RESULTS OF 29 AUGUST 1979 CHARTERS WORKING GROUP MEETING WITH SSCI STAFF

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86-00101R000100020009-3
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 10
• Document Creation Date: December 14, 2016
• Document Release Date: November 21, 2002
• Sequence Number: 9
• Publication Date: September 6, 1979
• Content Type: MF

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Acting ,lie -} nfonnation Services
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l Director of
Communications
F.Y.I.
2- Director of
Attached is a copy of the
Data Processing
results of the latest meeting
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between the Charters Working
3' Director of
Group and members of the SSCI
Finance
staff.
a. Director of
No action is required.
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Director of
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6 Director ,uf
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7. Director of
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Director of
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Attachment is memo re Results of
29 Aug 1979 Charters Working Group
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CENTRAL INTELLIGENCE AGENCY
WASHINGTON, D.C. 20505
6 September 1979
MEMORANDUM FOR: Department of Defense
Attn: Deanne Siemer
Department of Justice
Attn: Kenneth C. Bass
Department of State
Attn: Jeffrey Smith
Department of Treasury
Attn: J. Foster Collins
Office of Management and Budget
Attn: Arnold E. Donahue
Federal Bureau of Investigation
Attn: James Sturgis
National Security Agency
Attn:
National security ounci
Attn: Donald Gregg
Office of the Vice President
Attn: Dennis Clift
Special Assistant to the
General-Counsel for Intelligence
Community Affairs
SUBJECT: Results of 29 August 1979 Charters
Working Group Meeting with SSCI Staff
Attached for your information is a memorandum which
summarizes the results of a 29 August 1979 meeting between
representatives of the Charters Working Group and the SSCI
staff concerning the staff's counterdrafts of Titles I and
II.
STAT
STAT
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OGC 79-08169
6 September 1979
STAT FROM: Special Assistant
Intelligence Community Affairs
SUBJECT: Discussion of Title I and Title II Issues by
Representative of the Charter Working Group and
the SSCI Staff -- 29 August 1979
1. Attendees:
Working Group - Dan Silver
SSCI -
John Elliff
Keith Raffel
Martha Talley
Unless otherwise indicated all section references are to the
SSCI Title I draft of 17 July 1979 and the Title II draft of
18 July. The views and positions stated by the SSCI staff
represent, according to them, the views of the Subcommittee
on Charters and Guidelines and in some instances of other
senators on the Committee.
Remaining Title I Issues
2. Section 131 - the SSCI was advised that this section
is unacceptable to the Working Group (WG). Dan Silver
stated that the question of the standard for special activities
should be addressed in Sections 132 and 133. He stated that
the WG was concerned that the section might at some future
time in some way be construed to have a substantive effect.
It was pointed out that the legislative history could discuss
the circumstances in which special activities could be
undertaken.
3. Section 132 -- there was a wide-ranging discussion.
The SSCI staff was concerned about granting DoD authority to
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conduct special activities "when military activities are
involved" without arequirement for a finding or approval
by the President that DoD should conduct the activity.
This led to a short discussion of deception and quick agree-
ment that a separate session with appropriate DoD representa-
tives was needed to resolve this issue.
The SSCI agreed to drop the "in writing" requirement
in 132(a).
Section 132(b) -- the SSCI agreed to consider changing
the requirement for a written Presidential determination to
an arrangement whereby the NSC or a committee thereof would
approve provision of support for "low-risk" special activities.
(Apparently they intend to continue to require Presidential
approval (but not in writing) for support for such activities
involving substantial resources or risks if the support will
be provided by other than the department or agency conducting
the activity.)
4. Section 133 -- the SSCI staff agreed that the standard
in 133(a)(1) and (2) should be "important" instead of
"essential."
Dan Silver stated that the WG position is that 133(a)(3)
and 133(b) should be covered in Presidential guidelines under
133(c). John Elliff pointed out that the first sentence of
133(b) could hardly be objectionable since it comes from
the Administration draft (232(a)). He stated that they
would consider putting the second sentence (requiring the
recording of the views of each member of the NSC) in legisla-
tive history. The remaining language in 133(b) requiring
attendance of the SECDEF, SEC State, AG, and DNI, or their
representatives, in order to reach a decision or make recom-
mendation to the President concerning a special activity
was identified as representing a KEY ISSUE for the SSCI.
(Apparently the SSCI feels that without this language
the review, recommendation, and approval functions of the
NSC or a committee thereunder, regarding special activities
might be exercised by "stand-ins" or a routine basis.)
John Elliff stated that 133(a)(3) is also a KEY ISSUE
for the SSCI. He argued that the requirements therein are
the heart of explaining to the public what special activities
are all about. Elliff saw the language as all the more
crucial if Section 131, the purpose statement, is to be
deleted, and suggested 133(a)(3) as a replacement. Dan
Silver stated that the WG's quarrel is not so much with
the substance of the requirement but rather with saddling
the President with it by statute. Elliff suggested incor-
porating the language in 133(b) as something to be covered
in NSC review and Dan Silver said that would be preferable
to its current configuration.
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John Elliff stated that the SSCI wou a the mini-
stration language which allows an NSC committee member to
force a Presidential finding on a given special activity
(Administration 232(c)).
Dan Silver pointed out that the SSCI neglected to
repeal Hughes-Ryan. (John Elliff asked if the Administration
expected the SSCI to ensure, prior to introduction to the
bill, support by the other affected Senate Committees for
repeal of HughesRyan. Dan Silver expressed doubt that such
was the Administration's expectation, but that vigorous
support for repeal by the SSCI was expected at a minimum and
that HughesRyan repeal was such an important element of what
the Administration wanted to get out of the legislation that
he could not predict what would happen if repeal failed to
remain in the bill as it moved forward in Congress. Keith
Raffel stated that the quid pro quo for repeal of Hughes-
Ryan was acceptance of "fully and currently informed" language
for Section 142(a) and acceptance of Section 135, which
states that activities requiring authorization or reaffirmation
by the President shall be considered "significant anticipated
activities" for the purpose of Section 152. It was agreed
that further discussion of Section 152 would be postponed
until Bill Miller could participate.)
5. Section 134 -- the SSCI staff is developing new
language which will require only that the President establish
procedures for the approval of sensitive collection activities,
which procedures "may" require reviews and findings.
6. Section 141 -- it was agreed that there could be no
useful substantive discussion because our respective positions
are too far apart. Dan Silver suggested that the SSCI
accept reliance on procedures to deal with the professions.
Such procedures might be patterned after CIA regulations on
the subject. Elliff suggested that this might be possible
if CIA regulations dealt with the use of academics abroad.
He admitted that there was no expectation of a total ban on
the use of journalists and academics.
7. Section 142 -- the SSCI staff agreed to substitute
"for the purpose of influencing public opinion" for "likely
redistribution." The section would thus read something like
this: "No entity of the Intelligence Community may pay for
or otherwise knowingly cause or support distribution of any
book, magazine, article, periodical, film, or video or audio
tape for the purpose of influencing public opinion within
the United States unless the involvement of the United
States Government is acknowledged publicly."
8. Sections 143 and 144 -- the SSCI staff stated that
the senators would be willing to drop assassination, but
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that they wanted to retain the criminal prohibition on
unconsented human experimentation. John Elliff acknowledged
that inclusion of Section 144 would mean OMB would want to
clear the language Executive Branch-wide and that this would
delay the charter process further. Dan Silver pointed out
that inclusion would lead to referral of the legislation to
other committees and reminded the SSCI staff that this
subject was beyond SSCI and IC expertise.
9. Section 146 -- the SSCI agreed to delete this
section.
10. Section 147 -- the SSCI staff agreed to delete "to
maintain essential cover and proprietary arrangements" in
Section 147(2). This would mean AG procedures for all
covert procurement not covered under Section 147(1). Dan
Silver pointed out that we would need language in legislative
history to the effect that the section does not cover CIA
payment for educational training of employees under cover.
That was agreeable to the SSCI staff.
11. Section 151 -- Dan Silver stated that the WG considers
the language in this section non-negotiable, since it was
arrived at only after a long, drawn-out process involving
the IOB, DoJ and the IG entities. The SSCI staff agreed
that the standard for reporting in 151(c)(4) is too low and
stated they would be willing to modify it to require reports
from the IOB to the AG only if the Board concludes that an
intelligence activity has been conducted in an illegal
manner. The SSCI will take this up with the IOB.
Section 151(d) -- the SSCI staff agreed to adopt our
language on reporting (Administration 141(d)). However,
they want to add language setting forth the duties of the
general counsels and inspector generals similar to that
contained in Titles IV-VI. They will also add language that
will allow the designation of any official -- not just one
from the IC entity -- to perform the functions of general
counsel and inspector general. This would permit the Legal
Adviser, State, for example, to perform the function of
general counsel for INR.
12. Section 152 -- the SSCI staff agreed to consider
adopting our language in 152(b) and accepted our 152(c).
John Elliff argued for retaining the SSCI "notification of
waiver" language in their 152(e). Dan Silver objected. The
SSCI will take this under advisement.
13. Section 153 -- the SSCI staff agreed to delete the
word "lawful" in 153(b) and to reinsert the words "or officer
or employee" after "member."
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14. In a discussion with Keith Raffel on 31 August,
the following additional points and comments were made on
behalf of the WG:
a. 151(e) - add "or his designee" after "Attorney
General" in the stem.
b. 151(c)(1) - reinsert the word "serious."
c. 151(h) - change to reflect the Administration
Section 141(f)(3) (see SSCI 151(f) (5)) so that it is
the entity heads' responsibility to ensure employee
cooperation with the IOB, General Counsel and IG.
d. 153(e) - in the item delete "and" before "(c)"
and add "and (d)" after "(c)" so that the provision for
select committee staff secrecy agreements and security
clearances is enacted as an exercise of the rulemaking
power of the House and Senate.
e. 154 - add "sources and methods" after "United
States" in accordance with Administration section.
Title II Issues
15. We began with a general discussion of the SSCI's
definition of "covert technique" in Section 202(b)(2). Dan
Silver stated that the WG might recommend acceptance of the
SSCI's scheme if the President were the one who determines
what techniques are covert techniques. Dan Silver suggested
the definition be rephrased to read "'Covert technique'
means an extraordinary technique and any other technique to
collect information that the President determines requires
his approval." It was recognized that this might be one way
to deal with the Administration's position that it will not
go into detailed procedures in statute for other than Fourth
Amendment techniques and "placing of agents"in U.S. organiza-
tions. John Elliff asked if the Administration would go
beyond "placing of agents" in designating techniques as
"covert techniques." Dan Silver stated that the Administration
was probably not in a position at this time to commit itself
on which techniques would be considered "covert." In addition,
he pointed out that this approach to the problem would not
work if the SSCI were to write a detailed legislative history
establishing guidelines for the designation of techniques.
John Elliff stated that he was troubled most by the
standard ("important") in the Administration draft (Section
216) as the basis for initiating directed collection of
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foreign intelligence. Dan Silver stated that essentially
there were three solutions: (1) no charter, (2) address
Fourth Amendment techniques only and rely on vigorous oversight
and (3) build in a "fudge factor" by allowing the Executive
(President) to determine when the circumstances make a
technique a "covert technique"requiring his approval. In
this regard he said the WG did not object to the standard in
Section 205 (providing that covert techniques can be used
against U.S. persons for FI collection only in extraordinary
circumstances where authorized by the President). He stated
that what we need is an escape hatch to collect important FI
in extraordinary circumstances and not blanket authority for
FI collection.
16. Section.202 (b)(6) definition of "foreign electronic
surveillance." Dan Silver asked what the SSCI was trying to
accomplish by changing the language from "in circumstances
in which a warrant would be required if undertaken for law
enforcement purposes in the United States" to "in circumstances
in which a court order would be required if undertaken
within the United States." John Elliff indicated the change
was intended to require a warrant for the use of pen registers,
as in FISA. The SSCI staff agreed to insert the words
"under the Foreign Intelligence Search and Surveillance Act
in the United States" after "court order" and before "would
be required," and to delete "if undertaken within the United
States." It was agreed that the WG and SSCI would think
further about this change. (It was also agreed that the
discussion applied to the definition of "foreign physical
search.")
17. Section 202(b)(8) - the SSCI staff agreed to
delete the word "publicly" from the definition of "foreign
power" in 202 (b) (8) (c) .
18. Section 202(b)(10) - definition of "minimization
procedures." The SSCI staff stated that the language pro-
viding that nonpublicly available information that is evidence
of a crime can be disseminated "for law enforcement purposes"
was intended to impose the same limitation as in FISA. John
Elliff stated that the SSCI would put in legislative history
that "for law enforcement purposes" means "for the purpose
of preventing a crime or enforcing the criminal law," the
language of the Administration definition. Dan Silver
indicated this would be satisfactory.
19. Section 203 - general authority for activities
that concern U.S. persons. The SSCI staff stated that Bill
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Miller believes the section should be cast as a prohibition
followed by exceptions. Dan Silver stated that the IC needs
authorizing language (as in Administration Sections 211 and
213). John Elliff stated that Title I provides general
authority. (If he was referring to Section 111, Authorization
for Intelligence Activities, the section may not be sufficient
since it provides that IC entities may conduct intelligence
activities "only in accordance with the provision of this
Act" and that Title I does not prohibit departments and
agencies from collecting, retaining, and disseminating
information if "otherwise authorized to do so.") The SSCI
staff said they Would consider phraising Section 203 along
the lines of "when conducted in accordance with this section
(or title) activities may be directed against etc."
The SSCI staff agreed to change "lawfully authorized
function" to "lawful function" in 203(a) and (d).
Section 203(b) - the SSCI staff agreed to consider the
WG's language "for the purpose of interfering" to replace
"in a manner which interferes."
Section 203(g) - the SSCI will consider adopting the
Administration language regarding measures to protect the
security of personnel, installations, activities, etc.
Section 203(h) - Dan Silver objected to the language
applying Title II to all departments and agencies. John
Elliff stated that there was no provision in Title I limiting
the conduct of intelligence activities to entities of the
intelligence community. He views this as a particularly
large "loophole" for a "Plumbers" operation, citing the
Ellsberg case as a specific example. Nevertheless, the SSCI
staff agreed to consider deleting this language.
20. Section 204(a) - Dan Silver objected to the apparent
intention that all activities involving U.S. persons would
require AG procedures. The SSCI staff agreed to insert the
word "intelligence" before "activities" in 204(a). (John
Elliff stated that the section as worded would actually
permit an operation like COINTELPRO, if authorized and con-
ducted pursuant to AG procedures, but that the SSCI was
prepared to "take the heat" if this issue were raised.
21. Other Issues (mentioned but not discussed at
length)
a. Section 206 - Collection of CI and CTI.
Apparent higher standard for CI collection against
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U.S. persons involving other techniques than for
"extraordinary techniques."
b. Section 207 - Collection of information
conce rning potential sources. Absence of a provision
for extension of time and limitation of techniques
(the SSCI apparently has no problem with providing
for an extension of time for conducting such collection.
Also they said that "interview" was not intended to
preclude pretext interviews. There was a brief discussion
of possibly specifying the techniques to be either
permitted or prohibited. One technique the SSCI
would want to prohibit is access to records of
financial institutions.)
22. On 31 August 19791 and the under-
signed informed Keith Raffel of the other WG positions on
Title II up to Remedies and Sanctions. With respect to
issues concerning remedies and sanctions, we conveyed the
positions outlined in a 17 August 1979 memorandum from
to the WG providing an analysis of the SSCI's
Distribution:
1 - Each Working Group Member
1 - General Counsel
1 - OLC,
1 - DDA,
1 - DDO/~
1 - OGC SUBJ: LEGISLATION - Charters (GWC Holding)
1 - OGC Chrono
1 - GWC Signer
STAT
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