NSC MEETING ON INTELLIGENCE

• Document Type: CREST
• Collection: Library of Congress
• Document Number (FOIA) /ESDN (CREST): LOC-HAK-337-1-4-2
• Release Decision: RIFLIM
• Original Classification: S
• Document Page Count: 41
• Document Creation Date: January 11, 2017
• Document Release Date: June 8, 2010
• Sequence Number: 4
• Publication Date: January 9, 1976
• Content Type: MEMO

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THE WHITE HOUSE
WASHINGTON
MEMORANDUM FOR: BRENT SCOWCROFT
FROM: WILLIAM HYLAND
SUBJECT: NSC Meeting on Intelligence
community (Tab D). If so, all other issues flow from this basic deci
If not, a great deal of work will still be required to take up the other
basic issues -- oversight, restrictions, secrecy, and a host of legal
issues (Tabs D and E)),
for the President, as well as a summary of the House and Senate Com-
mittees' legislative proposals.
In my view the overriding issue that must be resolved first is whether
there is going to be a major structural reorganization of the intelligenr;er
Attached are a series of summaries of the large. decision book prepared.
If you can only read one thing, I suggest you read Dick Ober's summary
SECRET
MORI/CDF C02841666 pages 12-16
C03206707 pages 18-20
C03089702 pages 21-28
C03206809 pages 29, 31-37
ON-FILE NSC RELEASE
INSTRUCTIONS APPLY
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INDEX OF SUMMARIES
(Corresponds to the Index in the President's White Book)
Tab A
Tab B
Tab C
Memorandum from Jack Marsh
Principals and Policy
Oversight and Restrictions
Tab D Organization and Management
Tab F Legal Issue Paper and Draft Executive Order
Tab E Secrecy
Tab H
Imposing Restrictions
Preliminary Legislative Proposals
Summary of House and Senate Select Committees
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has an ''historical opportunity" to change the organization and manage-
ment of the intelligence community while addressing the specific abuses
that are the subject of both Congressional and public attention.
Jack Marsh opens his memo by pointing out that the President
He then points out that the exposition to follow is meant to acquaint
him with the scope and nature of such an undertaking as well as to familiar-
ize himself with the format in which future decision papers on this subject
will be forwarded.
General) once the President has absorbed the contents to discuss the
subjects arrayed in the book and to ascertain the views of his senior
He suggests an NSC-expanded meeting (to include the Attorney
advisors.
Comment
The assumption is conveyed, without argument, that major
changes are needed. This, of course, plays right into the hands of
Congress by accepting their similar assertions. Since neither Marsh
nor the Congress are substantial users of national intelligence -- the
primary product of the intelligence community -- it is difficult to see
how such an assumption can be made without support from more know-
ledgeable quarters. The ans ver, of course, is that "such a reorganization
is needed to counter anticipated Congressional demands for same."
Whether or not this, in-and-of-itself, is valid grounds for pursuing
reorganization is questionable.
The NSC/OMB study acknowledges that while there is no agree-
ment by the study participants that any reorganization is necessary, there,
is agreement that the Congress will propose major reorganizations, and
that therefore the President should have his own options available.
variety of quarters (other committees with vested interests, Executive
the intelligence community will be met with strong resistance from a
lation proposed by a committee in Congress calling for major changes in
budget for review. There is also the distinct possibility that any legis-
DCI having budgetary control so as to provide only one intelligence
Tabl, the conclusion is that the Congress is primarily interested in those
changes that would make their goal of controlling events easier; i. e. , the
On the other hand, if one looks closely at the organizational impli-
cations of what the two select committees have come up with so far, (see
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Branch elements slated to lose within the community if such legis-
lation were enacted, etc. )
In sum, there are enough issues such.as correcting past abuses,
facilitating oversight requirements of Congress, etc. , not necessarily
involving reorganization to go around. To presume that major changes ---
for whatever reason -- can be effectively dovetailed with acceptable
solutions to these issues is at best ambitious, and at worst too fro.ught
with unknoxrns to pursue at this time.
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Principles and Policy
The first section (entitled "Introduction") attempts to organize
conceptually the goals toward which the President should move in addres-
sing the role of the Intelligence Community in past abuses. The point
is made that the culmination of several investigative activities (the two
Select Committees, the Rockefeller Report, the Murphy Commission
Report, etc. ) provides an unparalleled opportunity to address in the
process -- perceived deficiencies in management, the protection of
sources and methods and the quality of the intelligence product. The
goals are therefore defined as:
elimination of abuses,
improvements in management,
improvements in quality of product,
increased protection for sources and methods.
In order to reach these goals, certain problems must be over-
come. These problems, or needs, must be met in order to accomplish
the goals stated above. These needs are defined as:
the need for explicit charters for all intelligence functions,
the need to clarify intra-community relationships,
the need to clarify relationships with the Congress
The need for a coherent strategy is also mentioned with respect
to Congress, the public, and regarding Presidential direction to the
community itself, but it is pointed out that any elaboration of such a
strategy must await fundamental decisions with regard to the Intelligence
Community as a whole,
intelligence community. It is pointed out that it is necessary to dis-
tinguish between providing information and services on the one hand,
and policy advice on the other. If the latter is desirable then a way
The second section discusses the need for a charter for the
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member of the NSC). The assertion is made that the lack of a charter
for specific components of the intelligence community has led to ambig-
uities and unclear guidelines in this respect.
should be found to increase participation by the heads of intelligence
organizations in major policy decisions (i. e. , the DCI as a statutory
Two subsidiary policy issues are posed and options are provided
for each. The first asks if the charter for the community should institute
greater accountability. The first option is to visibly increase account-
ability by streamlining the chain of command to insure specific individuals
are responsible for specific community actions. This would help prevent
abuses and encourage efficiency. An example is decisions being made
throughout the community regarding electronic surveillance -- making it
difficult to fix responsibility.
The second option is to not change the existing charter but to
move forward administratively to correct.deficiencies within the present
system. The argument is made that most of the criticism involves
aberrations not caused by. basic flaws and to alter the charter would
inhibit necessary flexibility. This exposition is followed by several
charts depicting the various line and staff relationships within the com-
munity with regard to resource authority versus production.
been stopped and that future activities of this sort will be prohibited by
that there have been abuses (assassination activities), that these have
The second subsida.ry policy issue involves authority for covert
action. It is pointed out that the President has asserted two principles
regarding covert action. The first is that such activities are in the
national interest and should not be prohibited by statute. The second is
Executive Order.
trative. The arguments for a statute are diffuse while those for
Congress has seen these three issues together as constituting a lack of
accountability. Various pros and cons are listed as to whether or not a
charter for the intelligence community should be statutory or adminis-
The third section of the chapter addresses the Executive-
Congress relationship. It is pointed out that in addition to correcting
abuses, the issues of reporting to Congress as well as proper over-
sight by Congress have arisen because of the vagueness of the 1947 act.
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has already been crossed" theory).
The last section addresses the intra-community relationship
problem in terms of the DCI's role as an objective advisor to the
President. The relationship between the DCI and the Secretary of
Defense is briefly defined. The role of the NSC staff: is depicted as
being a critical conduit,of intelligence to the President primarily
through their own analyses of intelligence products and their role as
"managers of the producer /consumer dialogue." Guideposts are listed
for the President's consideration in making any decisions concerning
organization and management whicb,in effect, describe the present state
both) and the other to try to negotiate a compromise (based on "the. bridge
administrative action fall on the side of insuring flexibility in pursuing
whatever policy is extant. Two options are posed: One being to oppose
all forms of accountability (based on the assertion that intelligence and
foreign policy are intertwined and therefore the Executive should run
of affairs:
Competition in intelligence production
DCI needs "base" (CIA leadership) to remain independent
DCI direct access to the President.
Technical creativity retained (U-Z, Glomar, etc. )
Charts also accompany this section which depict examples of
information flow through the intelligence community.
Comment
correction of abuses. If it is necessary to address this chapter in the
meeting, I would point out that "most of the issues (whether valid or not
The chapter is poorly organized and thoroughly confusing to read.
The assumption in drafting it was obviously that organizational changes
are expected and therefore an attempt had to be made to relate the various
aspects inherent in such changes to the more obvious task at hand
are covered."
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Oversight and Restrictions
This chapter discusses the primary areas in which flagrant
abuses of human rights have occurred; i. e. , the domestic activities
of the FBI and the CIA, and the resultant perceived Executive and
Legislative oversight requirements.
The jurisdictional questions involving CIA and FBI activities
in the U.S. are briefly discussed, as well as the pros and cons of
whether the CIA or the FBI should have exclusive authority to collect
foreign intelligence inside the U. S. , whether such authority should be
shared, whether one should share information that the other is
prohibited by law from gathering, etc. No conclusions are reached.
Various methods of restricting FBI activities which in the past
have resulted in abuses are discussed primarily in terms of whether
statutory changes, Executive orders, internal Justice Department
regulations, or various combinations of all three would constitute the
best fix. The tentative conclusion is to await forthcoming Justice
Department guidelines and build on those in seeking a solution.
Restrictions on domestic activities of the foreign intelligence
agencies are discussed by reviewing the draft Executive Order on
this subject as well as the remaining points within that draft order
still at issue within the Executive Branch. The proposed restrictions
concern the rights of U.S. citizens regarding first and fourth Amendment
safeguards, the use by CIA of proprietaries in other than intended ways,
and NSA and CIA assisting law enforcement agencies by virtue of
enjoying a certain "immunity" from domestic legal safeguards. As
might be expected, the unresolved disagreements involve exceptions
to the restrictions, rather than the restrictions' themselves. The two
major issues concern sharing of information and cross-operational
arrangements between the FBI and certain intelligence agencies which
allow one or the other to gain information not otherwise obtainable
under. current statute or directives. The pros and cons in each case
are laid out but no conclusions are reached.
The third section of this chapter addresses oversight within the
Executive Branch. Current oversight arrangements within the
intelligence community and the potential of oversight from outside
(Rockefeller and Murphy Commissions both recommended PFIAB purview
the community er~ examined. The conclusion in the first instance is
!j
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in flexibility, together with a greater risk of disclosure are cited
for either unilateral or community-wide oversight being effective are
not promising. Oversight emanating from a strengthened PFIAB, the
NSC, or even the Attorney General might be more effective but each
has its drawbacks as. well. No conclusions are reached, but the
specific example of executive oversight regarding covert action is
used to support specific ways of improving oversight where a
hierarchical structure exists (NSC, 40 Committee, CIA). The
reappointment of the Attorney General to the 40 Committee, adding
an independent NSC staff to propose pros and cons of operations,
and a reinstatement of formal meetings are suggested.. A decrease
leader within the community (strengthened DCI, etc. ) the prospects
that past oversight, has not worked and until there is a pre-eminent
as cons to these suggestions.
fact that there is a diffusion in responsibility from the "old days" within
,Congress regarding intelligence activities is poirite \it. A broad dis-
cussion ensues, covering the problems of limiting access and disclosure
of sensitive matters to Congressional committees, the need for non-
statutory, and thus informal, agreements to facilitate cooperation, etc.
The conclusion is that either a joint oversight committee or one in
each House is preferable to what lies ahead if jurisdiction and over-
sight remain diffused among six committees.
The fourth section deals with Congressional oversight. The
The dilemma inherent in protecting intelligence budget figures
while attempting to meet increased Congressional queries for dis-
closure is discussed, the only option mentioned being the NSC/OMB
study recommendation to provide Congress with a classified annex
to the annual budget depicting only "big dollar" amounts. No conclusion
is reached.
clusion being that there should be a centralized collation and distri-
bution point within the community to insure coordination and appropriate
caveating before dissemination to the Hill. Ground rules for such
dissemination are also discussed and the tentative suggestion of either
a joint Executive -Congressional classification board or an expanded
Case act (give to Congress under an injunction of secrecy) is offered,
although it is pointed out that the Pike agreement, while similar to the
meet increasing demands is discussed at length with the only con-
The issue of providing substantive intelligence to Congress to
latter, has provided little protection.
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The needs of the public regarding oversight is mentioned, the
main suggestion being that the PFIAB be required to issue an annual
report to the public on the "activities and effectiveness of the '
intelligence community," although it is pointed out such a report would
be fraught with hard calls. as to declassification.
Cornme nt
of the art regarding solutions to these specific issues.
This chapter is a fairly complete exposition of those issues not
necessarily pertaining to reorganization but which will probably have
to be addressed in one way or another by the President. There is,
however, not much of substance in the way of recommended solutions
or even of specific approaches to such important issues as CIA/FBI
interface or safeguards as to NSA activities. The draft Executive
Order on restrictions (summarized in the chapter), which is a product
of many weeks of inter-agency coordination, is testimony to the- state
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SUBJECT: Summary of Draft Report to the President
FROM: Richard Ober
NATIONAL SECURITY COUNCIL
MEMORANDUM FOR: WILLIAM G. HYLAND
on Organization and Management of the
Intelligence Community
Attached, as requested, is a summary of the
December report of the OMB-chaired study group.
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Summary of the
Draft Report to the President on
Organization and Management of the
Foreign Intelligence Community
The Draft Report to the President on the Organization and Management of the
Foreign Intelligence Community, dated December 16, 1975, discusses and
sets forth alternatives for change in the present Intelligence Community struc-
ture. These alternatives are designed to ensure quality intelligence on a
timely basis, the maximum use of limited resources and the prevention of
future abuses. The issues explored deal with the basic structure of the
Intelligence Community as well as with possible modifications of the NSC
and Executive Office structures.
LEADERSHIP OPTIONS
Four major options with two variations on the organization and leadership of
the Intelligence Community are identified in the study. A chart summarizing
the elements of these options is at page 31A of the report.
? Option 1 - Centralized National Intelligence Program
This option creates a new agency headed by a- cabinet level Director of
Intelligence (DI) vested with resource and management control over all
major intelligence programs (departmental intelligence components are
retained). It also makes the DI responsible for collection and production
of intelligence.
(None of the departments and agencies responding favored this centraliza-
tion option.)
? Option 2 - Centralized Resource Control
This option strengthens the present DCI by giving him resource control
over the national intelligence programs but leaves Defense's present
operational control of these programs intact. It also separates this
strengthened DCI from any operational or line control in the Intelligence
Community but would allow him to establish priorities and requirements
and produce national estimates.
? Option 2A
MORI/CDF
C02841666 pages
12-16
Same as Option 2 only this option provides for the retention of line
control over present CIA production by the strengthened DCI.
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A Option 3 - Departmental Emphasis
In this option the present DCI would, with his Intelligence Community
Staff and his National Intelligence Officers, be isolated from any manage-
ment and resource control of any individual agency in order to make
him a truly independent Community leader. The new leader would
produce NIEs, review budgets and establish collection and production
requirements. Resource and production control would remain with the
appropriate departments and agencies.
(Defense and JCS favor this option, modified to further enhance Defense's
role.)
r Option 3A
Same as Option '3 except that present CIA production responsibilities and
resources for intelligence analysis would be transferred to the relevant,
departments.
(None of the departments and agencies responding favor this option.)
Option 4 - Modified Current Arrangements
Without changing the basic organization of the Community, this option
gives the DCI a second deputy for line authority over CIA so that the DCI
can concentrate more on Community responsibilities. The DCI would
retain all his other current responsibilities and in addition, would chair
an Executive Committee (EXCOM) for SIGINT.
COMMENTS ON LEADERSHIP OPTIONS SUBMITTED BY DEPARTMENTS
AND AGENCIES
Comments on the leadership options summarized above were requested of
the agencies and departments which participated in preparing the Draft
Report for the President. The key elements of those comments submitted
are summarized below:
? Department of Defense
Defense's choice resembles Option 3 (Departmental Emphasis) which
has been the Defense/JCS option throughout the study period. Modifica-
tions desired by Defense further weaken the reconstituted CIA (by
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removing all SIGINNT and all overhead reconnaissance functions to Defense)
and further weaken the community leader ("DFI") by abolishing the NRO
EXCOM (now chaired by the DCI), by transferring the NPIC (National
Photographic Interpretation Center) to Defense and by adding a senior
military officer as a deputy to the "DFI."
The JCS also favor a modified Option 3 which is essentially the same as
that of Defense.
? Director of Central Intelligence
The DCI clearly finds the study inadequate, particularly in not high-
lighting the need for an impartial non-departmental analytical capability
to advise the President and the NSC. A second major weakness seen
by the DCI is the failure of the study to clearly recognize the present
preponderant voice of Defense in intelligence and to focus attention on
the central problem of the relationship between the DCI and the Secretary
of Defense. The DCI concludes that the options presented should not be
used as a basis for decision but can illustrate the range of choices and
serve to elicit general guidance from the President for further study and
recommendations. In specific comments on the options, the DCI dismisses
Option 1 (Centralized Program) as not meeting Defense needs and Option 3
(Departmental Emphasis) as destroying the DCI's present limited authority
and making independent intelligence advice at the NSC level impossible.
On the premise that the results of a major reorganization will not justify
the attendant disruption, the DCI favors a "modified" Option 4 (Modified
Current Arrangements) because he considers the present Option 4 too
weak. If, however, the President desires a major change, the DCI favors
some form of Option 2 (Centralized Resource Control) after further study
by the Departments .
A major change to Option 4 proposed by the DCI is in the committee
structure. The DCI would consolidate the present structure into two
committees, both chaired by the DCI. One would be an "EXCOM of the
NSC for Intelligence" responsible for Community management and policy
matters which would have as members the Deputy Secretaries of State
and Defense. This committee would. control all important intelligence
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assets and have approval authority over the National Foreign Intelligence
Program excluding tactical and departmental components. The proposed
"EXCOM of the NSC for Intelligence" would apparently exclude the Assis-
tant to the President for National Security Affairs and put the DCI, as
chairman, over the policy-making consumers, State and Defense. The
EXCOM's responsibilities would include binding approval authority over
the National Foreign Intelligence Budget, thus coming close to the central
resource control concept of Option 2.
The other would be the reconstitution of the United States Intelligence
Board as a National Intelligence Board limited to responsibility for sub-
stantive intelligence production. USIB would, as now, be advisory to
the DCI.
? Department of the Treasury
Treasury favors a combination of Option 2A (Centralized Resource
Control with DCI Control of CIA Production) and Option 4 (Modified
Current Arrangements) which would give the DCI more voice over
resource control in the National Reconnaissance Program '(NRP) and
the Combined Cryptologic Program (CCP) without separating him from
CIA. Treasury also favors in-depth interagency review of a narrower
set of options for changes in the Intelligence Community.
? The Attorney General
The Attorney General did not comment on the leadership options.
? The Department of State
State declined to comment since the Secretary had not reviewed the
report, but suggested that the report should be discussed at a high
interdepartmental level before formulating views and specific recom
mendations for decision by the President.
r Office of Management and Budget
OMB did not comment or make recommendations on the study.
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-5--
ISSUES SEPARATE FROM THE LEADERSHIP OPTIONS
Several important issues have been treated in the report under the
following categories:
preventive measures against possible abuses,
s covert action, and
? management improvements,
Among the agencies and departments responding there is unanimous
agreement that guidelines are needed on propriety for intelligence activities.
.
All respondents favor a Community-wide Inspector General except the DCI
who believes that such a responsibility would be unworkable. under most
options and suggests that this function could be exercised by the NSC
Intelligence Committee (NSCIC) or by PFIAB. Defense, JCS and the
Attorney General favor an arrangement which would give the Attorney
General ultimate responsibility for Executive Branch oversight; Treasury
favors a Special Counsel to the President for this function. An oversight
role for PFIAB is favored by JCS and Treasury.
On the issue of policy coordination, all respondents favor expanded use of
the NSC structure and no one favored creating a separate Intelligence
Advisor to the President,
All respondents agree that covert action should remain in the CIA and that
formal meetings should be reinstituted by the 40 Committee. The Attorney
General wants to become a member of the 40 Committee and Treasury
thinks that additional staff is necessary for the Committee's effective
operation.
There is general opposition to providing Congress with a classified budget
annex on intelligence and to applying standard OMB reprogramming controls
over intelligence funds.
Whether the leader of the Intelligence Community should be a member of
the NSC or remain an advisor to that body is an issue addressed in the
report. The report points out that full membership would strengthen the
DCI's role within the Community while the continued advisor role has the
advantage of keeping intelligence separated from policy. Although depart-
ments and agencies were not specifically asked to comment on this issue,
Defense, Treasury and the DCI favor the continuation of the advisory role.
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Secrecy
This chapter addresses the issue of having classified information
protected by statute rather than just Executive Order. The assumption
is made that, in order to get such a statute passed, an overhaul of the
present classification system is needed. A discussion follows of who
might be covered by proposed sanctions, and of the various ramifica-
tions of providing criminal and/or civil sanctions against unauthorized
disclosure, mainly in terms of contrasting what is desirable with what
is assessed to be the art of the possible in Congress. It is also pointed
out that Congress and its staffs are not subject to such sanctions by
virtue of the Speech and Debate clause of the Constitution. No con-
clusions are reached.
Comment
The chapter provides little of substance. It fails to outline what
Executive Order 11652 says now, how it might be changed in order to
facilitate passage of the revised criminal code (S. 1), currently under
study in Congress., or what types of information other than that dealing
with sources and methods need to be protected (sensitive, high level
diplomatic correspondence, war plans, specifications of critical war-
making components, etc.). There is also no option included which
would ask the President to consider entreating Congress to arm itself
with rules adequate to discourage unauthorized disclosure of informa-
tion by individual members (threat of censure or expulsion, etc. ).
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INTELLIGENCE ACTIVITIES AND INDIVIDUAL RIGHTS -- SUMMARY
1. Constitutional and legal problems presented by intelligence-
interception of wire and oral communications within the United States,
A. Electronic surveillance - Title III of the Omnibus Crime
Control and Safe Streets Act establishes a detailed procedure for
gathering activities.
including a judicial warrant requirement applicable, in general, to
require a judicial warrant.
2. Under two court of appeals decisions -- Browne and Butenko,
electronic surveillance for foreign intelligence and counterintelligence
purposes is lawful under the Fourth Amendment, even in the absence of
criminal investigations. The Title contains a proviso, however, stating
that it was not intended to limit the President's power in the national
security and foreign intelligence area. Thus surveillance in this area
is governed only by constitutional restriction. The present state of the
law is as follows:
1. Under the Supreme Court's 1972 Keith decision, domestic security
surveillances not involving the activities of foreign powers and their agents,
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a warrant, at least where the target of the surveillance is an agent
Under a December 1974, Presidential memorandum, the Attorney
or collaborator of a foreign power.
NSA problems are now, at the President's direction, the subject of
General is vested with authority to approve warrantless electronic
surveillance within the United States for foreign intelligence and counter-
intelligence purposes. Both the Department of Defense and the CIA
conduct electronic surveillance for such purposes abroad., The surveillance
operations of the NSA present some problems under the Brown and
Butenko decisions because it may be practically impossible to limit
intercepts to foreign intelligence information. Broadly speaking, all of
these operations are probably legal under current law, but the special
subject to the same 4th amendment rules as electronic surveillance,
including the Brown-Butenko exception to the warrant requirement.
B. Surreptitious Entry. Surreptitious entries are presumably
study by the Justice Department.
The Attorney General presently has authority, under Presidential
authorizes surreptitious entry for any reason other than electronic
surveillance for foreign intelligence purposes; no Presidential directive
directive, to authorize. surreptitious entry to install electronic
surveillance.
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C. Mail Covers and Openings. Mail covers ..:- the recording of
information on the outside of mail is not subject to Fourth Amendment
restrictions. It is, however, governed by postal regulations that do
not clearly specify which agencies may request covers and for what
purposes. Mail opening is impermissible under the Fourth Amendment
without warrant, but again this is probably subject to the Brown/Butenko
exception for foreign intelligence and counterintelligence. Statutes,
however, prohibit mail openings without warrant, and violations are
subject to criminal penalty.
D. Other investigative techniques, such as use of informers,
secret agents, physical surveillance and interrogations do not violate
the Fourth Amendment or any statute. It is conceivable, however,
that if they are not justified by legitimate governmental purposes they
may, in some circumstances, violate First Amendment rights.
2. Constitutional and legal problems relating to information
dissemination and use.
Dissemination of information obtained through intelligence
investigations for partisan or otherwise illegitimate purposes could
violate First Amendment or due process rights. The recently enacted
Privacy Act precludes all disclosure of agency records without
consent except, under certain limited circumstances.
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EXECUTIVE ORDER
ESTABLISHINGLREENCECTIONS ON FOREIGN
INTEL ACTIVITI
lationshiPbetween the
Previous guidance on the re
agencies and united states citizens was
intelligence
b
hip
This order .clarifies that relationsy
. uncle-3- -
those activities which are prohibited. With
ilin
g
ta
de
out setting forth all restrictions under.which foreign
l1igence agencies are obliged to operate, nor
'
nte
rules, regulations, or
derogating from any Other laws,
f these
s o
directives further restricting the activitie
it is hereby ordered as follows:
agencies,
SECTION 1. Definitions. As used in this Order the
meanings ascribed to them
following terms shall have the
below:
(a) "Collection means the gathering and storage,
or the gathering and forwarding, of information,
means activities within
(b) "Domestic activities"
the united states.
?Foreign intelligence
(c)
on the capabilities,
other than foreign counterintelligence,
organizations
activities of foreign powers,
intentions, and
MORI/CDF
C03089702 pages
21-29
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2
(d) "United States citizens" means United States
citizens and permanent resident aliens.
(e) "Foreign counterintelligence" means activities
conducted to protect the United States and United States citi-
zens from foreign espionage, sabotage,?subversion, assassina-
tion, or terrorism.
(f) "Incidental reception" means the receipt of
information, collection of which by an agency is otherwise
prohibited by this order and which is collected in the
course of an agency's authorized foreign intelligence or
counterintelligence activities.
(g) "Foreign intelligence
agency"_. means any depart-
gent or agency of the United States government, or component
thereof, which is primarily engaged in foreign intelligence
or foreign counterintelligence activities.
SECTION II. The following activities shall not be
conducted either by any foreign intelligence agency or by
any other department or agency in pursuit of foreign
intelligence or foreign counterintelligence:
(a) Physical surveillance of United. States
citizens within the United States except to the extent that
such surveillance is in accordance with law and
the foreign
surveillance
is:
(1) Upon written approval by the head of
intelligence department or agency; and is
of individuals currently or formerly
employed
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3
by that agency, its present or former contractors, or such
contractors' employees, for the purpose of protecting
foreign intelligence sources and methods from unauthorized
disclosure; or
(2) Of a person having contact with any
persons described under subparagraph (1), or with foreign
nationals in the United States in connection with foreign
intelligence or counterintelligence operations, but only to
the extent necessary to identify such person.
(b) Electronic surveillance of United States
citizens except in accordance with law and under procedures
approved by the Attorney General, and in no instance shall
the Central Intelligence Agency engage within the United States
in the electronic surveillance of United States citizens.
(c) Testing of electronic surveillance equipment
within the United States except in accordance with law and
under procedures approved by the Attorney General.
(d) Any opening of United States mail or examina-
tion of envelopes except in accordance with the provisions
of United States postal laws and regulations..
(e) Access to Federal income tax returns or
information except in. accordance with statutes and
regulations.
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tax
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4
(f) Infiltration or secret participation in any
organization composed primarily of United States citizens
for the purpose of reporting on its activities or
membership.
(g) Experimentation with drugs on human subjects.,
except with the informed consent of each such human subject
and in accordance with the guidelines of the National Com-
mission for the Protection of Human Subjects for Biomedical
and Behavorial Research.
(h) Operation of a proprietary company on a
commercially competitive basis with United States businesses
except to the minimum extent necessary to establish com-
mercial credibility. No investments by a proprietary
company shall be made on the basis of any substantive
intelligence not available to the public.
(i) Collection, evaluation, correlation or
analysis, of information other than information from public
sources or given voluntarily by its subject concerning the
domestic activities of United States citizens except:
(1) Information about a United States citizen
who is reasonably believed to be involved in international
terrorist or narcotics activities or working in
collaboration
with a foreign nation or organization, but only if the infor-
mation is collected abroad or from foreign sources in the
United States in the course of an authorized foreign intelli-
gence or foreign counterintelligence activity.
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5
(2) Information. related to the performance
of agency contractors or prospective bidders, for purposes
of contract administration.
(3) Information concerning criminal activities
received through incidental reception, provided it is only
transmitted to law enforcement agencies with appropriate
jurisdiction.
SECTION III. Any federal agency seeking foreign
intelligence within the United States from United States
citizens shall disclose.to such citizens its true identity.
When collection of foreign intelligence within the
United States results in the incidental reception of infor-
mation from unknowing United States citizens, however, the
receiving agency shall be permitted to make appropriate
use of-such information.
SECTION IV. No information on the domestic-activities
of United States citizens shall be transmitted to a foreign
intelligence agency (or to any other federal agency to aid
it in engaging in foreign intelligence or foreign counter-
intelligence) from any other federal agency unless:
(a) The information had been lawfully compiled
by the transmitting agency in furtherance cf its authorized
mission;
The information is of a type which the
receiving agency would itself have been permitted to
under the provisions of this order;
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6
(c) The information is provided in furtherance
of the authorized mission and responsibilities of the
receiving agency;
,(d) The information is provided in good faith
under a reasonable belief that the information is relevant
to the receiving agency; and
(e) The information is provided under guidelines
and procedures issued by the Attorney General designed to
ensure the protection of the. constitutional and statutory
rights of United States citizens.
SECTION V. Nothing in this order prohibits an agency
from retaining information when retention is required by
law, such as retention required to preserve evidence or
other information for possible court action.
SECTION VI. No foreign. intelligence agency shall:
(a) Provide services, equipment, personnel or
facilities.to the Law Enforcement Assistance Administration
or state or local police organizations of the United States
except as expressly authorized by law; or
(b) Participate in or fund any law enforcement
activity within the United States except as may b
authorized by law.
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Provided, that this prohibition shall not
(1) Cooperation between a foreign intelligence
agency and appropriate law. enforcement agencies for the
purpose of protecting the personnel. and facilities of the
.foreign intelligency agency or preventing espionage or
other criminal activity related to foreign intelligence or
foreign counterintelligence; or
(2) Provision of specialized
equipment or
technical knowledge for use by any other Federal department
or agency.
SECTION VII. Foreign intelligence agency personnel
may not be detailed elsewhere within the Federal govern-
ment except as consistent with law. Employees so detailed
shall be responsible to the host agency and shall not report
to their parent agency on the affairs of the host agency
except as may be directed by the host agency. The head of
the host agency and any subsequent successor shall be
informed of the detailee's association with the parent
agency.
SECTION VIII. Nothing in this Order shall prohibit
any agency having law.enforcement responsibilities from
discharging such responsibilities pursuant to law. Nor
shall this Order apply to any activities of the Federal
Bureau of Investigation.
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8
SECTION IX. Nothing in this Order shall prohibit any
agency from engaging in the collection, evaluation, correla-
tion and analysis of information on current or'former
employees (including military personnel and employees of
other Federal departments or agencies detailed for service
with the foreign intelligence agency); applicants for
employment with such agency; voluntary sources or contacts
or individuals who in good faith are reasonably believed
to be potential sources or contacts; current and former
contractors and current or former employees or applicants
for employment by such contractors; and all persons not
included above who must be given access to classified
information which could disclose foreign intelligence or
foreign counterintelligence sources and methods; provided,
however, that collection of such information is done only
in accordance with law and by written authority from the
head of such agency to determine the fitness of such persons
to become or remain associated with such agency or to have
such access, or in the case of a former employee to
investigate matters related to his period of employment,
or in the case of a .voluntary source or -contact,,' -to-determine
suitability or credibility.
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SUMMARY OF VIEWS
PRESENTED BY
SELECTED OUTSIDE EXPERTS
The following are major points from discussions over the past
several days with McGeorge Bundy, John McCone, Admiral Moore
Paul Nitze, David Packard and Ted Sorensen.
oversight will always be a difficult problem, particularly if Congress
Congress. This will help Congress in its oversight role, although
- More intelligence of an open nature should be, made available to
for Presidential action will be during the Congressional recess.
beating the Congressional committees to the punch. A good opportuni
reforming the Intelligence Community; there is political merit in
The President, as Commander in Chief, should take the lead in
McGeorge Bundy
- The 40 Committee has never been effective. A "President's many'
attempts to deal with prospective programs.
is required to monitor seriously activities in this area. Moving
ment and pose difficulties for the conduct of its normal operations.
clandestine operations to State would change the character of the depart-
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less. The national estimate is an extremely important product
hand, the AGDA Advisory CCommittee, for example, has had substantial
impact and given the President access to the ADA that he would not
otherwise have had.
- A two.hatted DCI will probably never work. Allocating budgets
is a management problem and seems more appropriate. for OMB, the
instrument created for these purposes.
The national estimate process has never. worked very well.
Reports tend to be done on given situations at times when one cou d care
- PFIAB has been a free-wheeling body that has been helpful
from time to time, but it has. never had an adequate staff and would
probably be overburdened if given an oversight role. On the other
- DIA has not provided the oversight to DOD intelligence activities-
is necessary to improve its quality.
uniformly wasted. The President can take responsibility for actions
of his Administration. The distinction between diplomatically-necessary
- Time spent in insuring "plausible deniability" was almost
which was intended.
deniability in such cases as the U-Z or.the Glorar Explorer,
domestic accountability, was drawn.
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John McCone
- The President must make up his mind how the Intelligence
Community should be organized, do what he can to accomplish this
by Executive Order, and propose legislation for the remainder- Congress
will do nothing without Presidential initiative.
CIA has been tarnished and should be done away with. A new
agency should be establish as part of the National Security Council. The
director of the agency would be responsible for all existing CIA. operations,
would coordinate all intelligence agencies budget responsibility for all
intelligence activities. He would be Chairman of USLB and have direct
access to the President. There should be two deputy directors, one for
intelligence matters and one for community affairs.
- A permanent subcommittee of the NSC should be established to
have oversight responsibility for the new intelligence agency. It would
also review 40 Committee actions.
-- If CIA continues to exist, three steps should be taken:
(1) The General Counsel should be made a Deputy Director with acres
to the entire agency; (2) The Inspector General position should be given
more status and strengthened; (3) There must be a. regular program of
review of ongoing activities.
MORI/CDF
C03206809 pages
31-37
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- A Joint Congressional Committee on Intelligence should be
formed along the lines of the Atomic Energy Committee. The Atomic
Energy Committee has never had a problem with secrecy.
- Legislation is necessary to impose penalties on government
employees who disclose secrets during or after their period of service
in government.
- There have' been problems with DIA's production., partly because
it has been staffed by the Joint Services and the services keep the best
officers for themselves. Further, intelligence is not a high priority.
within the Services.
Admiral Moorer
-- Radical change in the Intelligence Community should be avoided.
The primary problem is not the organizational structure but people.
- It would be a mistake to centralize intelligence gathering under
one person. The DCI cannot control or schedule, for example, the real
time activities of submarines or other military collection agents, nor
can he defend them when they run into trouble. In addition, there is a
need for duplication and competition in intelligence as there is in R&D
matters.
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- NSA is a valuable instrument, but individual combat units
should have their own intercept teaxns. Wartime activities cannot
be centralized and run from Washington.
- The open hearings in the House and Senate are a "national
disaster". They are. exposing secrets and telling the Soviets a great
deal about the effectiveness of our intelligence activities, thus
permitting the Soviets to develop countermeasures.
- A Congressional oversight committee will pose severe operational
problems. Leaks will occur and intelligence information will be used
for political purposes. The President needs to take action to deal with
the pressure from Congress, but it should not be drastic,,
Paul Nitze
faces are cosmetic and any changes must be cosmetic as well. There is
a danger, however, that we will not do what needs doing.
The NRO works well under EXCOM as far as Defense and CIA
are concerned but not, perhaps, from OMB's point of view. A perennial
- .To some degree, the problems .the Intelligence Community now
problem is the allocation of costs to various programs, and making
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new equipment require a great deal of familiarity with the programs and
character. The equipment is very expensive in certain intelligence
gathering .systems and new tasks require new "beasts". Decisions on
decisions based on, the allocations will always have a highly judgmental
appropriate government agencies, and the maxi crises which will probably
always be handled on an ad hoc basis, depending on the needs and pre--
dilections of the President.
- There was much more systematic handling of 40 Committee matters
Community, there is no point in further downgrading CIA. Nor should
covert activities be separated from the rest of its operations. The DCI
should have the National Estimating Staff. The old Board of National
Estimates worked better than the present NIO system, where the National
Intelligence Officers farm out estimates to the departments for writing.
-- Crisis management is better institutionalized than it was a decade
ago. There are differences between mini crises:'which need not come
to the President and can be handled on a coordinated basis by the
As organizational changes are considered for the Intelligence
the technologies.
10 years ago than there is today.
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The government has never adequately dealt with the problem
of a net assessments". At one time the initiative existed in State
in the Policy Planning Staff under Acheson to perform net assessments,
and under Eisenhower the NSC had the role. The CIA is not and should
not be in the net assessment business, nor should the NSC; State
is his candidate.
Both national and tactical intelligence are necessary so that
(1) we know what might happen and (2) what to do if it happens. The
military must know all about Soviet radars, not just where they are.
DIA's analysis has tended to be influenced by the military
services' interests. Perhaps DIA should report directly to the new
Deputy Secretary of Defense for Intelligence, and not the Joint Chiefs.
personal representative and did not get into legal or moral issues.
Attorneys General who have participated in the past did so as the President's
participate in 40 Committee rxieetings to focus on the legality of proposals.
- Consideration should be given to having the Attorney General
David Packard
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Ted Sorensen
- The key issue for the President to focus on is clandestine
operations, including covert action. Because of the great risk of
exposure, covert action is in the national interest only in very rare
instances. One good measuring stick is whether an activity is -still
worth it if it becomes known publicly. Covert activity, however, should
not be banned by law. Some flexibility is required. If covert actions
were banned, the vacuum might be filled in a totally uncontrolled manner.
.> On the question of Congress' right to know, the Executive Branch
should try to work out something with Congress: The voluntary arrange--
ment worked out with Chairman Pike on the publication of classified
materials was a good one, and might be the basis for a permanent arrange-
ment.
- There should not be criminal statutes governing misuse of
classified information by non-government (or contractual) employees.
i there is a broadening of the criminal statutes, there must be
concurrent reform of the classification system.
There is great potential for abuse in.the relationship between
the Intelligence Conu-ziunity and private enterprise. Contact between
CIA and private companies should be restricted; if there i
neutral observer should sit in, such as somebody from the
Dep art--. - vnt.
contact, a
State
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-- Congress must increase its oversight capability, but not
in such a way that it encroaches on Executive Branch. powers.' Congress
cannot run CIA, nor can it decide on specific covert operations.
CIA must be more accountable to policy-makers, including
the Secretary of State and ambassadors in countries where the CIA
has operations.
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Each Select Committee has forwarded, on an informal and
confidential basis, their initial designs regarding recommendations
for legislation they intend, to propose.
such oversight, but the Senate, to date, has made no such preliminary
Both Committees propose that their work essentially be continued
in a more permanent capacity by the creation of a single oversight com-
mittee in each House. The House would also offer to join the Senate in
recommendation.
Select Committee proposes an expansion of the.present Pike agreement
to include a triumvirate of the Speaker and Majority and Minority Leaders
as the arbitrators of disputes with the Executive rather than the Judiciary.
It also calls for an independent classification review commission (ap-
pointed by the President and confirmed by-the Senate) which would review,
upon request by any individual or group, any classified material, with
a view toward de-classifying it (majority vote required). The President
would have a veto, however, by virtue of written certification that to
do so would cause "grave and immediate danger to the defense of the
U. S. " This review commission would also have the option of renewing
the period of classification (advocated as being for five years only)
by majority vote. This renewal authority would only extend to one
renewal period, however. An interesting addition to these recommenda-
tions, however, is the call for the House to adopt strict and comprehen-
sive rules to safeguard unauthorized disclosure'of classified information
supplied in confidence to them by the Executive. These rules would
include procedures for censure or even expulsion of an individual
member who violates or ignores such rules.
The thrust of these recommendations would be to grant explicit
authority to Congress to declassify Executive Branch materials and to
also remove from immediate Presidential supervision the power to
withhold classified Executive Branch materials requested by anyone..
The House proposal consists of three aspects; fiscal procedures;
Congressional oversight; and secrecy. Concerning secrecy, the House
The House also proposes a regularization of the budget review
the DCI to prepare a community-wide intelligence budget, (3)
by. (l) making the budget public ("big dollar" figures only), (2) requiring
process regarding all intelligence expenditures. They would do this
MAY CONTAIN
CONGRESSIONAL
MATERIAL
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empower the GAO to audit all intelligence spending.
require an annual authorization for all intelligence activities, and (4)
to Congress coincidently with it going to OMB and the President -- to
say nothing of Presidential prerogatives to withhold all but the final
These proposals would, if enacted, essentially "uncover" the way
intelligence activities are organized and managed in this country. It would
also force a change in the community's structure to the extent of giving
the DCI budgetary authority he does not now have, and abrogate that which
OMB does have by requiring that the DC T's "draft" budget be submitted.
product from Congress.
Regarding oversight, the House Select Committee proposes that over-
sight per se be shared with other committees but that legislative juris-
diction be exclusively in the hands of the new committee. As with the
Senate proposal, the head of each department or agency" hould be
obligated to keep the committee "fully and currently informed" regard-
ing all programs relating to foreign intelligence and covert operations.
The implications of the phrase "fully and currently" are obvious. Aside
from the fact that the Senate may consider this requirement to be an
encroachment on its Constitutional role regarding foreign affairs, the
prospect for preemptory challenges by the Congress concerning the
conduct of foreign activities heretofore delegated by the Constitution
solely to the President is upon us.
As with the Senate Select Committee proposals, these recommendations
taken together constitute an unabashed desire to commiserate on, and
if necessary pre-empt the conduct of, the nation's foreign affairs. The
only redeeming feature of them is the apparent attempt to recognize
that along with these new prerogatives goes the responsibility to safe-
guard the unauthorized disclosure of classified information.
amorphous intelligence "community." Some questions are, however, stated
parallels points made in the NSC/OMB study. The role of the DCI is
stressed, mainly in terms of "how to get a handle" on the seemingly
The draft Senate Select Committee proposals consist of an "issues" paper
and a draft bill to create a permanent Senate Committee on Intelligence
Activities. The Issues Paper which the Senate Select Committee has
asked us to consider is basically sound in terms of identifying the issues
and stating the decisions which need to be made, and, in many instances,
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so as to prejudge the answers and there are some inaccuracies, over-
simplifications or over-statements. The role that Congress will, play
in the intelligence business is probably the major "issue" between the
Executive and Legislative branches.
The draft bill would,like the initial proposals put forth by the House
Select Committee, restructure the relationship between Congress and
the Executive regarding intelligence and, by extension, the conduct of
foreign affairs. In effect the draft bill to create a Committee on Intelli-
gence Activities would:
-- make the Legislative Branch co-equal with the Executive
and an intelligence consumer,
- give the Senate the implicit right to overrule the President
on public disclosure of intelligence information, and
- require intelligence agencies to keep the Committee "fully
and currently informed" on all intelligence activities.
While the bill does not cover the aspects of protecting unauthorized
disclosure within the Senate or the option of a "third agency of appeal"
for de-classification, it is at the same time more specific and more
comprehensive regarding obligations and requirements encumbent upon
the Executive Branch, As an example,the draft Senate bill would allow
the committee to pre-ordain "specific activities. deemed as especially
sensitive," the conduct of which could not be undertaken without express
approval of the committee.
Committee bill creates the overall impression that the Executive and
Legislative Branches have an equal right to receive and oversee intel-
ligence. In fact, both give the Legislative Branch a greater than equal
role in the release of material. Even if the President submits a written
notice to either committee that a given piece of information should not
be released, the committee can then, if it desires, refer the matter to
Both the House Select Committee proposals and the draft Senate Select
In addition, both proposals charge the head of any department or agency
involved in intelligence activities to furnish any information requested
the House or Senate floor for action.
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by the committee(s) on matters within its jurisdiction and in one case
(the Senate) does not permit initiation of any intelligence activity
specified as "sensitive" by that committee, until the Committee has
been fully informed of the activity and has had the opportunity to pro-
vide "advice" to the Executive on it. Both proposals also allow the
committee(s) to authorize appropriations for all foreign intelligence
agencies,thus undercutting the current jurisdiction of appropriations
committees.
In sum, we have a real fight on our hands. If the President is to retain
his Constitutional prerogative to conduct all aspects of foreign affairs
(covert operations, clandestine intelligence, overhead reconnaissance,
etc.), he must resist the encroachment represented by the proposals of
these two committees.
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