of both
houses play an important role in approving the Agency's budget. The
House Appropriations Committee has been particularly aggressive in
investigating the rationale and value of CIA's budget and has employed
a staff to carry out this function. The Senate Select Committee on
Intelligence receives information on questions of illegality and im-
propriety on a quarterly basis, as does the Intelligence Oversight.
Board. Various other committees of Congress have specialized in-
terests which permit them some degree of insight into CIA's functions.
Provisions are also being made to enable the General Accounting Of-
fice to conduct external audits of CIA under the aegis of the Senate
Select Committee on Intelligence.
While none of the Senate Select Committee's final recommenda-
tions have yet been converted into legislation or resolutions, ex-
cept the recommendation to establish an oversight committee (RES 400),
some probably will be in the near future. The Senate is also con-
sidering CIA charter revisions. In the meantime, various pieces of
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existing legislation have relevance to CIA and contribute to
command and control imperatives: The Freedom of Information law,
the Privacy Act, and Public Law 93-475, which includes a clause
on the authority of Ambassadors vis-a-vis CIA Stations.
EXECUTIVE OVERSIGHT
On the Executive side, the most significant control can be
found in Executive Order 11905 which includes a list of specific
prohibitions. While not a perfect document and one which may be
changed by the new administration, it has established useful opera-
tional ground rules. It has.also established an Intelligence Over-
sight Board within the White House to which all illegalities and
improprieties must be reported by the Inspector General and General
Counsel. The Special Coordination Committee of the NSC (SCC) which
inherits the OAG functions pertaining to covert action and sensi-
tive collection activities, brings appropriate cabinet level offi-
cials as well as the DCI and the Assistant to the President for
National Security Affairs together for consultation on covert action
proposals. Its recommendations provide a basis for the President
to find that their implementation is important to national security,
and to approve -them.
The Office of Management and Budget continues to play an im-
portant role in overseeing the Agency's budget, while the Justice
Department has an expanded review and approval function in certain
fields of law and counterintelligence.
CIA'S INTERNAL COMPLIANCE MACHINERY
The record of CIA's evolution from its creation in 1947 to the
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present is one of changing organizational posture to sharpen
the focus of program direction. The steady growth of administra-
tive procedures and controls represents growing sophistication of
management techniques. Similarly, internal controls represented in
the General Counsel, Inspector General, Audit Staff and budget re-
views presided over by the Comptroller, serve to strengthen manage-
ment's control over the Agency.
Throughout the Agency's history, regulations for management
procedures and controls have progressed as the understanding of con-
trol requirements developed. The main problem confronting managers
of an intelligence organization has been the handling of activities
presenting special security considerations. These procedural provi-
sions culminated in August 1973 with the comprehensive policy and
program directives of the DCI, addressing not only procedures but the
propriety of activities in which the Agency had engaged over the pre-
ceding years.
CIA's recently adopted internal measures and machinery for com-
pliance with law and propriety are impressive. Since the conclusion
of the Senate Select Committee proceedings and with the advent of
Executive Order 11905, the CIA has taken a great many steps to preclude
future acts of illegality or impropriety.
The Executive Order stimulated the issuance of a comprehensive
Agency Regulation based on it
3 additional Regulations, and
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4 Headquarters Notices. The DDO has issued, or is in the process of
issuing, some 17 Instructions related to the new Executive Order guide-
lines. More are in the offing. It should also be noted that the DD0
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has instituted a system of counterintelligence inspections of its
overseas stations which besides having a security function makes
certain that overseas operations are in compliance with special
provisions of the Executive Order pertaining to the rights of
U.S. citizens.
CIA's Inspector General and General Counsel, in compliance
with Section 6(b) of Executive Order 11905, submitted quarterly re-
ports to the IOB in July, October and December of 1976, and most
recently in February 1977, describing Agency activities that in
their views raised questions of legality or propriety.
The Office of Training has included in the curricula of
several of its training courses lectures on Executive Order 11905
and Headquarters Regulation which include the provisions of
EO 11905.
CIA's Office of the Inspector General has conducted the fol-
lowing inspections designed to include the discovery of illegali-
ties and improprieties:
-- Special inspections of all Directorates (DDO, DDS&T,
DDI and DDA) were begun in mid-summer 1976 and finished
by the end of 1976. They were explicitly designed to
make certain that all components of CIA were conversant
with and in compliance with EO 11905 and other regula-
tory laws and regulations.
-- Traditional, comprehensive inspections, which included
but were not limited to checking for violations of EO
11905 and other applicable laws and regulations, were
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conducted for those sub-components of CIA Directorates
considered to have potentially the most problems with
issues of legality and propriety raised by Section 5
of EO 11905. Five such component inspections were
completed:
, DDS&T/Office of Technical
Service, DDA/Office of Security and DDO/East Asia
Division
-- A survey covering various aspects of CIA's relationships
with U.S. private business has been conducted.
-- Special, short surveys have been conducted on a variety
of ad hoc subjects.
The Inspector General additionally recommended and set in mo-
tion several reviews by appropriate components on the following
specific issues:
-- CIA funding. of activities conducted through or in
behalf of other U.S. Government agencies.
-- Operational activities which may produce information on
United States persons.
-- Operational activities which may raise issues of com-
pliance with state and local law.
-- Residual operational contacts which may violate Agency
policy with regard to contacts with the media.
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The Inspector General's Office is currently inspecting
DDO's European Division,
CIA anti-narcotics activities, and CIA's compliance with the
Freedom of Information and Privacy Acts.
The Office of the General Counsel has been a principal con-
tributor to the development of the regulations and other directives
mentioned above. It has also played the lead role in the interpre-
tation of the various provisions of EO 11905 in the myriad of
factual situations in which those provisions must be applied. In
this connection the Office has maintained a steady dialogue with the
divisions of the Justice Department, principally the Office of Legal
Counsel, that concern themselves with EO 11905 matters.
The Audit Staff of the Inspector General's Office has been
indoctrinated in those provisions of EO 11905 which relate to law and
propriety and were instructed to be alert to them in the conduct of
over 100 audits which have taken place from 15 April 1976 to this
date.
CONCLUSIONS
From the foregoing, it can be fairly concluded that there is
more than adequate machinery for oversight, external and internal,
Executive and Legislative. There is still an educative process taking
place by which Agency officers at all levels are becoming familiar with
the intricacies of the new laws and regulations. But what has been
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made clear by the various inspections conducted by the Office
of the Inspector General is that whatever one may conclude about
the pastthere does not now exist a predisposition to evade law,
regulation or propriety. To the contrary, there is some tendency
to over-interpret regulations, to over-react to prohibitory is-
suances and to be hyper conservative in operational situations.
The challenge of Agency leadership at all supervisory levels is
to maintain the creativity, aggressiveness and imagination which
has made the Agency extremely effective in the past, yet to to so
within the bounds of law and propriety, and to arrive at an ethic
consensus consistent with the values acceptable to the American
society.
Approved For Release 20Qyp4/,Q5J05.. CIA-RDP,8QI100165AO02500110003-3